State v. Packard

memorandum it pare decision, but the words this task perform used were within its broad judicial discretion. Reversal required where abuse discretion manifest or injustice where done. Thomas been Thomas, appears Conn. 477, find no (1970). We abuse discretion.

There is no error. A. Packard David Connecticut

Bogdanski, Peters, Healey, Wright, Js. Armentano 26, 1981 Argued January May decision released May, J. were Lawrence Prescott W. with whom Legenza O’Neill, J. brief, Arthur for on the and, appellant (defendant). Murray,

Paul E. with state’s attorney, assistant McDonald, M. was Francis on the whom, brief, appellee (state). state’s attorney, After a trial the jury, J. Armentano, of found guilty David A. defendant, Packard, degree in the second burglary crimes violation of in first in degree sexual assault and 53a-70,2 respee- Statutes 53a-1021 General §§ “burglary provides: Statutes 53a-102 § General the second in felony, degree: burglary in person guilty A (a) class c in dwell- unlawfully a degree he enters remains when the second ing night intent to commit a therein.” with crime at provides: 53a-70 § General Statutes assault in “sexual felony, degree: guilty person of sexual (a) A b first class person compels another degree person such in the when assault first

tively. guilty He was found not of the crime larceny degree third in violation of General § Statutes 53a~124. facts this case are as follows. The victim, twenty-four-year-old female at the time of the apartment lived alone in the

incident, second floor family. of a house owned her Her bedroom was by night light adjacent illuminated in the kitchen. approximately morning At on the o’clock, of Janu- ary sitting 25,1978, the voice of a male on intruder, gained her awoke her. bed, He had access into the apartment by slitting unlocking a screen and two bathroom window latches. After she awakened, speak displaying intruder continued to to her, knowledge personal background her indicat- and ing his intent to have sexual intercourse with her. forcibly attempts He overcame her to flee or scream sexually During and assaulted her. and after the sexual he assault, continued his discussion with the eventually departed, threatening victim. He reprisal reported police. if she the attack to the The approximately twenty entire incident lasted to twenty-five minutes. immediately police

The victim contacted the and described both her assailant and his voice, well p.m. as the odor of alcohol on his breath. 1 At on day, Bethany police the same at state barracks, she constructed, with the assistance of a state trooper, approximately and in one a com- hour, posite picture perpetrator of the of the sexual assault. engage to in by sexual intercourse against the use of force such person person, other or a third or the threat of use of force against person against person reasonably such other or a third which person physical causes injury person such fear such person.”

a third On the victim January 27, identified the defend- ant from a of eight After the display photographs. she informed the identification, that she could police probably her recognize assailant’s voice as well. On January identifi- police arranged voice cation procedure which the victim listened to six individual interviews. She immediately recog- nized the defendant’s voice as that of the perpetra- tor, and it. physically emotionally responding the voice During procedure, police allowed no visual contact between the victim and the participants. arrested the defendant on February to an

pursuant arrest warrant issued on the same day.

On January 9, while on a sitting bench the courthouse lobby waiting the first day of trial to begin, the victim spotted identified the defendant. This encounter was coincidental, and other people were milling about at lobby the time.

The court denied the defendant’s motion to sup- press and allowed into evidence the composite, photographic identification, the voice identification and the courthouse identification lobby in addition to an in-court identification of the defendant.

I first claims that the voice identifi- cation testimony violated his constitutional rights to due process. On he appeal, does not challenge the testimony pertaining photographic, courthouse lobby, the in-court identifications.

The “use of out-of-court police identification pro- cedures rise to a may give claimed violation of due

262 if of law the conduct of

process procedure was given ‘unnecessarily instance and suggestive conducive to mistaken irreparable identification,’ claim whose on the adjudication, however, ‘depends it.’ circumstances totality surrounding Denno, Stovall 1967, v. 388 U.S. S. Ct. 293, 87 302, Hafner, 168 State v. 18 Ed. 1199 L. 2d [1967].” 423 U.S. 362 A.2d 230, 925, Conn. 235, see State v. 46 L. Ed. 851, (1975); 96 S. Ct. 2d 74 95, Johnson, 438 855 ; A.2d 156, 159, (1981) 183 Conn. Anderson, State v. 422 A.2d 323 287, 291, 178 Conn. Willin, State A.2d 251, 413 v. 177 248, Conn. (1979); Harden, State 319 315, n.2, v. Conn. 829 175 (1979); Kinsey, State Conn. v. 173 (1978); A.2d 1095 344, 346-47, proce identification determining “In whether process rights, a defendant’s due dures violate basis is made on an ad hoe required inquiry it must determined be first, two-pronged: unneces was the identification whether procedure found it if second, sarily suggestive; it determined whether been must be so, to have nevertheless reliable based circum ‘totality on examination Gold, stances.’ See State v. 656-58, 619, 180 Conn. Ct. 449 U.S. 101 S. 920, cert. denied, 430 A.2d 501, Piskorski, State v. L. Ed. 2d 320, (1980); Willin, (1979); A.2d Conn. (1979); 177 Conn. see 41 (1974); A.2d

Smith, 684, 345 Brathwaite, Ct. 97 S. Manson 432 U.S. also Biggers, Neil 2d 140 L. Ed. 2243, 53 401 (1972).” Ed. 2d 34 L. Ct. 375, S. Theriault, A.2d 371-72, 438 State Anderson, 292; State supra, see 432 (1980); Kinsey, supra, 252; Willin, supra, 347. Applying Theriault test to this we case, first must determine whether the voice identification procedure conducted at barracks police unnecessarily suggestive.3

Two officers individually interviewed the defendant and five police officers. It was planned the six individuals would to a respond series of questions after being informed of their right an attorney and their right to remain silent. Although the questions related generally to the sexual assault of the victim, they were not prepared or recorded beforehand. In addition a prepared list of questions, spoken by the assailant on the night of the attack, was to each given individual read. The entire procedure lasted approximately fifty minutes.

The police officials who in the voice- participated up were not given written responses to the ques- tions asked of but them, were instructed to act victim normally speak The calmly. sat behind a wall which prevented visual contact with the par- but ticipants, she was able to hear their responses through an open window. At no time either before, during, or after did she voiee-up view the par- ticipants. police instructed her to listen to all the individuals before whether she indicating recog- nized any voice and to concentrate on the quality of the voices rather than the meaning the words spoken.

The first three interviews proceeded according to the planned procedure. The fourth to be person interviewed, defendant, responded to the ques- tions asked of but when him, asked to read the pre- 3For a treatment of area, note, this see A.L.R.3d 1000; Eye-Witness Sobel, Identification. to do so and requested he declined statement,

pared inter- as as termination the an well attorney him accompanied defendant’s who wife, view. The had police to volunteered that the interview, the her of previous out husband because singled likewise, and, a similar incident involvement The interview an for him. requested attorney this heard after these demands. The victim ceased entire exchange. from

In to the defendant attempt an prevent out being singled by unanticipated responses, to the last two individuals instructed defendant. Simi- the demands made repeat accompanied a female larly,. police employee dur- fifth and made responses or sixth participant After interview, interview. the sixth ing the she had immedi- recognized victim indicated that her defendant’s voice as that of assailant. ately the in the voice-up, never the participants Since she saw of the defend- prior photographic ant not taint voice identification procedure. did being it borders on voice-up, evolved, “unnecessarily thereby denying suggestive” due his constitutional rights process. that it are concerned particularly We on a of a entirely reading pre- recorded based be statement, both of which would written pared, no for our there is Furthermore, available review. that indication in the record the wife’s presence could not have been foreseen interview during ensure her measures taken to that appropriate Finally, did not out defendant. presence single no doubt the defendant’s refusal there his demand to termi- statements, read the prepared for an request nate his attorney, the interview, the reference similar prior incidents distin- guished the fourth interview from the preceding three interviews.

On the other the hand, police conducted six sepa rate interviews, and only after the victim indicated that she would be able to recognize her assailant’s voice. The lack of visual contact between the victim and the participants prevented the any of tainting the voice-up by prior identification. photographic The demands the the of presence his wife were in repeated the fifth and sixth inter views. Most the importantly, victim testified that she immediately recognized the voice, defendant’s even before the remarks that the distinguished fourth interview from the three were preceding uttered. See Roper Beto, F.2d v. 499 (5th Cir. cert. 1971), U.S. denied, 406 92 S. Ct.

L. Ed. 2d 24 A.L.R.3d 8. (1972); note, 1261, §

If we assume the pretrial voice-up unnecessarily our suggestive, into whether inquiry the voice identification was at admissible trial does The of the Theriault end. second test prong “Because the reliability. reliability ‘linchpin’ the determining of evi admissibility Manson v. Brathwaite, 114; State dence; v. supra, Piskorski, we supra, 742; must consider whether under of the identifica ‘totality circumstances’ Theriault, tions State were reliable.” v. 373; supra, States v. Bubar, United see F.2d 192 (2d Cir.), 2d 54 L. Ed. S. Ct. “The in deter factors be considered of an identification ‘include mining reliability of the witness to view criminal opportunity at crime, degree the time the witness’ of his accuracy description attention, prior demonstrated at criminal, level certainty crime the time between the confrontation, factors is Against these and the confrontation. suggestive effect of the the corrupting be weighed Brathwaite, supra, identification itself.’ Manson v. Biggers, State Neil v. (citing supra, 199-200).” Johnson, State Piskorski, v. 742; see supra, Theriault, 373-74; State supra, supra, 159; Willin, Anderson, 292; supra, 252-53. supra, in this we consider case, evidence

Turning determining it in of the factors referred to light assailant testified that her reliability. witness twenty-five to in her apartment twenty to constantly spoke minutes time he during which of She also testi- her in a conversational tone voice. attention to perpetra- fied that she directed her the them so that could identify tor’s face and voice she as calm, soft, The described the voice later. victim a same charac- drawl, and southern the slight with voice-up six later at the days terizations she used Finally, to describe the voice she identified. and immediately, the victim record indicates voice, defendant’s doubt, recognized without it. The to emotionally responding physically defend- previous photographic since the ant the victim did not taint voice-up had no contact with the participants. victim visual of the reliability circumstances support of the defendant’s voice victim’s identification to her assailant. The reliability that belonging unneces outweighs possible the identification There the actual procedure. sary suggestiveness violation of the defendant’s constitu been no has Johnson, See to due rights process.4 tional 5, infra. footnote See State Theriault, supra, 160; supra, 372-73; v. Williams, A.2d 588 (1977); Kinsey, State supra, 347-48.

n The defendant also claims that the voice iden- tification should have a been because of suppressed denial his sixth amendment right counsel. This case in that unique the voice identification was not in conjunction conducted with the tradi- tional In lineup this ease the showup.

were careful any visual contact between prevent victim the voice-up participants.

Analogies, however, may be made to “visual” identification procedures order discover If appropriate rules. more akin to voice-up photographic then sixth display, amendment does not grant to have counsel right present. See United States v. Ash, 413 U.S. Ct. S. State Williams, L. 2568, 37 Ed. 2d 619 Conn. 429 U.S.

97 S. Ct. 50 L. 2d Ed. If it is more similar to lineup, the right to counsel attaches “at or after the initiation of adversary judicial criminal of proceedings—whether formal by way charge, preliminary hearing, indictment, information Kirby Illinois, arraignment.” 689, v. 406 U.S. 682, 92 S. Ct. (1972); see Wade 32 L. 1877, Ed. 2d 411 United States, 388 U.S. 218, Ct. 235-37, 1926, 87 S. 18 L. Ed. 2d 1149 In its the (1967). major holding, Kirby decision is clear. is Counsel at all required and lineups showups held after the commencement of criminal and proceedings at the required prearraignment the stage, from including period the initial detention to the formal arrest.

268 Kirby language adopted from in State the

We 368 A.2d 609-10, 601, Middleton, “ judicial pro (1976): criminal of ‘The initiation ceedings formalism. It is the far from a mere adversary system starting point our whole of only govern justice. it is that the For then criminal only prosecute, to and itself ment has committed government positions of then that adverse It is then that a defend solidified. have prosecutorial forces ant finds himself faced with society, organized intri and immersed procedural criminal law. cacies of substantive point, that marks the commence therefore, It is this prosecutions” which alone “criminal to ment of the guarantees explicit Amendment Sixth applicable. v. Alabama, are See Powell 287 U.S. [1932]; 77 L. Ed. 158 Mas 66-71, 53 S. Ct. 45, 55, 84 Ct. 1199,12 United 377 U.S. S. States, 201, siah v. Spano 2d v. New 360 U.S. [1964]; York,

L. Ed. 315, 324, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 ^[1959] Kirby concurring)....’ (Douglas, Illinois, J., 2d 411 32 L. Ed. U.S. 92 S. Ct. 682, 689, right point [1972].” counsel atta when judi adversary ches is at or after the time that against proceedings cial have been initiated charges as soon as criminal are is, defendant, thereby formally against subject accused, made ing prosecution. v. Town him a criminal denied, cert. send, Conn. 46 L. 2d 96 S. Ct. Ed. U.S. Many applied Kirby attempt courts without implications way. ing any e.g., its See, limit Virgin Navarro, Islands Government Cir.), (3d F.2d (1975); People 45 L. Ed. 698 2662, 95 2d S. Ct. 1045, Chojnacky, 3d P.2d 530 8 Cal. 505 759, 763-65, v.

269 Bragg, State v. 371 So. 2d (1973); (Fla. 1080 App. State, Winston v. 263 1979); Ind. 323 8, 11-13, State v. N.E.2d 228 Rudolph, (1975); 332 806, So. 2d 811 cert. 429 U.S. (La.), denied, 97 982, S. Ct. (1976); State v. 50 L. Ed. 2d 591 Hawkins, 496, 544 883 (Mo. State S.W.2d v. 880, App. 1976); Matthews, 295 265, N.C. 245 S.E.2d 727 284-85, 439 (1978), 1128, 1046, 99 S. Ct. State v. 59 L. Ed. 2d 90 Tingler, 31 Ohio (1979); State St. 2d 285 N.E.2d 710 102-103, (1972); 100, N.E.2d Kiraly, v. 56 Ohio 2d 37, 47-48, App. Delahunt, State v. Wyatt State, 1264-65 S.W.2d (R.I 1979); Taylor, 1978); Crim. (Texas App. 2d 522-23, (1973). N.W.2d Wis. at the time of the criminal charges Since voice-up, nor had adversary judi had not been made formally been initiated defend against cial proceedings this it is not for us to decide whether necessary ant, to voice identification was more similar procedure a or to a Under both display. lineup photographic Wade-Kirby rules, the Ash the sixth amend grant ment did not to right counsel at the time his voice was identified present the victim.5 by arguendo If assume that we found a violation of defend we rights process ant’s constitutional due his sixth amendment right counsel, there be no error. The use of would evidence acquired rights, prosecution violation these two and all by unlawfully puts opera into evidence, evidence tainted obtained exclusionary ordering a per tion a rule that necessitates se California, Ct. 272-74, trial. Gilbert v. 388 U.S. 87 S. new exception is, however, 2d 18 L. Ed. There one If per exclusionary se rule. we are able to declare belief improper out-of-court voice identification the admission an doubt, beyond reasonable then a remand is harmless Oliver, (1971), required. Chapman California, California, supra, 274; see citing Gilbert v. A.2d

In Oliver, 348, 354, (1971), pretrial lineup or this held “that a court purposes identification, the confrontation, investigation police the has reached the accu- when satory stage, step a in a is such critical criminal prosecution that under the sixth amendment to the suspect a at United States constitution is that time the to the entitled assistance counsel. While factually under Wade case involved a defendant not arrest and the defendant James H. Oliver was police [conducted arrest at under the time procedure], prior identification fact of arrest significant is factor not decisive. The constitutional pretrial is at time of the whether relationship and the defend- between ” ‘investigatory.’ ‘accusatory’ ant Subse- quent Kirby to this v. Illinois, State decision, were decided. Townsend, State Middleton set in the latter three cases overrule The rules out quoted replace portion of State v. Oliver above.

Ill assignment third of error also The defendant’s procedure and to the voice identification related §§ a on violation of Practice Book based procedure through 783. These sections outline by may obtain nontestimonial evi- which state Generally, the from criminal defendant. dence authority, prosecuting upon of the motion state, photo S. 17 L. Ed. 2d 705 The 87 Ct. identifications, lobby, and in-eourt which graphic, courthouse composite picture, challenged well the. appeal, on as been way in no tainted defendant. This evidence was convicted improperly any admitted voice-up. voice identification Therefore beyond a rea harmless infirmities is error because of constitutional doubt. sonable

can order a defendant participate reasonably conducted order must procedure. inform the defendant of certain items, including the right an or other observer attorney during procedure, of the procedure, scope person per- sons it. conducting The defendant claims that did not follow this when con- procedure they ducted the pretrial voice-up.

At on the hearing motion to suppress voice-up, the defendant did not on the object ground it was conducted in violation of Practice Book 775 through 783. Ordinarily §§ order for us to consider such a claim on it must have appeal, been raised and overruled with the proper exception below. Practice Book 288 and State v. 3063; §§ Evans, 165 Conn. 61, State 327 A.2d 576 (1973); v. Hawkins, 162 Conn. 514, 517, A.2d 93 S. Ct. 34 L. Ed. 2d 249 The record (1972). does not and the indicate, defendant does not that he claim, made the proper objection and exception.

Only the most exceptional circumstances will this court consider a claim, constitutional or other- not wise, raised properly and decided in the trial court. Burritt Mutual Savings Bank New Britain Tucker, v. Conn. 369, 439 A.2d 396 (1981); State v. Burke, 182 Conn. 330, 331, (1980); State v. Rogers, 177 Conn. 379, 381, There are two (1979). situations may “that con- stitute circumstances’ ‘exceptional such that newly raised claims can and will be considered this court. The first is . . . where a new constitutional not right readily foreseeable has arisen between the time of trial and The second appeal .... ‘excep- tional circumstance’ may arise where record ade- clearly that a has litigant a claim supports

qnately constitutional right fundamental of a deprived been Evans, State v. see 70; trial.” supra, and a fair Rogers, State Burke, State n.3; supra, Adams, 381; 176 Conn. 138, 145, supra, Rice, A.2d assignment defendant’s A.2d 128 he Book; Practice go beyond error does rights.6 constitutional of his claims no violation whether it Furthermore, questionable under sections in the Practice Book set out rights defendant at attached to the had consideration designed were The procedures time of the voiee-up. defend- from a evidence to extract nontestimonial make is bound to appear ant. ever “Who defendant.” the party or is law defend, answer Turnpike Co., v. Greenwoods Canaan a defendant tranformed into A is suspect com- have been after formal proceedings only occur this will him; menced against typically indict- by has been instituted when prosecution voice-up At the time of the ment or information. had not become yet defendant at issue here, defendant.

iy raised the defendant by The fourth issue trial admitted into evi- whether court properly of the inci- day dence the On composite picture. of her the victim created a dent, composite picture assailant’s face from various sets of facial features in a A assisted her. book. state compiled trooper After the initial of the the state assembly features, opinion, process this the defendant’s due 6We considered appear, right It rights amendment to counsel. does and his sixth rights against any fifth self- claimed, nor is it amendment during voice-up. to defendant See incrimination attached used a felt-tip pen at the trooper add, suggestion hair on more victim, the side of the head. On a scale of one to she rated the ten, likeness of to her composite assailant with a seven. Over the defendant’s the state objection, introduced composite into through evidence the victim. On appeal, claims that the composite was inadmissible hearsay.

There is a split on authority this One point. rule is that a sketch or composite picture produced identify a criminal suspected consti tutes inadmissible hearsay evidence where it offered only support corroborate an eyewit ness’ unimpeached on testimony issue iden This tity. rule all encompasses types nonphoto graphic pictures, including the at issue here. type See, e.g., Commonwealth McKenna, 355 Mass. 326-27, N.E.2d 560 (1969); v. Jen People nings, Div. 2d App. 621, 257 N.Y.S.2d (1965); Commonwealth Rothlisberger, 197 Pa. Super. 451, 453-55, (1962); note, A.L.R.3d 1217. Another line of authority holds that composites are not statements are and, therefore, not subject to the hearsay rule. United See, e.g., States v. Moshowitz, 581 F.2d 14 (2d Cir.), 439 U.S. 99 S. 871, Ct. 58 204, L. Ed. 2d 184 (1978); People v. Rogers, 81 Ill. 2d 411 571, N.E.2d 223 (1980) (overruling prior Illinois law holding composites subject to the hearsay rule); State v. Lancaster, 25 Ohio St. 2d 83, 267 91-92, N.E.2d 291 (1971); Commonwealth v. Rothlisberger, United Dionisio, States v. 1, 410 U.S. 5-8, 93 764, S. Ct. 35 2d L. Ed. (1973); 67 Wade, United States v. 388 218, 222-23, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Adams, State v. 138, 140-41, 406 A.2d 1 (1978); Trotter, State v. 185, 4 Conn. Cir. Ct. 189, 230 A.2d 618 (1967).

274 (Wright, dissenting). adopt 455-56 J., We

supra, of second line of authority. the reasoning A statement made out of court offered which is the truth of the facts in the to establish contained hearsay. Murray Supreme Lodge, statement v. (1902); N. E. O. P., 52 Conn. A. 722 see 715, 718, 11.1; of Connecticut Tait, Handbook Evidence § of 246. Law Evidence The victim McCormick, § a facial into assembly based the features on her recollection composite entirely picture face. not composite the assailant’s itself was the victim or the admitted as a “statement” assisted It was admitted to show who her. trooper It to the the likeness of the defendant composite. to a chart was more akin sketch, photograph, map, illustration or other or schematic graphic pictorial, but nonverbal modes statements, which are Aczas Inc., v. Stuart Heights, testimony. See National Sitnik 221 A.2d 589 54, (1966); Conn. A.2d 151 Conn. 62, 67, Propane Corporation, Welch, Cavallaro Conn. (1963); Hartford, A.2d (1951); Cagianello 9.5. cit. Tait, op. § Conn. circumstances the composite picture Under all the of the no than a pictorial representation was more whom it was testimony through witness assisted testimony trooper offered. The of the who more no creating the victim composite as a condition of than necessary admissibility had would been testimony photographer’s Bris McGar See photograph. victim identified Conn. 42 A. 1000 Since we tol, “state not a composite have decided no more be than hearsay ment” and therefore can its rule and hearsay other nonverbal testimony, are applicable. exceptions

275 Before a be admitted into evi composite may the witness whom the item dence, however, through is offered must be competent identify explain on the exhibit based first-hand knowledge exper Terminal Taxi Flynn, Co. 313, Conn. tise; and to aas 318-19, (1968); verify it fair and accurate what it representation depicts. Trombly v. New N.H. & H. R. York, Co., v. Hart Cagianello A.2d 689 465, ford, In see cit. 9.5. this supra, 475; Tait, op. case, § .7 the authentication met was requirement

Y of error rests assignment The defendant’s next material to disclose all on duty prosecutor Immediately evidence to the accused. favorable called the victim not only after the sexual assault, friend. also summoned a personal but police, while friend, approaching five this minutes, Within running individual observed an her apartment, behind looking kept direction and who opposite this identify person, he unable Although him. similar of his coat was the friend’s description her worn by the jacket description victim’s assailant. to the sexual four hours prior

Approximately man intoxicated an officer observed assault, police the victim’s direction in the walking general blocks one-half three and about house which was himby worn waist-length jacket The brown away. consider whether issue, do not as an we not raised Since it was as a procedure, as well pretrial composite is a two-prong subject to the therefore testimony, and mode of nonverbal 371-72, Theriault, Conn. enunciated test Super. N.J. Ginardi, 111 (1980). See State v. A.2d People v. (1970) ; 438, 273 A.2d aff'd, 57 N.J. 411 N.E.2d Sogers, Ill. 2d and her the victim given by

fit the descriptions known the man as a recognized The officer friend. lived in the apartment mother alcoholic whose never victim had victim. The beneath the directly incident. to the her son neighbor’s prior met or seen Two after days photographic defend- identified the the victim at which procedure her to a accompanied ant’s photograph, identify could whether she bar to determine him viewing After surreptitiously known alcoholic. not that he was declared she time, for a period attacker. her revealed of events was

This sequence pre- time the state’s during for the first defendant dis- newly to this case. In response sentation its moved for dis- the defendant closed information, excul- to disclose on the state’s failure missal based the court ruled information. After patory information disclose this duty state had no for a con- he moved denied the defendant’s motion, investigate. additional time in which to tinuance or The defend- denied this motion. The court likewise in these denials. ant claims error both Practice Book 54-86c8 and Both General Statutes § disclose authority to require prosecuting § “(a) later provides part: in Not 54-86e 8General Statutes § in a guilty thirty any plea of not days after defendant enters a than deputy attorney or ease, attorney, criminal assistant state’s state’s any attorney charge the ease shall disclose assistant state’s respect may with exculpatory he information or material which therefor request made has been to the defendant whether or deputy attorney or (b) Any attorney, assistant state’s .... state’s hearing attorney may request parte an ex in camera assistant state’s any information material or judge whether before a ... to determine exculpatory.” “Upon motion part: a written provides 9Practice Book § authority disclose prosecuting . . . shall made . . . the defendant (1) [ejxculpatory or materials.” . . . information to a defendant all “exculpatory information material.” Practice Book out lays § for the sanctions failure to make these disclosures. include They additional granting time or a continuance, or dismissing charges. These reflect obligation sections the constitutional of a to all prosecutor disclose material evidence favorable to an accused in his an possession, obliga that without statutory tion exists or book practice Agurs, mandates. See United U.S. States 97, v. 427 v. Brady 96 S. 49 L. Ed. 2d 342 107, 2392, Ct. (1976); L. Ed. Maryland, 83 S. Ct. 10 83, 87, 1194, 373 U.S. Gunning, (1963); 299, 2d 215 v. 303-309, (1981).11 information is whether the The first question the other was material evi- suspect pertaining be it can so accused. If dence favorable the the court is whether the next characterized, question defendant’s denying discretion in abused its the disclosure the tardiness motions or whether or pre- the defendant’s preparation so prejudiced from he was prevented his defense that sentation of Shelton, States v. United trial. receiving a fair See authority- provides: prosecuting “If 747 10 Practice Book § authority judicial 741], the Book comply § fails to with [Practice grant appro motion, own on his may, on motion of the defendant or following: (1) more of the relief, may one or priate include which Granting the (2) comply; authority to Kequiring prosecuting Believing the (3) continuance; time or a defendant additional 756, prohibiting required making Sec. from a disclosure defendant evidence, or dis introducing specified authority prosecuting from he deems other order Entering such missing charges; (4) proper.” 11 general dis motion a discovery included The defendant’s in this case not deal Wo do exculpatory information. closure of all a had made if the employed to be with standards by the suspects considered of all other specific motion for disclosure 106-107, 96 Ct. S. Agurs, U.S. v. police. See United States L. 2d 2392, 49 Ed. F.2d Cir. 1242, 1247 (9th 1978), 61 L. Ed. 2d S. Ct. Pollack, F.2d 973-74 (D.C. 1976). Brady Agurs cases Although dealt with it evidence disclosed to defense trial, after logical that same standards before and apply Agurs, United States trial. during supra, 107-108.12

There is no that requirement constitutional prosecution might disclose influence everything or that it make a and detailed jury complete investigatory the defense all accounting Agurs, United States 109; work on a case. supra, Illinois, Moore 92 Ct. 408 U.S. S.

L. will not Ed. 2d 706 (1972). prosecutor “[T]he of duty violated constitutional disclosure have his significance his is of sufficient unless omission to a of the defendant’s right result in denial Agurs, trial.” United States 108. v. supra, fair is which evidence are situations “[T]here to the defense of substantial value such obviously it to be disclosed fairness elementary requires that 110. request.” a Id., even without specific “ of evidence prosecution [Suppression . . . due process accused violates an favorable material either or to guilt is where the evidence faith or bad of the good irrespective punishment, determining if evidence for 12 Although hold that the standard we as pretrial trial disclosures same for is the should be disclosed practical difference ones, significant is a post-trial there well inevitably dealing with we an “Because are the two. between of an item significance imprecise standard, and because record accurately until entire predicated seldom evidence can be questions doubtful prudent prosecutor will resolve complete, is statutory an right for the state’s disclosure” or exercise favor v. judge. United States hearing before parte ex in camera ; (1976) L. Ed. 2d 342 S. Ct. Agurs, 427 U.S. 54-86c. § Statutes General added.) Brady faith of the prosecution.” (Emphasis v. Agurs, see United States Maryland, v. supra, Bember, State 183 Conn. 110; supra, mere that “The possibility 387 (1981). might an item of information undisclosed or have affected might helped defense, ‘materiality’ outcome of the does not establish trial, Agurs, sense.” United States in the constitutional 109-10. supra, must reflect

“The of materiality standard proper find- of the our concern the justice with overriding if only Such a is ing guilt. finding permissible beyond establishing guilt evidence supported by if the follows that doubt. It necessarily reasonable did reasonable doubt omitted evidence creates a has been error not otherwise constitutional exist, be omission must This means that committed. If record. of the entire evaluated in the context whether guilt no reasonable doubt about there is is no there considered, not the additional evidence if hand, the other for a trial. On new justification validity, already questionable the verdict importance minor relatively additional evidence of doubt.” a reasonable sufficient to create be might 405; Bember, supra, 112-13; see Id., Ferrara, n.3, 300-303, Grasso, A.2d the the reviewed

In the court us, case before found and cited above, we have Agurs rule, which did not suspect the other the facts concerning guilt defendant’s of the a reasonable doubt create was the omission exist when not otherwise that did record. entire We the of the context evaluated where a case This is not trial court. the with agree as her suspects different two identified the victim Alldredge, Grant assailant. F.2d See 1974); Lee State, (2d 379-83 Cir. 573 S.W.2d Her declaration that (Mo. 1978). App. suspect her as as unequivocal was not the was perpetrator identifi- voice positive photographic identifichtion, in-court cation, courthouse lobby identification. we

Since have decided that under the facts in this not bound the consti- prosecutor by case 54-86e Book General Statutes or Practice tution, § to disclose facts to the other pertaining § because not material evidence they were suspect it us favorable to the is not necessary accused, to consider court erred in denying whether continuance, or defendant’s motion for a dismissal or whether the late disclosure denied those his to a fair because right trial, constitutional if evi- arise the undisclosed favorable only issues dence is found to be material.

YI trial are on the The next claimed errors based two The defendant argues to the jury. court’s charge and prejudice tended to inflame that the instructions diver- him issues that injected against the jury case decide the duty from their to ted jury filed neither The defendant on the evidence. solely an nor took exception to charge request a written these claimed the jury; given the instructions on appeal. for the first time are errors raised error to consider “shall not be bound This court an instruc- failure to give, to the giving of, a written covered the matter unless tion taken has been exception or an charge request delivered by charge after immediately Book see 854; Practice appealing.” § party Burke, 182 Conn. 330, 331, (1980), and citations therein. of the rule purpose is to alert court to claims any of error while there is still an for correction in order opportunity to avoid the and economic waste increased court retrials. State congestion caused by unnecessary Lockman, Conn. 116, 124, L. 96 S. Ct. Ed. 2d 309 Yorczyk, A.2d 169 (1974).

The defendant would have us consider the merits of his under argument that the rule exception does not apply where the record adequately sup- a claim that ports a has been litigant clearly deprived a fundamental constitutional and right a fair trial. See discussion, supra. We examined the record and find no of a deprivation fundamental constitutional and trial. right a fair

VII The defendant’s final claim is that the court com mitted error when it failed to on charge jury misidentification.13 The dangers eyewitness defendant made no for such a charge request did not take to the exception charge given. With out the and since the defendant request exception, had been unable that to demonstrate he of a fundamental constitutional deprived right fair claim. Practice trial, we will not consider this charge: “Now, following The court did in about include the its n —(cid:127) in case, in here they the defense this have offered evidence regard they sufficient have claimed here that there hasn’t been a identification. — “And, necessary you it’s to convict order convict accused, beyond doubt proven reasonable find that the state has person properly defendant was identified as the involved this erime.”

282 Savings Mutual Bank New Burritt § 854;

Book Tucker, Britain 396 v. 183 Conn. 369, 377, Burke, supra, (1981); State 331. v. v. Harden, reliance on

The defendant’s 175 and Com (1978), Conn. Rodriguez, monwealth Mass. 391 N.E.2d 296, v. 378 In a cases, request 889 both (1979), misplaced. misidentifica eyewitness on the charge dangers the defendant. See by tion had been made Tinsley, (1980), A.2d 1002 393, 435 388, L. Ed. 66 874, 449 101 S. Ct. 1086, U.S. Rodriguez deci The Harden 2d 811 (1981). trial that a do not stand the proposition sions thereof, lack or instruction, court’s even if to attack on subject appeal to sub to it or declined take an exception failed to request charge. mit written no There is error. Healey

In this opinion Peters, Js., Wright, concurred. in the I concur (concurring). J.

Bogdahski, that the composite picture but would hold result state the victim’s integral is an part the assailant Moskowitz, United States ment of identification. 439 22 cert. denied, F.2d 14, (2d Cir.), 581 (Friendly, L. Ed. 2d 184 (1978) S. Ct. Rogers, People 2d 81 Ill. concurring); J., & See Weinstein (1980). 411 N.E.2d 581-82, n.3. See 801-52 [01], p. 801 (a) Evidence Berger, § A.2d Kida, Starzec Conn. also the composite has decided majority evi- rules of The federal is not a statement. picture of a state- definition the common law codify dence oral or written assertion ment an as, “(1) (2) if it is nonverbal conduct of a intended person, E. Evid. At him as an assertion.” Fed. (a). assembled, time this composite picture that her assailant victim intended to assert clearly resembled the picture.

The offered this statement to prove state I assertion. But as view truth of the victim’s sought of this case the state circumstances attaches which credibility on the greater capitalize the earlier identification and to use to an earlier this evidence.1 Because identification as substantive it was out of court, earlier statement was made hearsay. be made rule should hearsay

An exception created rule have been here.2 to the Exceptions under conditions statements are made “where the in reliability them equal deemed to render “the sanction made under to those trustworthiness” test of cross-examination.” and the of an oath part an in-court composite only offered the 1If the state majority’s state agree victim, with the by the I would statement pictorial than a composite picture no more “the ment that through whom it was testimony of the witness representation of the hearsay. not be the statement would In that ease offered.” 2 route. by a different result reach the same would Federal courts by statement, such of evidence of the federal rules Under 801§ hearsay. definition, is not is not hearsay. A statement are not “(d) Statements which — hearsay if at the testifies declarant Prior statement witness. (1) concerning the subject cross-examination hearing and is trial or testimony, his with (A) inconsistent statement, and the statement is perjury a at subject penalty to the given oath under and was con- (B) or deposition, proceeding, or in a trial, hearing, or other or express to rebut an testimony and is offered his sistent with improper or fabrication against him of recent charge implied made person of a one of identification motive, (0) or influence him.” perceiving after 284 Jajer,

Cherniske Conn. 171 A.2d 372, 376-77, General Motors Acceptance Corporation Inc., Capitol Garage, A.2d An identification of an accused made by him witness after trust usually more perceiving worthy than a in-court As later, identification. California, Gilbert stated in n.3, Ed. 18 L. 2d 1178 (1967), quoting 87 S. Ct. 1951, Gould, from 2d P.2d People Cal. “[ujnlike other testimony cannot (1960), be corroborated by proof prior consistent state it ments unless is first . . . evidence of an impeached identification is admitted extrajudicial regardless im the testimonial identification whether because earlier has peached, than an identification made greater value probative the courtroom after of others suggestions the circumstances of the trial intervened may to create a fancied the witness’ recognition mind. . . . The failure of the witness repeat not destroy identification court does extrajudicial for such failure be may its probative value, or other circumstances. memory loss explained identification tends to connect extrajudicial and danger defendant with crime, principal evidence is not since admitting hearsay present at the is available trial cross-exami witness nation.” have been

Statements prior reasoning. admitted in under the same this state Frost, State A. 446 326, 341,135 This is in accord with the trend to admit such state People v. California, Gilbert ments. See, e.g., supra; Spinello, 303 N.Y. 101 N.E.2d 457 (c) cit., (d) (1) Berger, op. & § Weinstein Ed. 1940); 1130 (3d Evidence [01]; Wigmore, § 449. 71 A.L.R.2d annot., and declarant testifies at trial

When, here, an such concerning to cross-examination subject of identifi- statement ont-of-conrt identification, hearsay exception. admissible as a cation should be Savings Francis X. Shea Federal v. First Haven of New Association Loan Wright, Js. Armentano, Shea Peters, Bogdanski,

Case Details

Case Name: State v. Packard

Court Name: Supreme Court of Connecticut

Date Published: May 26, 1981

Citation: 439 A.2d 983

Court Abbreviation: Conn.