State v. Place, 153 Conn.App. 165

Background

Two separate jury trials: Xtra Mart robbery (July 17, 2008) and Putnam Bank robbery (May 10, 2008). Defendant convicted in both; aggregated effective sentence 30 years.
Xtra Mart facts: clerk Hartman saw a masked male; defendant threatened clerk with a knife and stole ~$125. Defendant has visible tattoos; photos of tattoos taken the day after the robbery were admitted. Defendant sought to display his tattoos to jury without testifying.
Trial court required the defendant to testify (and be subject to cross-examination and potential impeachment) before displaying tattoos, because tattoos could have changed in the 2½ years since the crime; defendant declined to testify.
Putnam Bank facts: defendant presented a demand note and tissue left at scene; tissue produced a mixed DNA profile that ‘‘could not eliminate’’ the defendant; palm print on demand note matched defendant; surveillance stills and witness testimony also implicated him.
In Putnam Bank trial issues: court excluded a photographic array the teller had reviewed (she did not pick a specific person), a forensic witness (Przech) testified about a CODIS database hit to a convicted offender in Massachusetts (identifying the defendant), and defense moved to strike that testimony and later claimed prosecutorial impropriety for eliciting it.

Issues

Issue	State's Argument	Place's Argument	Held
Whether defendant could display tattoos to jury without testifying	Tattoos may have changed; state entitled to cross-examine if defendant testifies and display is offered	Defendant argued he could exhibit non‑testimonial physical condition without testifying or cross-exam	Trial court did not abuse discretion; defendant failed to lay foundation that tattoos were unchanged, so required to testify and be cross‑examined if displayed
Admissibility of photographic array (teller saw similar features but no ID)	Array irrelevant because no positive identification	Array relevant to show who teller considered as resembling perpetrator and could support misidentification defense	If error to exclude, it was harmless beyond a reasonable doubt given other misidentification evidence and strong forensic evidence
Motion to strike testimony that CODIS produced a hit to a convicted offender (identifying defendant)	Defense opened door by extensively questioning CODIS/procedure on cross; rebuttal was permissible	Testimony improperly elicited and violated pretrial order to avoid mention of probation/prior convictions	Court did not abuse discretion: defense opened the door; motion to strike properly denied though court offered curative instruction
Claim of prosecutorial impropriety for eliciting criminal-history reference	No violation: prosecutor’s follow-up on CODIS was permissible and not barred by the motion in limine (which addressed probation only)	Prosecutor elicited testimony to expose defendant as a convicted offender in violation of court order and prejudiced the trial	No prosecutorial impropriety: viewing trial as a whole, any reference was the product of an unanticipated answer after defense opened the door and did not make the trial fundamentally unfair

Key Cases Cited

State v. Annulli, 309 Conn. 482 (Connecticut Supreme Court) (evidentiary standards for admissibility)
State v. Davis, 298 Conn. 1 (Connecticut Supreme Court) (evidentiary foundation requirements)
State v. Winot, 294 Conn. 753 (Connecticut Supreme Court) (admission of evidence and court discretion)
State v. Swinton, 268 Conn. 781 (Connecticut Supreme Court) (standard of review for evidentiary rulings)
State v. Green, 55 Conn. App. 706 (Connecticut Appellate Court) (requirement that an object be shown substantially unchanged)
State v. Wilson, 308 Conn. 412 (Connecticut Supreme Court) (harmless error standard for constitutional evidentiary errors)
State v. Brown, 309 Conn. 469 (Connecticut Supreme Court) ("opening the door" doctrine and rebuttal evidence)
State v. Elson, 311 Conn. 726 (Connecticut Supreme Court) (appellate review of unpreserved constitutional claims)