254 Conn. 540 | Conn. | 2000
Opinion
After a jury trial, the defendant, Mark Reid, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l)
On appeal, the defendant claims that the trial court improperly: (1) admitted expert testimony relating to microscopic hair analysis; (2) denied the defendant’s motion to suppress the victim’s out-of-court identification of him in a photographic array; and (3) marshaled the evidence at the close of the trial. We reject each of the defendant’s claims, and accordingly, affirm the judgment.
The jury reasonably could have found the following facts. In the early morning hours of November 8, 1996, the victim walked from a bar in East Hartford to her home, which was also in East Hartford. While the victim
On November 12,1996, at the request of Officer Francis Malozzi of the East Hartford police department, the victim went to the East Hartford police station to give a statement concerning the attack. After the victim gave a statement about the attack, Malozzi showed her a photographic array containing photographs of eight persons that could have fit the description of her attacker. The victim identified the defendant as her attacker, and began to shake and cry. Later that afternoon, Malozzi searched the area where the attack took place and recovered an earring belonging to the victim. Approximately one week later, the defendant was arrested. Additional facts and procedural history will be provided as needed.
I
The defendant makes two claims with respect to the admission into evidence of certain microscopic hair analysis. First, he contends that such evidence was inadmissible per se because it is unreliable and inherently subjective, and second, he argues that, even if not per se inadmissible, the evidence was inadmissible in this case. We disagree.
A
The following additional facts are relevant to the defendant’s first claim. After commencement of the trial, the state sought to introduce the testimony of Kiti Settachatgul, lead criminologist at the Connecticut state police forensic laboratory, concerning microscopic hair analysis. The defendant moved to exclude all evidence
Before the jury, Settachatgul testified that he had examined the clothes that the victim was wearing on the night of the attack and recovered three pubic hairs that did not come from the victim. Then, through a process known as microscopic hair analysis, Settachatgul compared these unknown hairs to hairs provided by the defendant. Settachatgul found that the characteristics of the known hairs from the defendant were similar to the characteristics of those recovered from the victim’s clothing.
The defendant argues that microscopic hair analysis should be excluded per se under the test adopted by this court in State v. Porter, supra, 241 Conn. 57, regarding the admission of scientific evidence. In Porter, this court followed the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence. See State v. Porter, supra, 84-86. Porter explicitly stated that the flexible Daubert approach was a better approach than the test of general acceptance in the scientific community, which was established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
In Porter, we said that “[a]s science and technology have advanced and become increasingly prevalent in our society, the number of cases, both civil and criminal, in which scientific testimony plays a role has also
Although this court in Porter explicitly adopted the Daubert test to determine the admissibility of scientific evidence; see State v. Porter, supra, 241 Conn. 68; we did not explicitly overrule Connecticut precedent regarding the evidence to which such a test should apply. Prior to Porter, this court had recognized that the Frye test for admissibility should not apply to all expert testimony, but only to that which involves “innovative scientific techniques . . . .” State v. Borelli, 227 Conn. 153, 163, 629 A.2d 1105 (1993); State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877 (1987). In Porter we recognized that Dauberts vagueness as to how and when to apply the factors of the test was necessary. State v. Porter, supra, 78. In order to maintain flexibility in applying the test, we did not define what constitutes “scientific evidence.” Id., 78-79. Accordingly, we must examine the expert testimony at issue in the present case to determine whether it is the type of evidence contemplated by Porter.
In State v. Hasan, supra, 205 Conn. 490, we upheld the admission of the testimony of a podiatrist as to the likelihood that a pair of sneakers would fit the defendant’s feet. We concluded that the podiatrist’s testimony was not “scientific evidence” subject to the Frye test because the podiatrist merely compared the foot
Settachatgul’s testimony is akin to that of the podiatrist in Hasan. Although Settachatgul’s training is based in science, he testified about a subject that simply required the jurors to use their own powers of observation and comparison. During his testimony, Settachatgul displayed an enlarged photograph of one of the defendant’s hairs and one of the hairs recovered from the victim’s clothing as they appeared side-by-side under the comparison microscope. Settachatgul explained to the jurors how the hairs were similar and what particular features of the hairs were visible. He also drew a diagram of a hair on a courtroom blackboard for the jurors. The jurors were free to make their own determinations as to the weight they would accord the expert’s testimony in the light of the photograph
Other jurisdictions have recognized that a Daubert hearing is not required for admission of microscopic hair analysis. The United States Court of Appeals for the Tenth Circuit, in response to the prosecution’s claim that the United States District Court had applied the wrong standard in ruling that evidence of microscopic hair analysis was inadmissible, stated that the trial court “incorrectly assessed the issue in evidentiary terms under Daubert v. Merrell Dow Pharmaceuticals, Inc. [supra, 509 U.S. 579]. Because the court employed the wrong standard, we reverse its ruling that the hair analysis is inadmissible.” Williamson v. Ward, 110 F.3d 1508, 1522-23 (10th Cir. 1997). The Supreme Court of Hawaii also has allowed evidence of microscopic hair analysis to be admitted without a Daubert hearing. State v. Fukusaku, 85 Haw. 462, 474, 946 P.2d 32 (1997). The court made the distinction between scientific knowledge and technical knowledge, the latter being something that “involves the mere technical application of well-established scientific principles and procedures. In such a situation, because the underlying scientific principles and procedures are of proven vahdity/reliability, it is unnecessary to subj ect technical knowledge to the same type of full-scale reliability determination required for scientific knowledge.” Id., 473. The Supreme Court of Kentucky also determined that microscopic hair analysis was not subject to the Daubert test because such evidence had been admitted for many years, and that, by inference, microscopic hair analysis was valid under a Frye test. Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999). Accordingly, the court determined that the trial courts in Kentucky could take judicial notice
Although we recognize that no Connecticut appellate court previously has held that the technique of microscopic hair analysis is so well established that it does not require a hearing under Porter or Frye, we note that testimony based on the technique has been admitted in Connecticut courts for many years. See State v. King, 249 Conn. 645, 656, 735 A.2d 267 (1999) (human hairs found on ski mask were similar to hair samples taken from both victim and defendant); State v. Conn, 234 Conn. 97, 104-105, 662 A.2d 68 (1995) (hair samples from defendant were not similar to hairs found at scene of crime); State v. Roseboro, 221 Conn. 430, 435, 604 A.2d 1286 (1992) (hair at scene of crime was microscopically similar to defendant’s body hair); Asherman v. State, 202 Conn. 429, 436, 521 A.2d 578 (1987) (knapsack relevant because it contained hair that was microscopically similar to hair of defendant); State v. Burns, 173 Conn. 317, 323, 337 A.2d 1082 (1977) (hair at scene of crime similar to hair of defendant and victim).
We conclude that microscopic hair analysis is not the type of evidence that we contemplated in Porter to be subject to the Daubert test.
The defendant also claims that the trial court abused its discretion when it admitted the testimony of Settachatgul concerning the microscopic hair analysis because the testimony was not relevant and the proper procedures were not followed in conducting the analysis. We disagree.
“ ‘Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ ” State v. McClendon, 248 Conn. 572, 585, 730 A.2d 1107 (1999). “ ‘The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.’ ” Id., 585-86. “ ‘Generally, expert testimony is admissible if (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.’ ” Id., 586. This third prong is essentially a relevancy requirement.
“Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Billie, 250 Conn. 172, 181, 738 A.2d 586 (1999).
Settachatgul testified that, although microscopic hair analysis cannot identify positively the exact individual from whom the hair originated, it is useful for the purpose of determining whether a person is one of the class of people from whom the hair in question could have originated. He testified that microscopic hair analysis alone is not sufficient positively to identify an individual. Settachatgul testified only to the narrow opinion that the hairs recovered from the victim’s clothing were similar to the defendant’s hair. Settachatgul testified that he could not, however, say that the hairs in question were definitely the hairs of the defendant.
We conclude that this testimony was relevant to assist the jury in determining whether the defendant was the attacker. The victim identified the defendant as her attacker in a photographic array and in open court during her testimony. The state offered microscopic hair analysis evidence to show that the defendant has pubic hairs with similar characteristics to those recovered from the victim’s clothing. The trier reasonably could have found that this evidence rendered the victim’s identification of the defendant as her assailant more certain or more probable and tended to support the identification. Thus, the evidence was relevant.
The defendant also argues that the testimony concerning the hair analysis should have been excluded because Settachatgul did not adhere to proper procedures in conducting the hair analysis. Specifically, the
Once the trial court has served its gatekeeping function in accordance with Porter and determined that the expert testimony will be admitted, any challenges to the methodology used in the process generally go to the weight of the testimony and not its admissibility. “Once the validity of a scientific principle has been satisfactorily established, any remaining questions regarding the manner in which that technique was applied in a particular case is generally an issue of fact that goes to weight, and not admissibility.” (Emphasis in original.) State v. Porter, supra, 241 Conn. 88 n.31.
The defendant had the opportunity to challenge Settachatgul’s methodologies on cross-examination, and, in fact, questioned him concerning his choice of which hair characteristics to analyze, and about forensic literature suggesting that certain measurements of the hair under analysis should always be made. Because the expert testimony pertaining to the hair analysis was relevant to an issue in the case, namely, the identity of the victim’s attacker, and because the defendant’s challenge to the methodology affected the weight of the testimony and not its reliability, we conclude that the trial court properly admitted the testimony.
II
The defendant next claims that the pretrial identification procedure was unnecessarily suggestive and unreli
The following additional facts are relevant to the defendant’s claim. The defendant moved to suppress the victim’s pretrial identification of a photograph of the defendant as that of her attacker. The trial court conducted a hearing on the motion. At the hearing, Malozzi testified that he had learned from his fellow East Hartford police officers that the defendant fit the victim’s description of her attacker. Acting on this information, Malozzi chose to include a photograph of the defendant in the array that he showed to the victim. Malozzi testified that he told the victim that a photograph of a suspect was included in the array. The victim testified, however, that she was not told that there was a photograph of a suspect included in the array. The trial court did not directly resolve this inconsistency. In its ruling on the defendant’s motion, however, the
“[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 498, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); State v. Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995); State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992). “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Taylor, supra, 498, quoting State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991).
“ [Reliability is the linchpin in determining the admissibility of the identification testimony . . . .” (Internal quotation marks omitted.) State v. Figueroa, supra, 235 Conn. 157, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as “the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of [the victim’s] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Figueroa, supra, 157; see Manson v. Brathwaite, supra, 114; State v. Wooten, 227 Conn. 677, 687-88, 631 A.2d 271 (1993); State v. Evans, 200 Conn. 350, 356, 511 A.2d 1006 (1986); State v. Theriault, 182 Conn. 366, 373-74, 438 A.2d 432 (1980).
“[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court.” (Internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 688. “Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustwor
It is proper for a court, in determining whether an identification procedure was unduly suggestive, to consider the fact that a police officer tells a victim that a suspect is in a photographic array. State v. Austin, 195 Conn. 496, 500, 488 A.2d 1250 (1985). Such a statement, however, is not enough to render an identification procedure unduly suggestive. See State v. Williams, 203 Conn. 159, 177, 523 A.2d 1246 (1987). It is true that this court previously has stated that an identification procedure could be invalidated when police expressly indicate to a victim that a suspect is included in a photographic array. See State v. White, 229 Conn. 125, 163, 640 A.2d 572 (1994).
This court has stated explicitly that “little harm is likely to arise where the [victim], even without the police comment, would have inferred that the occasion for his being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed.” State v. Austin, supra, 195 Conn. 500. When presented with a photographic array by the police, crime victims reasonably can surmise that the police may consider one of the persons in the array to be a suspect in the case. See State v. White, supra, 229 Conn. 163; State v. Williams, supra, 203 Conn. 177; State v. Fullwood, 193 Conn. 238, 245, 476 A.2d 550 (1984).
We conclude that the trial court reasonably found that the defendant did not meet his burden of showing a
The defendant’s final claim is that the trial court, in its jury charge, improperly marshaled the evidence in an unfair and inaccurate manner, and unfairly drew attention to the state’s case. We disagree.
“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 815-16, 750 A.2d 1037 (2000).
The defendant relies on isolated instances in the record as support for his claim, rather than viewing the charge to the jury as a whole. See State v. Figueroa, supra, 235 Conn. 170. We conclude, from a “careful and thorough review of the record”; State v. Delgado, supra, 247 Conn. 629; that the trial court properly highlighted facts and theories integral to the defendant’s defense of misidentification. See id., 630.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”
Furthermore, we note that, even if a Porter hearing were necessary, the trial court properly conducted the hearing and found that microscopic hair analysis satisfied the Porter test because of its general acceptance in the scientific community.
We note that, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the United States Supreme Court held that a trial court has discretion to apply Daubert to all expert testimony, not just that which constitutes “scientific evidencie.” We need not decide in this case whether to apply Kumho in our Porter analysis, however, because it would not alter our conclusion that the trial court properly admitted the evidence.
The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . .”
The fourteenth amendment to the United States constitution provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .”
The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions . . . [n]o person shall ... be deprived of life, liberty or property without due process of law . . . .”
Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue.
. . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).
White cites to State v. Williams, supra, 203 Conn. 177, which, in turn, cites to State v. Austin, supra, 195 Conn. 500. Austin relies on two federal cases that state that “[l]aw enforcement personnel should avoid telling a witness that a definite suspect is in a lineup but it is not absolutely impermissible. Such statement has some degree of suggestiveness and, depending upon the circumstances, may be a factor to be considered in determining whether the lineup was unduly suggestive.” United States v. Gambrill, 449 F.2d 1148, 1151 n.3 (D.C. Cir. 1971); Martinez v. Turner, 461 F.2d 261, 264 (10th Cir. 1972).
One court, in a case cited by the trial court in its decision on the defendant’s motion to suppress the identification in this case, has even stated that it is “foolish not to assume” that a victim would believe that at least someone in the array is a suspect. Towles v. United States, 428 A.2d 836, 845 (D.C. App. 1981), on appeal after remand, 496 A.2d 560 (D.C. App.), vacated, 497 A.2d 793 (D.C. App.), cert. dismissed, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 276 (1985), on reconsideration en banc, 521 A.2d 651 (D.C. App.), cert. denied, 483 U.S. 1008, 107 S. Ct. 3236, 97 L. Ed. 2d 741 (1987).