46 Conn. App. 810 | Conn. App. Ct. | 1997
Opinion
The defendant, John O. Lindstrom, appeals
The defendant claims that the trial court improperly (1) deprived the defendant of due process by denying his motion to suppress the victim’s pretrial identification of him, and subsequently allowing her to identify him in court, (2) admitted constancy of accusation evidence, (3) denied him access to drug and psychiatric records of the victim and (4) instructed the jury on reasonable doubt.
The jury reasonably could have found the following facts. On the evening of August 11, 1993, the victim
I
The defendant first claims that the trial court improperly denied his motion to suppress the out-of-court identification of him by the victim because the procedure used to obtain that identification was unnecessarily suggestive and unreliable. He further claimed that any in-court identification based on it would lack an independent basis.
The following additional facts are relevant to this claim. Approximately two months after the assault, the victim was shown a photographic array in an attempt by the police to identify her assailant. Of the eight people depicted, the victim knew seven, one of whom was her husband. The defendant’s photograph was in the middle of the array and, upon seeing it and before looking at the remaining photographs, the victim immediately identified him as her attacker. The trial court found the
The defendant claims that the denial of the motion to suppress violated his right to due process and a fair trial. “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. ... To succeed on the motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Askew, 44 Conn. App. 280, 283-84, 688 A.2d 1346 (1997). A reviewing court need reach only the second prong of this test if the trial court has made a finding that the original identification procedure was unnecessarily suggestive. See State v. Payne, 219 Conn. 93, 107, 591 A.2d 1246 (1991). In analyzing the totality of the circumstances, the reviewing court, after determining that the original identification procedure was unnecessarily suggestive, must determine if it was so much so as to render it conducive to irreparable misidentification. If and only if the original identification procedure was so suggestive as to be conducive to irreparable misidentification should the subsequent in-court identification be excluded. See State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986); State v. Askew, supra, 283-84.
The factors used to determine whether an unnecessarily suggestive photographic array is nevertheless reliable are set forth in State v. Felder, 39 Conn. App. 840, 668 A.2d 382, cert. denied, 236 Conn. 906, 670 A.2d
On the basis of the evidence, the trial court found that the victim had ample opportunity to view her assailant in that he did not cover his face or disguise it in any way, the car light went on when she entered the car, there were streetlights on as they drove throughout the city, her vision was not impaired and she was close to her assailant’s face and observed him over a period
After reviewing the facts of this case, we conclude that the trial court was correct in denying the motion to suppress. Despite the fact that the trial court found the photographic array to be unnecessarily suggestive, the trial court was correct in not excluding the in-court identification because, under the totality of the circumstances, there was not a risk of irreparable misidentifi-cation.
II
The defendant’s second claim is that the trial court’s admission of constancy of accusation evidence by three police officers violated his right to due process. We decline to review this claim because the defendant failed to preserve it.
The following additional facts are relevant to our resolution of this claim. Three police officers testified for the state at trial. Detective Luisa St. Pierre testified about the details of the sexual assault provided to her by the victim on October 13, 1993, the day the victim was shown the photographic array. Officer Rocco Fier-ranti and Officer Kelly Gerent testified about their conversations with the victim, which occurred immediately after the sexual assault. The defendant cross-examined the officers. The defendant did not object to the three
The defendant argues that his claim is entitled to Golding review
Alternatively, the defendant urges us to review his claim under the plain error doctrine. “Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Citations omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 462, 696 A.2d 380 (1997).
The testimony of the three police officers corroborated the victim’s testimony. The defendant cross-examined the witnesses. We can find nothing that occurred at trial that affected the integrity of and confidence in the judicial proceedings.
Ill
The defendant’s third claim is that the trial court improperly denied him access to some of the victim’s medical and psychological records. The following facts are relevant to our resolution of this claim. The defendant subpoenaed the victim’s medical records concerning her drug use and a suicide attempt. After the defendant’s direct examination of the victim, the court
On the basis of that testimony, the trial court found that a failure to produce the records could impair the defendant’s ability to impeach the victim. After obtaining the witness’ waiver of confidentiality, the trial court inspected the records in camera, and thereafter released certain documents that would relate to the victim’s ability to perceive and relate the truth. These included records from Hartford Hospital relating to the suicide attempt, records from both the Hartford Dispensary and the Reid Treatment Center pertaining to her heroin addiction, and records from UConn Medical Center pertaining to both heroin and cocaine addiction. The court admitted these records as exhibits at trial and the defendant cross-examined the victim on them. He also called an expert witness who testified as to the effect of heroin, cocaine and Xanax on a person’s ability to perceive the truth. The remaining medical records were sealed by the court.
The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion. “ ‘The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997).
In this case the defendant sought to impeach the victim on the basis of a decreased perception attributable to the use of drugs. The trial court allowed the defendant access to the victim’s medical records regarding her drug use, and he was able to cross-examine her on them. In addition, he presented an expert who testified on the effects of drugs on perception. “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Barrett, 43 Conn. App. 667, 675, 685 A.2d 677, cert.
It is axiomatic that the right to confrontation is not absolute. State v. Wilkes, 236 Conn. 176, 183, 671 A.2d 1296 (1996). “The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . The constitution does not require that a defendant be permitted to present every piece of evidence he wants.” (Citation omitted; internal quotation marks omitted.) State v. Barrett, supra, 43 Conn. App. 676.
IV
The defendant’s fourth and final claim is that the trial court’s instruction to the jury on reasonable doubt was improper. The defendant takes issue with the following portion of the trial court’s instruction: “[I]t is a doubt for which a reasonable person after all of the evidence in the case has been analyzed and presented can give a valid reason. . . . Reasonable doubt is the kind of doubt upon which reasonable persons such as yourselves in the more serious affairs of your own lives
In State v. Ellis, 232 Conn. 691, 657 A.2d 1099 (1995), our Supreme Court upheld a nearly identical instruction.
The defendant’s claim is no different from that presented in Ellis. We, therefore, conclude that the instruction was proper.
The judgment is affirmed.
In this opinion the other judges concurred.
This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.
Acting in compliance with General Statutes § 54-86e, we treat the name of the victim as confidential. In accordance with that statute, it has been made known to the defendant.
We note that the defendant was allowed to introduce the eight photographs used in the array as a full exhibit in his case-in-chief.
We note that our Supreme Court has modified the constancy of accusation doctrine. See State v. Troupe, supra, 237 Conn. 304. Even if we were to review the defendant’s claim substantively, we would not have the authority to deviate from this recent modification.
“ ‘[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ State v. Golding, supra, 213 Conn. 239-40.” State v. McDougal, 241 Conn. 502, 523 n.15, 699 A.2d 872 (1997).
The procedure to be followed by trial courts in determining whether a defendant should have access to a victim’s confidential medical records is delineated in State v. D'Ambrosio, 212 Conn. 50, 561 A.2d 422, cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1989). The trial court, after finding that the defendant has made a showing that withholding the records would impair his right to impeach the victim, and after obtaining the victim’s permission, must analyze the records in camera for relevancy. If the trial court determines that any portion of the records is probative of the victim’s ability to relate the truth or to observe, recollect and narrate relevant occurrences, then the court must obtain the further waiver of the victim to release those records to the defendant. See id., 58. The trial court in this case complied with this procedure.
We note that the defendant is not aware of the contents of the sealed portion of the victim’s medical records and, therefore, does not know if the remainder of the records would even be relevant. “A criminal defendant does not have a right to conduct a general fishing expedition into a witness’ privileged records. State v. Januszewski, 182 Conn. 142, 172, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).” (Internal quotation marks omitted.) State v. Pratt, supra, 235 Conn. 595.
In State v. Schiappa, 44 Conn. App. 731, 739, 692 A.2d 820 (1997), we found that a defendant’s unpreserved claim of an improper jury instruction implicated due process rights to an adequately instructed jury and therefore merited Golding review.
The instruction in Ellis was as follows: “ ‘A reasonable doubt is a doubt for which a valid reason can be assigned. . . . It is . . . such a doubt as in the serious affairs which concern you in your everyday life you would pay some strict attention to.’ ” State v. Ellis, supra, 232 Conn. 705.