State v. Williams ( 2015 )

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STATE OF CONNECTICUT v. STANLEY WILLIAMS
(SC 19250)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued March 16—officially released July 28, 2015
Lisa A. Vanderhoof, assigned counsel, for the appel-
lant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Amy Sedensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROGERS, C. J. This case raises the question of
whether the trial court abused its discretion in disal-
lowing a criminal defendant from introducing expert
testimony on the fallibility of eyewitness identifications.
The defendant, Stanley Williams, appeals1 from the judg-
ment of the Appellate Court affirming his conviction,
following a jury trial, of two counts of robbery in the
first degree in violation of General Statutes § 53a-134
(a) (3), two counts of unlawful restraint in the first
degree in violation of General Statutes § 53a-95 (a),
and being a persistent dangerous felony offender in
violation of General Statutes § 53a-40 (a). State v. Wil-
liams, 146 Conn. App. 114, 116–17, 75 A.3d 668 (2013).
The defendant claims that the Appellate Court improp-
erly concluded that the trial court acted within its dis-
cretion in precluding his expert from testifying because
the Appellate Court reasoned that the eyewitness in
question had sufficient prior familiarity with the defen-
dant such as to make her identification of him reliable.
We disagree with the defendant’s claim and, accord-
ingly, affirm the judgment of the Appellate Court.
The jury reasonably could have found the following
facts, which the decision of the Appellate Court aptly
recounts and the record otherwise reflects. On May 12,
2009, the Ideal Package Store on Hill Street in Water-
bury (liquor store) was robbed when Satnam Kaur,
whose husband owned the store, was working there
alone. Id., 117. The robber pretended to shop for beer,
then, when no other customers were in the liquor store,
grabbed Kaur, put a large kitchen knife to her neck,
forced her toward the cash register and stole approxi-
mately $400. Id., 117–18. Kaur’s family members pro-
vided police with footage from the liquor store’s video
surveillance system. Id., 121. Kaur described the robber
to police,2 but could not identify him from a subse-
quently produced photographic array. Id., 121–22.
On May 14, 2009, two days after the liquor store
robbery, ‘‘a robbery occurred at the Overstock Outlet
(outlet store) on Wolcott Street in Waterbury, where
Marlyn DeJesus was working alone. The outlet store
sold clothing and other merchandise. When the defen-
dant entered the [outlet] store, DeJesus was working
near the cash register in the front of the store. She
recognized the defendant by sight as a regular customer
and greeted him, as she did all customers. The defen-
dant went directly to the rear of the [outlet] store, and
DeJesus returned to what she was doing at the counter.
‘‘The defendant removed a number of shirts from a
rack and took them to the counter. DeJesus was stand-
ing approximately one foot away from the defendant
and was able to see his face. DeJesus rang up the cost
of the shirts and told the defendant how much he owed.
Because the defendant just stared at her, DeJesus
repeated the cost of the shirts. She then looked down,
saw that the defendant’s hands were partially concealed
inside his sweatshirt and that he was wearing latex
gloves. When the defendant withdrew his hands from
his sweatshirt, he was holding a knife in his right hand.
He grabbed DeJesus with his left hand, placed the knife
at her neck and ordered her to open the cash register,
which she did. The defendant removed cash from the
drawer and asked DeJesus where the rest of the money
was. DeJesus told him there was no more money. The
defendant threw DeJesus to the floor, held the knife at
the back of her neck and told her not to move or he
would kill her. As he fled, the defendant took DeJesus’
purse. After she heard the door chimes ring, indicating
that the defendant had left the outlet store, DeJesus
called 911 and locked the door. Two police officers
arrived at the [outlet] store. Although she initially was
very upset, DeJesus calmed down while the police
transported her to the station, where she provided a
written statement.’’ Id., 119.
At the scene, DeJesus reported to the responding
officers what had occurred, and described the perpetra-
tor as clean shaven, forty to forty-five years old and
about five feet, eight inches tall. In her subsequent writ-
ten statement, DeJesus described the robber as having
a thin goatee, being five feet, six inches to five feet,
eight inches tall, medium build, black, about forty years
old and wearing a black knit hat and black hoodie. The
statement further recites that DeJesus had ‘‘seen this
black man in the store before.’’ DeJesus was presented
with a photographic array by an officer who had not
prepared the array, and she was instructed that the
array might or might not contain a suspect’s photo-
graph.3 State v. Williams, supra, 146 Conn. App. 122.
DeJesus immediately identified the defendant as the
man who had robbed her, and the officer told her the
defendant’s name and birth date, but not that he was
a suspect.4 Id. At some point, police obtained video
surveillance evidence of the robbery from the outlet
store. Id., 123.
‘‘On May 16, 2009, the defendant was apprehended
at his residence on Garden Circle in Waterbury, which
is located halfway between the liquor store and the
outlet store. The defendant was charged in separate
informations, in connection with the robberies pre-
viously described, with one count in each of robbery
in the first degree in violation of § 53a-134 and unlawful
restraint in the first degree in violation of § 53a-95 (a).’’5
Id., 120.
The defendant elected a jury trial, which was held in
July, 2010. At trial, his theory of defense was misidentifi-
cation. Prior to the start of trial, the state moved to
preclude the testimony of the defendant’s disclosed
expert witness, Steven Penrod, a psychologist, who was
to testify as to the various factors that affect the accu-
racy of eyewitness identifications, and to opine that
certain of those factors rendered any identification of
the defendant, by either Kaur or DeJesus, unreliable.
The defendant’s initial written proffer indicated that
Penrod would testify generally about the process and
stages of memory, and about various things that could
happen at each stage that could affect the formation,
retention and retrieval of memories. The defendant sub-
sequently submitted a supplemental proffer explaining
how the proposed expert testimony would relate to the
specific facts of this case.6 The trial court deferred ruling
on the state’s motion to preclude.
During the defendant’s trial, the jury was shown mov-
ing and still images from the liquor store surveillance
system, and Kaur testified that the images accurately
depicted how the robbery had occurred. Id., 121. Kaur
again described the robber, and her previous statement
to the police was introduced, in part, into evidence; see
State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598
(1986); but she could not identify the robber as being
in the courtroom. State v. Williams, supra, 146 Conn.
App. 121–22.
Moving images from the outlet store robbery also
were shown to the jury, and DeJesus testified that the
video accurately depicted the robbery. Id., 123. She
testified that she recognized the robber as a ‘‘regular
customer’’ when he entered the outlet store,7 and
‘‘described [him] as black, older, maybe in his late for-
ties, short, scruffy looking, having a gray beard and
wearing a black ski hat and a black hoodie.’’ Id., 122.
DeJesus described details of the defendant’s mouth and
explained that he reminded her of someone with whom
she had gone to school, causing her to wonder if the
two were related. Her identification of the defendant
from the photographic array was published to the jury,
and she also identified the defendant in the courtroom.
Id., 122–23. On cross-examination, DeJesus added that
the defendant, at the time of the robbery, was wearing
‘‘ ‘big glasses,’ ’’ a detail that she had not mentioned in
her written statement.8 Id., 123.
The jury was shown photographs of the defendant
taken five days after the outlet store robbery, including
a profile shot. Id. The photographs depict the defendant
with a thin, white or gray goatee. Id. Writing on one
photograph indicated that the defendant was born in
1958, making him fifty years old at the time of the
robberies, and that he was five feet, five inches tall, and
weighed 130 pounds. Id. The state adduced additional
evidence showing that, at the time of the robbery, the
defendant needed prescription eyeglasses for both read-
ing and distance. Id., 123–24.
After the state presented its case, the defendant
moved for a judgment of acquittal. The trial court denied
that motion and, further, granted the state’s motion to
preclude the defendant’s expert testimony. The court
reasoned, in part, that the jurors were qualified to weigh
the evidence themselves, including the testimony and
videotape of the incidents in question, and to determine
what weight should be given to DeJesus’ identification
of the defendant. The trial court indicated that, prior
to its ruling, it had reviewed, among other authority,
this court’s opinions in State v. Kemp, 199 Conn. 473,
507 A.2d 1387 (1986), and State v. McClendon, 248 Conn.
572, 730 A.2d 1107 (1999).9
Further proceedings were held on the charge of being
a persistent dangerous felony offender. Thereafter, the
jury found the defendant guilty as previously described
herein, and he was sentenced to twenty-five years
imprisonment. State v. Williams, supra, 146 Conn. App.
120. On September 3, 2010, the defendant filed a motion
for a new trial, arguing that this court’s recent decision
in State v. Outing, 298 Conn. 34, 3 A.3d 1 (2010), cert.
denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316
(2011), demonstrated that the trial court’s exclusion of
his proposed expert testimony was improper.10 The trial
court denied the defendant’s motion, and his appeal to
the Appellate Court followed.
In the Appellate Court, the defendant claimed, inter
alia, that the trial court had abused its discretion by
precluding him from presenting Penrod as an expert
witness on the reliability of eyewitness identifications.
State v. Williams, supra, 146 Conn. App. 124–25. In
deciding this claim, and ultimately rejecting it, the
Appellate Court reviewed and applied this court’s
recent decision in State v. Guilbert, 306 Conn. 218, 49
A.3d 705 (2012), which had been released during the
pendency of the defendant’s appeal. In Guilbert, we
overruled State v. Kemp, supra, 199 Conn. 473, and
State v. McClendon, supra, 248 Conn. 572, to the extent
that those cases had indicated that the reliability of
eyewitness identifications was a matter within the
knowledge of the average juror and that expert testi-
mony on the topic necessarily was unhelpful or would
invade the province of a jury.11 State v. Guilbert, supra,
251–53. The Appellate Court determined that, although
the trial court in the present case had based its decision
to preclude the defendant’s expert testimony on
grounds that were inconsistent, in part, with Guilbert,
the trial court nevertheless did not abuse its discretion
given the particular facts and circumstances of the case.
State v. Williams, supra, 138–39. The Appellate Court
concluded, in short, that expert testimony would have
been of limited utility to the jury in the present matter
because DeJesus, similar to an eyewitness in Guilbert,
already was familiar with the defendant prior to his
perpetration of the robbery at the outlet store and recog-
nized him as a regular customer prior to the robbery
taking place. Id., 139–40.
Following the release of the Appellate Court’s opin-
ion, the defendant filed a motion for reconsideration,
arguing that DeJesus’ familiarity and previous contact
with the defendant were insufficient to render insignifi-
cant the risk of her misidentifying him. According to
the defendant, DeJesus’ limited familiarity with him was
a reason to permit expert testimony, not a reason to
preclude it. The Appellate Court denied the defendant’s
motion for reconsideration, and his appeal to this court
followed. The defendant now claims, as he did in the
Appellate Court, that the trial court’s preclusion of his
proposed expert testimony was an abuse of discretion.
We are not persuaded.
We begin with the applicable standard of review.
‘‘We review a trial court’s decision to preclude expert
testimony for an abuse of discretion. . . . We afford
our trial courts wide discretion in determining whether
to admit expert testimony and, unless the trial court’s
decision is unreasonable, made on untenable grounds
. . . or involves a clear misconception of the law, we
will not disturb its decision.’’ (Citations omitted; inter-
nal quotation marks omitted.) Weaver v. McKnight, 313
Conn. 393, 405, 97 A.3d 920 (2014). Even ‘‘[i]f we deter-
mine that a court acted improperly with respect to the
admissibility of expert testimony, we will reverse the
trial court’s judgment and grant a new trial only if the
impropriety was harmful to the appealing party.’’ Id.
The standards for admitting expert testimony are well
established. ‘‘Expert testimony should be admitted
when: (1) the witness has a special skill or knowledge
directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and
(3) the testimony would be helpful to the court or jury
in considering the issues. . . . [T]o render an expert
opinion the witness must be qualified to do so and
there must be a factual basis for the opinion.’’ (Internal
quotation marks omitted.) Id., 405–406; see also Conn.
Code Evid. § 7-2 (‘‘[a] witness qualified as an expert
by knowledge, skill, experience, training, education or
otherwise may testify in the form of an opinion or other-
wise concerning scientific, technical or other special-
ized knowledge, if the testimony will assist the trier of
fact in understanding the evidence or in determining a
fact in issue’’).
In State v. Guilbert, supra, 306 Conn. 218, we revisited
the question of whether the factors affecting the reliabil-
ity of eyewitness testimony generally were within the
knowledge of the average juror such that expert testi-
mony on that subject typically would be unnecessary.
We concluded, ultimately, that such testimony is admis-
sible if the trial court determines that the expert is
qualified and that the proffered testimony is relevant
and would aid the jury. Id., 226. We renounced the
reasoning of Kemp and McClendon; see footnote 9 of
this opinion; as ‘‘out of step with . . . widespread judi-
cial recognition,’’ underpinned by extensive and consis-
tent scientific research, ‘‘that eyewitness identifications
are potentially unreliable in a variety of ways unknown
to the average juror.’’ State v. Guilbert, supra, 234. In
sum, we disavowed the previously expressed notions
that the factors undermining the reliability of eyewit-
ness testimony were common knowledge and that per-
mitting expert testimony on those factors amounted to
an improper invasion of the province of a jury to weigh
evidence. Id., 251–52.
We emphasized in Guilbert, however, that the deci-
sion did not mean that expert testimony necessarily
was required in all cases involving eyewitness identifi-
cations. Rather, consistent with our preexisting juris-
prudence governing the admission of expert testimony,
trial courts were to retain ‘‘broad discretion in ruling on
the qualifications of expert witnesses and determining
whether their opinions are relevant. . . . Conse-
quently, whether to permit expert testimony concerning
the reliability of eyewitness identification evidence in
any individual case ultimately is a matter within the
sound discretion of the trial court. A trial court may
bar expert testimony on the fallibility of eyewitness
identifications if it reasonably concludes that the wit-
ness does not qualify as an expert or . . . lacks an
adequate scientific foundation for one or more of his
opinions concerning the eyewitness identification at
issue. Similarly, the trial court may preclude such
testimony if the court reasonably determines, upon
due consideration of the facts and circumstances of
the case, that the particular issue presented is not
beyond the ken of the average juror or that the proffered
testimony would not aid the jury in resolving the
issues presented.’’ (Citation omitted; emphasis added.)
Id., 257. Stated otherwise, ‘‘such evidence is subject to
the same threshold reliability and relevance require-
ments as any other expert testimony.’’ Id. We further
reiterated that trial courts retain the discretion to decide
whether, given the specific facts and circumstances of
a case, focused and informative jury instructions on
the fallibility of eyewitness identification alone are ade-
quate to assist the jury in evaluating the eyewitness
identification at issue.12 Id., 257–58.
Although we concluded in Guilbert that the trial court
improperly had reasoned that expert testimony on eye-
witness identifications was unnecessary because it con-
cerned matters of common knowledge, we nevertheless
concluded that the court did not abuse its discretion
in excluding the proffered testimony because, given the
nature of the identifications at issue, that testimony
would not have been helpful to the jury. Id., 259. Specifi-
cally, because four of the five eyewitnesses who had
identified the defendant as the perpetrator of multiple
shootings had previous familiarity with the defendant,
the risk of their misidentifying him was small. Id., 261.
We agreed with the state that, ‘‘although there are
exceptions, identification of a person who is well-
known to the eyewitness generally does not give rise
to the same risk of misidentification as does the identifi-
cation of a person who is not well-known to the eyewit-
ness.’’13 Id., 259–60. As to the remaining eyewitness,
who was unacquainted with the defendant, we con-
cluded that the exclusion of the expert testimony was
an abuse of discretion, but that the impropriety was
harmless in light of other evidence in the case.14 Id.,
265–67.
In the present case, the defendant argues that the
Appellate Court improperly relied on Guilbert to con-
clude that the exclusion of expert testimony was not
an abuse of discretion. He contends that the eyewitness
in Guilbert that the Appellate Court discussed had more
prior familiarity with the defendant in that case than
DeJesus did with the defendant here, particularly
because DeJesus did not know the defendant’s name
or any personal details about him aside from his appear-
ance. According to the defendant, the inconsistencies
in the descriptions of the perpetrator that DeJesus gave
to the police and at trial suggest that she was confusing
him with the perpetrator, and that she was adding addi-
tional details to her description of the perpetrator after
choosing him from the photographic array, viewing the
surveillance video and seeing him during the trial pro-
ceedings. The defendant claims additionally that the
stress of the robbery, the presence of a weapon and
the lack of corroborating evidence further undermine
the reliability of DeJesus’ identification of him such
that expert testimony was necessary.
The state contends in response that the Appellate
Court properly relied on Guilbert to conclude that
DeJesus had sufficient prior familiarity with the defen-
dant to minimize the risk of misidentification.
According to the state, the fact that DeJesus had multi-
ple previous contacts with the defendant, considered
along with the other circumstances surrounding the
identification, demonstrate that the trial court’s ruling
was not an abuse of discretion. We agree with the state.
At the outset, to the extent either of the parties have
requested that we articulate a specific rule regarding
the degree of familiarity that an eyewitness must have
with a suspect before a trial court is justified in preclud-
ing expert testimony, we decline the invitation to do
so. Our research has not disclosed any decision in which
a reviewing court has proceeded in that fashion. Rather,
the typical approach is to consider the nature and extent
of the eyewitness’ prior knowledge of the suspect, along
with all of the other facts and circumstances of the
crime and the subsequent identification of a perpetra-
tor, to determine whether a trial court has abused its
discretion in disallowing expert testimony.15 This flexi-
ble approach is consistent with Guilbert, and indeed,
with any determination within the discretionary pur-
view of a trial court. Moreover, affording flexibility to
trial courts is desirable due to the myriad and unpredict-
able ways in which crimes occur and are witnessed and
in which individuals may have had previous contact
with each other. For example, in a case in which an
eyewitness has a limited, stressful encounter with a
criminal actor whose features are largely concealed, a
high level of prior familiarity likely would be necessary
to justify the exclusion of testimony on the risks of
misidentification. See, e.g., Hager v. United States, 856
A.2d 1143, 1149 (D.C. App.) (no abuse of discretion
to exclude expert testimony in case in which intruder
wearing ski mask entered victim’s bedroom at night
and immediately ordered her to lie on floor; victim had
seen intruder on daily basis outside apartment building
for one year and recognized his eyes, mouth, complex-
ion, height, build and voice), amended on reh., 861 A.2d
601 (D.C. App. 2004), cert. denied, 547 U.S. 1035, 126
S. Ct. 1609, 164 L. Ed. 2d 325 (2006). On the other hand,
if a witness has ample opportunity to view a perpetrator
under conditions conducive to an accurate identifica-
tion and identifies him or her shortly thereafter, a lesser
degree of familiarity may suffice.
After considering the totality of the facts and circum-
stances in the present case, we do not believe that
the trial court abused its discretion in disallowing the
defendant’s proffered expert testimony. To begin,
DeJesus had a substantial opportunity to view the per-
petrator of the robbery as he entered the store during
daylight hours, passed by her at the checkout counter
at the front of the store, shopped for a time, then
returned to the counter, where he stood in very close
proximity to her as she rang up his purported purchases.
Her description of the perpetrator’s appearance, given
prior to her identification of the defendant from a photo-
graphic array and including details not apparent from
that array, was generally consistent with the defen-
dant’s appearance. Moreover, DeJesus’ identification of
the defendant was expeditious, taking place less than
two hours after the robbery occurred, and she chose
his photograph from the photographic array immedi-
ately. See Upshur v. State, 208 Md. App. 383, 402, 56
A.3d 620 (2012) (no substantial risk of misidentification
where stabbing victim had previous contact with assail-
ant, had ‘‘a couple of minutes in daylight’’ to view him
during assault, gave ‘‘unremarkable but accurate’’ basic
description of assailant and identified him ‘‘with no
hesitation’’ [internal quotation marks omitted]), cert.
denied, 430 Md. 646, 62 A.3d 732 (2013); People v. Allen,
53 A.D. 3d 582, 584, 861 N.Y.S.2d 775 (2008) (fact
that identification of defendant, who was previously
known to witness, was made on same day of robbery
‘‘virtually eliminate[ed] the question of whether this
identification may have been based upon faulty mem-
ory’’), aff’d sub nom. People v. Abney, 13 N.Y.3d 251,
918 N.E.2d 486, 889 N.Y.S.2d 890 (2009). Importantly,
DeJesus’ recognition of the perpetrator as the defendant
occurred prior to his revealing a knife and accosting
DeJesus, thereby making any testimony as to the effect
of stress or the presence of a weapon on DeJesus’
testimony of questionable relevance. As DeJesus indi-
cated in her written statement, which was made prior
to her identification of the defendant, the perpetrator
had been in the outlet store before, and DeJesus subse-
quently testified that she had recognized and greeted
the defendant as he entered the store.16 See Porter v.
State, 94 Nev. 142, 148, 576 P.2d 275 (1978) (no abuse
of discretion to exclude expert testimony where ‘‘the
victim was not under stress until the actual robbery
[and] had a prior ample opportunity to observe [the
defendant] absent stress-type conditions’’). Previous to
granting the state’s motion to preclude expert testi-
mony, the trial court already had ruled that the photo-
graphic array, which was not prepared by its
administrator and which was presented to DeJesus
along with a warning that a suspect may or may not
be present, was not unnecessarily suggestive. Finally,
the defendant did not establish a factual basis for his
claim, made in his proffer, that the identification was
cross-racial. In sum, much of the expert evidence that
the defendant proposed to introduce would have been
of limited utility to the jury.
As to the nature and extent of DeJesus’ prior familiar-
ity with the defendant, we do not consider it to be
appreciably different than that of two of the witnesses’
prior familiarity with the defendant in Guilbert, which,
we concluded, made appropriate the trial court’s deci-
sion to preclude expert testimony in that case. To reiter-
ate, DeJesus had worked at the outlet store for
approximately five months prior to the robbery, and
she described the defendant as ‘‘a regular customer,’’
although the precise number and nature of his previous
visits is unclear from the record,17 and she testified that
she recognized him right away when he entered the
store. The shooting victim in Guilbert, like DeJesus,
recognized the defendant before any criminal activity
occurred and further identified him by nickname after
the shooting and then from a photographic array, but
his testimony otherwise did not suggest a close relation-
ship—only that he had known the defendant ‘‘ ‘for a
while’ and had ‘had words’ with him ‘a couple of
months’ ’’ earlier. State v. Guilbert, supra, 306 Conn.
223; id., 261 n.40. A second witness in Guilbert viewed
the defendant only briefly, at night, after stressful events
had commenced—multiple shots fired and cars collid-
ing—and, like DeJesus here, recognized the defendant
as a ‘‘regular customer’’ at a donut shop where she had
worked for approximately one and one-half years. Id.,
261 n.40. Although the second witness in Guilbert also
knew the defendant’s nickname, the circumstances of
her identification of the defendant raised more con-
cerns than the prompt, nonsuggestive police-adminis-
tered photographic array utilized in the present case;
it did not occur until nine days later, when the witness
identified the defendant from a picture in a newspaper.
Id., 223.
Other cases involving a witness’ prior familiarity with
a perpetrator provide further support for our conclusion
that DeJesus’ previous contact with the defendant made
the trial court’s decision to exclude expert testimony
an appropriate exercise of its discretion.18 See United
States v. Wiley, 545 Fed. Appx. 598, 599 (9th Cir. 2013)
(no abuse of discretion to exclude expert testimony
where sole eyewitness to robbery ‘‘had seen [defendant]
several times before’’); People v. Abney, supra, 13 N.Y.3d
262, 269 (no abuse of discretion to disallow expert eye-
witness identification testimony in case involving
armed robbery of barbershop by partially masked indi-
vidual; witness identified perpetrator from ‘‘ ‘mug
book’ ’’ and photographic array on same day, and recog-
nized perpetrator from his voice and body type as some-
one witness had encountered ‘‘regularly in the
neighborhood’’ over previous six months; second wit-
ness also recognized and identified defendant); People
v. Pacheco, 38 A.D. 3d 686, 688, 832 N.Y.S.2d 248
(no abuse of discretion to exclude expert testimony in
murder case, ‘‘particularly since the identifying witness
knew the defendant for months’’), appeal denied, 9
N.Y.3d 849, 872 N.E.2d 888, 840 N.Y.S.2d 775 (2007); cf.
Haliym v. Mitchell, 492 F.3d 680, 706–707 (6th Cir. 2007)
(unnecessary to suppress identification resulting from
suggestive lineup where, inter alia, child witness had
seen individual who murdered his parents on four previ-
ous occasions); Commonwealth v. Stoddard, 38 Mass.
App. 45, 48, 644 N.E.2d 234 (1995) (no need for special
jury instruction on mistaken identification where victim
gas station attendant ‘‘knew the defendant as a regular
customer of the station and had encountered him
numerous times over a year and one-half’’); People v.
Montalvo, 269 A.D. 2d 328, 704 N.Y.S.2d 549 (2000)
(unnecessary to suppress identification resulting from
single photo identification procedure where ‘‘hotel man-
ager . . . had seen defendant at the hotel on various
occasions’’).
On the other hand, DeJesus’ identification of the
defendant is readily distinguishable from the identifica-
tions at issue in State v. Clopten, 223 P.3d 1103 (Utah
2009), on which the defendant relies. In that case, the
multiple eyewitness identifications at issue all were
highly problematic, with many of the factors affecting
reliability clearly present, such that expert testimony
would have been very helpful to the jury and, as the
reviewing court held, should have been admitted.19
Because of the myriad differences between Clopten and
the present case, we cannot conclude that its holding
is controlling here.
Finally, as to the defendant’s contention that DeJesus
gave somewhat differing descriptions of the perpetrator
at various times, thus suggesting that she altered her
original description after viewing the defendant and/or
the videotape of the outlet store robbery, we do not find
the cited discrepancies to be particularly remarkable.
Moreover, the fact that DeJesus gave a more complete
explanation at trial than she did to the police regarding
why she recognized the defendant does not compel a
reversal of the trial court’s ruling. Seemingly, the inter-
viewing police officer simply took at face value DeJesus’
statement that she had seen the perpetrator of the rob-
bery at the outlet store previously and did not require
of her any further, more detailed explanation of why
she knew that to be the case.20
On the basis of the foregoing analysis, we conclude
that the trial court’s preclusion of the defendant’s prof-
fered expert testimony on the fallibility of eyewitness
identifications was within the bounds of its broad dis-
cretion to exclude evidence that is not relevant or would
not be significantly helpful to the jury. Accordingly, the
Appellate Court properly concluded that the trial court
did not abuse that discretion.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA, EVELEIGH,
ESPINOSA and ROBINSON, Js., concurred.
1
We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly conclude that the
trial court did not abuse its discretion by precluding testimony from the
defendant’s expert on eyewitness identification?’’ State v. Williams, 310
Conn. 959, 82 A.3d 626 (2013).
2
Kaur testified at trial that she recognized the robber as someone who
had visited another store owned by her husband. State v. Williams, supra,
146 Conn. App. 117–18. In a statement given to the police, she variously
described the robber as a black male, who was thin or ‘‘a little heavy’’ with
a ‘‘ ‘little beard’ ’’ or a ‘‘white beard,’’ and who was approximately fifty years
old and about five feet, five inches tall. She further described him as wearing
a gray sweatshirt and/or a dark colored hoodie, a black skullcap and large
metal eyeglasses. Id., 121–22.
3
See State v. Ledbetter, 275 Conn. 534, 571–75, 881 A.2d 290 (2005)
(although concluding that no per se rule is appropriate, recognizing that
failure to give eyewitness instruction that photographic array may or may
not contain suspect’s photograph may render subsequent identification less
reliable), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
4
Prior to trial, the defendant filed a motion to suppress DeJesus’ identifica-
tion of him from the photographic array, arguing that the procedure
employed was unnecessarily suggestive. At a hearing on the motion, DeJesus
testified that she looked at the array ‘‘not long at all’’ because she ‘‘automati-
cally knew who it was.’’ According to DeJesus, she had seen the defendant
‘‘a couple times going to the store before,’’ so she ‘‘automatically recognized
him.’’ DeJesus indicated that she had arrived at the Waterbury police station
less than one hour after the robbery had taken place, and immediately had
given her report after arriving. The police officer who administered the
photographic array to DeJesus testified that he had shown her the array
after typing up her statement, and he confirmed that her identification of
the defendant was ‘‘immediate.’’
At the conclusion of the hearing, the trial court held that the identification
procedure was not unnecessarily suggestive and, in any event, that it was
reliable given the totality of the circumstances. See State v. Outing, 298
Conn. 34, 48, 3 A.3d 1 (2010) (if trial court finds that identification procedure
was unnecessarily suggestive, identification still is admissible if court finds
that it nevertheless is reliable based on totality of circumstances), cert.
denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011). Those
circumstances included the short interval between the robbery and DeJesus’
identification of the defendant, the fact that DeJesus did not hesitate when
identifying the defendant, DeJesus’ prior familiarity with the defendant, the
lack of any suggestion from the police, and the fact that DeJesus was
instructed that a suspect was not necessarily included in the photographic
array. The defendant did not challenge on appeal the trial court’s ruling on
his motion to suppress.
5
The defendant further was charged in two separate part B informations
with being a persistent dangerous felony offender in violation of § 53a-40
(a). State v. Williams, supra, 146 Conn. App. 120 n.7.
6
In his supplemental proffer explaining how the proposed expert testi-
mony would relate to the particular facts of this case, the defendant indicated
that Penrod would testify that the following factors made DeJesus’ identifica-
tion of the defendant unreliable: the fact that the robber was wearing a hat
and eyeglasses, which the defendant characterized as a ‘‘disguise’’; the stress
DeJesus endured as a result of being robbed at knifepoint; DeJesus’ focus
on a weapon, which distracted her attention away from the perpetrator’s
face; the relatively short duration of the outlet store robbery; the possibility
that ‘‘unconscious transference’’ had caused DeJesus to confuse the defen-
dant with the perpetrator, given her testimony that she had seen the defen-
dant in the outlet store on prior occasions; the use of a simultaneous
photographic array rather than a sequential photographic array; the fact
that the defendant, unlike the other subjects in the photographic array, was
wearing clothing bearing words, and appeared higher up in the frame than
the other subjects; and any knowledge possessed by the administrator of
the photographic array that the defendant was a suspect.
7
At the time of the robbery, DeJesus had been working full-time at the
outlet store, as a cashier and manager, for approximately five months. She
worked at the outlet store by herself, and spent most of her time at the
store’s checkout counter. In addition to referring to the defendant as a
‘‘regular customer,’’ DeJesus variously responded to questions about the
extent of his previous visits as a ‘‘couple times,’’ or ‘‘I can’t really tell you
how many times.’’
8
Notably, the defendant was not wearing glasses in the photographic
array from which DeJesus identified him, and the record indicates that he
was not wearing them in court. Images from the surveillance video of both
robberies depict the perpetrator in glasses.
9
In State v. Kemp, supra, 199 Conn. 476, this court held that the trial
court did not abuse its discretion in denying a defendant’s request to present
expert testimony on the reliability of eyewitness testimony, reasoning that
the factors affecting such reliability were within the common knowledge
of jurors and that defendants were protected adequately through cross-
examination, closing argument and jury instructions that called attention
to those factors. We later held similarly in State v. McClendon, supra, 248
Conn. 586–90.
10
In State v. Outing, supra, 298 Conn. 58–62, this court indicated a willing-
ness, in the proper case, to reconsider its holdings in State v. Kemp, supra,
199 Conn. 476, and State v. McClendon, supra, 248 Conn. 586–90. In Outing,
we concluded that the defendant’s claim that the trial court improperly
excluded the testimony of his expert witness, concerning eyewitness identifi-
cations, at a pretrial hearing on his motion to suppress had been rendered
moot in light of our disposition of another issue, and, in any event, that the
exclusion of the testimony was harmless. State v. Outing, supra, 55–58. As
to his additional claim that the court improperly excluded the expert’s
testimony at trial, we concluded that it had not been preserved. Id., 63.
11
In view of our decision in Guilbert, the Appellate Court, sua sponte,
ordered the parties to submit supplemental briefs addressing its applicability
to the issue on appeal. State v. Williams, supra, 146 Conn. App. 117 n.3.
12
Because our opinion in Guilbert makes it abundantly clear that trial
courts retain the discretion to admit or preclude expert testimony on eyewit-
ness identifications, depending on the particular facts and circumstances
of the case; see State v. Guilbert, supra, 306 Conn. 257; we reject the
defendant’s contention that Guilbert instead held that such expert testimony
presumptively is admissible in any case involving a disputed eyewitness
identification. The defendant’s claim in this regard focuses on two sentences
in the majority opinion, which are taken out of context, and from character-
izations of the majority opinion set forth in a concurring opinion, which is
not an authoritative statement of the law. See Reville v. Reville, 312 Conn.
428, 459 n.29, 93 A.3d 1076 (2014), quoting Kennedy v. Walker, 135 Conn.
262, 274, 63 A.2d 589 (1948).
As the Supreme Court of Georgia has explained, ‘‘[r]ather than pre-
determining on an appellate level that qualified, pertinent expert evidence
must be admitted in every case where key eyewitness identification is unsub-
stantiated by other evidence, the modern trend is to allow trial courts to
retain their discretion to weigh the admissibility of this evidence under a
case-by-case analysis. . . . Thus, while the presence of certain factors in
a case may strongly favor the admissibility of expert evidence on eyewitness
identification, trial courts are not automatically required to admit the evi-
dence; rather, the admissibility of the evidence remains within the trial
courts’ control subject to appellate review for abuse of discretion.’’ (Citations
omitted.) Johnson v. State, 272 Ga. 254, 256, 526 S.E.2d 549 (2000).
13
We explained further that ‘‘[t]he primary concern expressed in cases
discussing the problems with eyewitness identification relates to a witness
observing and subsequently identifying a stranger. . . . Witnesses are very
likely to recognize under any circumstance the people in their lives with
whom they are most familiar, and any prior acquaintance with another
person substantially increases the likelihood of an accurate identification.’’
(Internal quotation marks omitted.) State v. Guilbert, supra, 306 Conn. 260
n.39. Moreover, ‘‘[t]he research on eyewitness identifications . . . almost
exclusively focuses on individuals who are attempting to identify a stranger.
If the eyewitness is identifying someone with whom he or she has been
acquainted over a substantial period of time [for example, a family member,
longtime business associate, neighbor, or friend], then expert testimony is
not likely to assist the jury in evaluating the accuracy of a [witness’] testi-
mony.’’ (Internal quotation marks omitted.) Id.
14
Many courts have held similarly to this court in Guilbert, namely, that
exclusion of expert witness testimony on the fallibility of eyewitness identifi-
cations is not an abuse of discretion when, inter alia, the witness has prior
familiarity with the perpetrator of a crime. See, e.g., United States v. Wiley,
545 Fed. Appx. 598, 599 (9th Cir. 2013); Parker v. State, 333 Ark. 137, 147,
968 S.W.2d 592 (1998); Hager v. United States, 856 A.2d 1143, 1149 (D.C.
App.), amended on reh., 861 A.2d 601 (D.C. App. 2004), cert. denied, 547
U.S. 1035, 126 S. Ct. 1609, 164 L. Ed. 2d 325 (2006); People v. Abney, 13
N.Y.3d 251, 266–67, 918 N.E.2d 486, 889 N.Y.S.2d 890 (2009); People v. Perez,
85 A.D. 3d 630, 925 N.Y.S.2d 501, appeal denied, 17 N.Y.3d 955, 959
N.E.2d 1030, 936 N.Y.S.2d 81 (2011); People v. Pacheco, 38 A.D. 3d 686,
687–88, 832 N.Y.S.2d 248, appeal denied, 9 N.Y.3d 849, 872 N.E.2d 888, 840
N.Y.S.2d 775 (2007). Analogously, in other instances, reviewing courts have
found no impropriety in trial courts’ failures to give specialized jury instruc-
tions on eyewitness identifications when a witness had previous contact
with the defendant. See, e.g., State v. Trotter, 280 Kan. 800, 807–808, 127
P.3d 972 (2006); State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001);
Commonwealth v. Stoddard, 38 Mass. App. 45, 48, 644 N.E.2d 234 (1995);
Johnson v. State, 85 Wis. 2d 22, 29, 270 N.W.2d 153 (1978).
Because the existing jurisprudence in this area provides us with sufficient
guidance to decide the defendant’s claim, we decline the defendant’s sugges-
tion that we look instead to case law from a substantially different context,
namely, decisions construing New York’s ‘‘ ‘confirmatory identification’ ’’
exception to that jurisdiction’s general rule that a defendant receive notice
and an opportunity for a hearing if the state intends to introduce identifica-
tion evidence that could have resulted from an impermissibly suggestive
procedure. See People v. Rodriguez, 79 N.Y.2d 445, 449, 593 N.E.2d 268, 583
N.Y.S.2d 814 (1992). Because application of the confirmatory identification
exception denies a defendant an opportunity even to explore the sugges-
tiveness of an identification procedure, it necessarily is narrow in scope,
reserved for situations in which, ‘‘however suggestive or unfair the identifica-
tion procedure might be, there is virtually no possibility that the witness
could misidentify the defendant.’’ Id., 450. Stated otherwise, a defendant is
not entitled to notice and a hearing to contest a suggestive identification
procedure when ‘‘the witness knows [the] defendant so well as to be impervi-
ous to police suggestion.’’ Id., 452. As previously noted, in the present case,
the trial court, in denying the defendant’s motion to suppress DeJesus’
identification of him from the photographic array, explicitly found, following
a hearing, that the procedure used was not impermissibly suggestive.
15
See generally annot., 46 A.L.R. 4th 1047, § 3 (e) (Supp. 2014).
16
The dissent affords much significance to DeJesus’ testimony that she
was working on her laptop computer when the defendant entered the outlet
store and, after greeting him, did not keep her gaze constantly trained on
him as he moved about gathering merchandise. We are not convinced that
this circumstance raises a serious risk of misidentification. As DeJesus
explained while being cross-examined by defense counsel, she looked up
and greeted the defendant as he entered the outlet store, and she saw no
reason to fixate on his facial features because she ‘‘already recognized him
when he walked in’’ as ‘‘a regular customer’’ whom she had seen in the
store before. Moreover, after she rung up his purported purchases, she
looked up at his face and told him the amount due twice, because after she
had told him the first time, ‘‘he wasn’t doing anything, he wasn’t getting any
money out or anything,’’ but rather, ‘‘was just waiting there.’’ Only thereafter
did DeJesus look down and notice that the defendant was holding a knife.
After examining the totality of the encounter, we are not persuaded that
DeJesus was so distracted that she had an inadequate opportunity to view
the defendant.
17
The defendant, and the dissenting justice, essentially ask us to presume
from the lack of definitive evidence as to the specifics of the defendant’s
previous visits to the outlet store that those visits were minimal in number
and that he and DeJesus had never spoken or otherwise interacted prior
to the day of the robbery. This we will not do. We reiterate that we review
the trial court’s ruling only for an abuse of discretion. It is axiomatic that
it is the defendant’s burden, as the appellant, to establish an abuse of
discretion requiring reversal of the judgment; State v. Ramos, 261 Conn.
156, 175, 801 A.2d 788 (2002); and further, to provide an evidentiary record
that would support that determination. State v. Ryder, 301 Conn. 810, 835,
23 A.3d 694 (2011). Moreover, as we have consistently and repeatedly
explained, the abuse of discretion standard is highly deferential. When
applying that standard, ‘‘every reasonable presumption should be given in
favor of the correctness of the court’s ruling.’’ (Emphasis added; internal
quotation marks omitted.) State v. Dupas, 291 Conn. 778, 783, 970 A.2d 102
(2009). In sum, the defendant cannot meet his burden of showing that the
trial court abused its discretion in disallowing expert testimony by relying
on assumed facts that are not evidenced by the record.
18
The dissent, in its discussion distinguishing extrajurisdictional decisions,
in large part includes cases that we have not cited here as analogous to the
present one, but that we have cited only in a previous footnote for the
general proposition that a witness’ prior familiarity with a defendant may
justify the exclusion of expert testimony on the fallibility of eyewitness
identifications. See footnote 14 of this opinion.
19
In State v. Clopten, supra, 223 P.3d 1116, two witnesses to a shooting
outside a nightclub, which occurred after a rap concert, had claimed very
limited previous familiarity with the defendant, not having known him prior
to the night in question. One witness, the victim’s girlfriend, stated that the
victim had pointed the defendant out to her prior to the concert, and indi-
cated that the two were enemies. Id., 1116–17. She viewed the shooting
from a distance of fifteen feet and described the shooter to police as ‘‘the
guy in the red.’’ (Internal quotation marks omitted.) Id., 1115. Soon thereafter,
while still frantic over what had occurred, the victim’s girlfriend identified
the defendant from a distance of thirty five feet at a live roadside show up
consisting of the defendant and three of his cohorts, all of them handcuffed.
Id., 1115–16. Although both the defendant and one cohort had been wearing
red sweatshirts earlier in the evening, the cohort had since removed his.
Id., 1115. Moreover, the police had encouraged the victim’s girlfriend to
identify a perpetrator, telling her to ‘‘[d]o it for [the victim] . . . .’’ Id., 1116.
She later claimed to recognize the shooter by his distinct hairline, but other
witnesses indicated that the shooter had a hood pulled over his head during
the shooting. Id.
A second eyewitness in Clopten, who identified the defendant from a
photographic array, claimed to have spoken briefly to a man in a red
sweatshirt twice during the evening. Id., 1115. She said that the shooter had
not worn red pants, although the defendant did, and seemed to be describing
the red sweatshirt worn by the defendant’s cohort. Id., 1116. Both the victim’s
girlfriend and the second witness were of different races than the defendant.
Id. A third eyewitness had accompanied the defendant to the concert on
the night of the shooting. Id., 1115. That witness initially denied seeing the
shooting, but identified the defendant after being threatened with prosecu-
tion. Id., 1115–16. Thereafter, the witness disappeared and was unavailable
to testify at trial. Id., 1116.
20
The trial transcript reflects the following exchange between defense
counsel and Detective Orlando Rivera from the Waterbury Police Depart-
ment, who took DeJesus’ statement and showed her the photographic array:
‘‘Q. Did you ask her why she picked [the defendant]?
‘‘A. Yes. At which point when she identified him she said, that’s the man
that robbed the store.
‘‘Q. And did she give you any details about why she picked him as opposed
to just saying, that’s the man?
‘‘A. Well, she had remembered that the gentleman had entered the
store previously.
‘‘Q. So she told you that she had previously seen [the defendant] at the
[outlet] store?
‘‘A. She had . . . stated, when I had spoke[n] to her, while taking her
statement, that the man that robbed my store had come into the store
previously. She remembered the man that robbed her as being in her
store prior.
‘‘Q. And so when you asked her, what is it about him that makes you say,
he’s the robber, that was the only answer she gave you?
‘‘A. She was adamant that was the man that robbed the store.
‘‘Q. And she didn’t say, I recognize any type of facial features on the man
from the robbery?
‘‘A. No.’’