State v. WhiteState v. White
Syllabus
Convicted of the crime of assault in the first degree in connection with an incident in which he attacked the victim with a box cutter, the defendant appealed. Immediately after the attack, the victim described the assailant to the police as a white male wearing a red hooded sweatshirt, and the police recovered a red hooded sweatshirt and a box cutter near the crime scene. The police subsequently were notified that the defendant’s DNA profile was a potential match to DNA taken from the recovered evidence. A detective, P, compiled a photographic array, and another detective administered the array to the victim at the police station outside of P’s presence. The victim identified the defendant from the array and wrote on his photograph that she was ‘‘pretty certain’’ that he was the man who had attacked her. Ten to fifteen minutes later, the victim met with P and, unprompted by either detective, stated that, although she had written ‘‘pretty certain’’ on the photograph, she was ‘‘absolutely certain’’ that the defendant was her assailant. The victim then provided a written statement to P, in which she reiterated that she meant that she was absolutely certain about her identification of the defendant as her assailant, even though she previously had indicated that she was pretty certain. The defendant was arrested, and he retained private counsel to represent him, using funds provided by his wife to pay for attorney’s fees and to retain an expert, C, on eyewitness identification. After jury selection began, the state gave notice of its intent to introduce DNA evidence and requested that the court order the defendant to submit to a DNA sample. The court granted the state’s request but continued the trial to allow the defendant an opportunity to reframe his defense and to locate a DNA expert. The defendant then filed a motion requesting that the court order рublic funding so he could retain a DNA expert, claiming that he was indigent and that he was constitutionally entitled to such funding. In denying the defendant’s motion for public funding, the trial court declined to find him to be indigent, noting, inter alia, that, pursuant to this court’s decision in State v. Wang (312 Conn. 222), requests for public funding for ancillary defense costs must be made to the Public Defender Services Commission via the local public defender’s office, that the defendant had not applied to the public defender’s office for such funding, and that there was no authority for the trial court to order payment of a portion of the defense costs. In light of the defendant’s concerns about having to choose between keeping his privately retained defense counsel or applying for public defender services, the court indicated that the defendant could apply to the public defender’s office for funding without necessarily changing counsel. The defendant, however, elected not to apply for public defender services and retained his private counsel throughout the trial. The trial court also denied the defendant’s pretrial motion in limine, which sought to preclude the admission of the victim’s postidentification statement to P that she was absolutely certain that the defendant was her assailant and any subsequent in-court statements regarding her confidence at the time of trial in her identification of the defendant. At trial, the victim and P testified about the victim’s confidence statement after viewing the array, the victim testified that she was absolutely certain at the time of trial that the photograph she had selected was of her attacker, and C, the expert witness whom the defendant ultimately retained, testified concerning the reliability of eyewitness identifications. On appeal from the judgment of conviction, the defendant claimed that the trial court improperly denied his request for public funding for a DNA expert and his motion in limine to preclude the victim’s postidentification confidence statements. Held:
1. The defendant failed to establish his indigence because of his decision not to apply to the Public Defender Services Commission via the local public defender’s office for his requested public funding, and, accordingly, the record lacked an essential factual predicate necessary for this court to review his claim that the trial court violated his constitutional rights by denying his motion for public funding to pay for a DNA expert to assist in his defense solely on the ground that he had retained private counsel: a defendant’s right to publicly funded expert or investigative services under the due process clause of the fourteenth amendment, to the extent that such services are reasonably necessary to formulate and to present an adequate defense to pending criminal charges, belongs only to indigent criminal defendants, and the trial court properly declined to find the defendant indigent and instead referred him for further action to the Public Defender Services Commission via the local public defender’s office, as courts are not statutorily authorized to fund ancillary defense costs for indigent defendants, and, consistent with the statute (
2. The trial court did not abuse its discretion in denying the defendant’s motion in limine to preclude the victim’s postidentification confidence statement to P and any in-court statements regarding her confidence at the time of trial in her identification of the defendant: in light of applicable case law holding that a witness’ confidence in an identification, both at the time it was made and at trial, is a relevant factor to be considered in the determination of whether an identification is reliable, the trial court did not abuse its discretion in concluding that the victim’s professed level of confidence in her identification shortly after she made it and at trial was relevant to the jury’s determination of whether the defendant was the victim’s assailant; moreover, the trial court reasonably concluded that the victim’s postidentification confidence statements were not more prejudicial than probative, as those statements would not unduly arouse the jurors’ emotions or be so persuasive as to overwhelm the jury’s capacity to fairly evaluate the evidence, and also reasonably concluded that those statemеnts did not invade the province of the jury, as a witness’ testimony regarding the witness’ confidence in an identification of which the witness has personal knowledge is simply a tool that the jury uses to evaluate the accuracy or credibility of the identification; furthermore, in the absence of any evidence indicating a recent shift in the relevant social science, this court declined to adopt a categorical rule precluding the admission of evidence of a witness’ confidence in his or her identification, unless the evidence stems from the earliest identification procedure that complies with the statute (
(Four justices concurring separately in one opinion)
Procedural History
Substitute information charging the defendant with the crime of assault in the first degree, brought to the Superior Court in the judicial district of Waterbury, where the court, Murphy, J., denied the defendant’s motion to preclude certain evidence; thereafter, the court, Murphy, J., denied the defendant’s motion for costs to pay for expenses associated with procuring an expert for the purpose of presenting a criminal defense; subsequently, the case was tried to the jury; verdict and judgment of
Matthew A. Weiner, assistant state’s attorney, with whom were Marc G. Ramia, senior assistant state’s attorney, and, on the brief, Maureen Platt, state’s attorney, for the appellee (state).
Charles D. Ray and Brittany A. Killian filed a brief for The Innocence Project as amicus curiae.
Lauren Weisfeld, chief of legal services, and Deborah Del Prete Sullivan, director of legal counsel, filed a brief for the Office of the Chief Public Defender as amicus curiae.
J. Christopher Llinas and Ioannis A. Kaloidis filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
Opinion
ROBINSON, C. J. The defendant, John White,1 appeals from the judgment of conviction, rendered after a jury triаl, of assault in the first degree in violation of
The record reveals the following facts, which the jury reasonably could have found, and procedural history. On May 17, 2009, the victim, April Blanding, spent the afternoon and evening drinking alcohol and smoking marijuana and crack cocaine at the home of her friend, Tara Coleman. Coleman lived on Rose Street in Waterbury, which runs parallel to Wood
As she approached the end of Rose Street, the victim encountered a man, later identified as the defendant, sitting on the porch of an abandoned house approximately twelve to twenty feet away from her. The defendant had cuts on his face and was wearing a red hooded sweatshirt. The defendant asked the victim if she was ‘‘tricking tonight,’’ and the victim replied ‘‘no’’ and continued on her way to the store. While walking back to Coleman’s house after making her purchases, the victim saw the defendant still sitting on the same porch. Shortly after the victim passed the defendant, she felt someone walking behind her. As she stepped onto Coleman’s driveway, the defendant tapped her on the shoulder and said: ‘‘Lady, guess what? You’re dead, you’re dead, you’re dead. As of right now, you are a dead woman.’’ The defendant tripped the victim, who landed on her back, jumped on top of her and repeatedly stabbed her with what later was discovered to be a box cutter in her neck, face, head, chest, finger, and arm.
A resident on the third floor of Coleman’s building overheard the victim shouting, looked out his window and saw the victim and a white male wearing a red hooded sweatshirt, and then yelled down to ask if they were alright. At that point, after some ten to fifteen minutes of struggling with the defendant, the victim managed to ‘‘thr[ow] him off of [her].’’ The defendant then stopped the attack and ran down the driveway toward a wooded area behind Coleman’s home.
The victim ran to Coleman’s front door screaming for help. When she saw the victim, Coleman called 911. The victim told responding police officers that she had been attacked in the driveway by a white male wearing a red hooded sweatshirt. The victim was transported by ambulance to Saint Mary’s Hospital where she underwent surgery for her injuries.
After the police had secured the scene, officers recovered a red hooded sweatshirt from the side of an abandoned house on Wood Street, ‘‘[toward] the end of the driveway, right in between where the wood[ed] area was’’ behind Rose Street. The police also found a blood-stained box cutter in the backyard of another home on Wood Street adjacent to Coleman’s home.
Although the initial investigation did not initially produce a suspect, approximately four years later, in 2013, Waterbury police obtained information regarding a potential DNA match on а piece of evidence recovered near the crime scene. The victim went to the police department on October 14, 2013, where she identified the defendant in a double-blind, sequential photographic array procedure. The victim wrote on the defendant’s photograph: ‘‘I . . . am pretty certain that this is the young man who stabbed [me] 6 times on May of 2009 at 11 p.m. . . . on Rose Street in Waterbury . . . .’’ Afterward, the victim was interviewed by Detective John Pesce, and she told him that she was in fact ‘‘absolutely certain’’ with respect to her prior identification. Subsequent forensic testing revealed the presence of both the defendant’s and victim’s DNA on the red hooded sweatshirt and the victim’s DNA on the box cutter.
The defendant was arrested in 2016 and charged with assault in the first degree in violation of
On appeal, the defendant raises two claims. First, he claims that the trial court abused its discretion and violated his federal and state constitutional rights when it denied his motion for funds for a DNA expert to assist in his defense. Second, he claims that the trial court abused its discretion when it denied his motion in limine seeking to preclude certain evidence of the victim’s confidence in her identification of the defendant when presented with a photographic array by the police. We address each claim in turn, setting forth additional relevant facts and procedural history when necessary.
I
The defendant first claims that the trial court abused its discretion and violated his federal and state constitutional rights when it denied his motion for public funds to obtain a DNA expert to assist in his defense in challenging the state’s DNA mixture results. The record reveals the following additional relevant facts and procedural history. At all times relevant to this appeal, the defendant was represented by private counsel, Attorney Ioannis A. Kaloidis. The defendant’s wife had paid for Kaloidis’ attorney’s fees and the expenses associatеd with his retention of an eyewitness identification and memory expert.
The day after jury selection began, the state gave notice of its intent to introduce evidence of DNA analysis and moved for permission to obtain a DNA sample from the defendant via a buccal swab in order to compare the defendant’s DNA against samples taken from the red hooded sweatshirt and the box cutter recovered from Wood Street. Defense counsel objected, claiming that the state’s notice was untimely under
The next day, December 13, 2016, the defendant filed a motion seeking public funds to pay for a DNA expert to assist in his defense, as well as an accompanying memorandum of law and a financial affidavit in which he asserted that he was indigent. In his memorandum of law, the defendant argued that, since this court issued its decision in State v. Wang, 312 Conn. 222, 92 A.3d 220 (2014), ‘‘it has been the practice in this state that requests for funding go through the Public Defender [Services] Cоmmission [(commission)]. Such requests have routinely been denied except in cases [in which] counsel has been appointed as assigned counsel by the public defender’s office. In the present case, the undersigned [counsel] is privately retained counsel.’’ The court held a hearing on the motion on December 14, 2016, at which the defendant argued that an expert who would evaluate the results of the state forensic science laboratory was necessary to his defense given the anticipated importance of DNA evidence at trial. The defendant argued that the trial court could grant his motion, even though he was not represented by a public defender or assigned counsel, because his choice of counsel was a constitutionally protected right.
After hearing argument, the trial court denied the defendant’s motion in an oral decision. The trial court declined to find the defendant indigent because, inter alia, he had been represented by private counsel to this point and his defense experts had been, or were being, paid, and he had not applied to the public defender’s office, leaving the trial court without access to the results of an indigency investigation to aid its indigency determination.4 The trial court, citing Wang, then explained that a request for public funding for defense expenses must be made to the commission via the local public defender’s office and that there was no authority for the trial court to order payment of a portion of the defense costs. The trial court also was not convinced that the defendant had established that a private DNA expert was necessary to his defense, noting that ‘‘[t]he state lаb is a public institute and is going to analyze the [DNA] results . . . [a]nd, so, it’s not clear . . . what an expert adds to the equation on the part of the defense.’’ Further, the trial court explained that the defendant could apply for funds from the public defender’s office without necessarily changing defense attorneys.5 The trial
On appeal, the defendant claims that the trial court improperly denied his motion for public funds to obtain a DNA expert. The defendant acknowledges that, although he was indigent and had been incarcerated for years in Missouri, his family had sufficient funds to hire a private attorney for him, as well as an eyewitness identification expert. The defendant claims, however, that, when the state decided at the last minute to per- form additional DNA testing that resulted in evidence of DNA from both the defendant and the victim being present on the red hooded sweatshirt, his family could not afford the additional funds necessary for a DNA expert. The defendant argues that the trial court had discretion to order funds either independently or through the commission pursuant to Wang and that his motion for funds was denied solely because he had private counsel in violation of his constitutional rights under Ake v. Oklahoma, 470 U.S. 68, 76–85, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). In response, the state argues that the trial court did not deny the defendant’s motion for funds solely because he had retained private counsel; rather, the trial cоurt denied the defendant’s motion because the defendant had refused to file the application necessary for the commission to investigate his claim of indigence. Indeed, the state argues that, under our interpretation of
We begin with a review of our decision in Wang, which addressed several issues that arose from a request by the indigent, self-represented defendant, Lishan Wang, for public funding to retain experts and investigators to aid in his defense at his murder trial, including whether a right to such funding exists and which governmental entity, the commission or the Judicial Branch, would be obligated to provide those funds. State v. Wang, supra, 312 Conn. 224–26. Wang was found to be indigent and was appointed public defender representation, but he subsequently
Relying on the United States Supreme Court’s decision in Ake v. Oklahoma, supra, 470 U.S. 68, we con- cluded that ‘‘an indigent self-represented criminal defendant has a fourteenth amendment due process right to publicly funded expert or investigative services, to the extent that such services are reasonably necessary to formulate and to present an adequate defense to pending criminal charges.’’6 State v. Wang, supra, 312 Conn. 231. We further concluded that an indigent, self-represented defendant need not accept representation from a public defender in order to obtain public funding for reasonably necessary ancillary defense costs, noting that, ‘‘[w]hereas the right of self-representation directly conflicts with the right to counsel pursuant to the sixth amendment, no such conflict exists between the right of self-representation and the right to access the basic tools of an adequate defense pursuant to the fourteenth amendment. Indeed, an indigent defendant . . . is entitled both to the constitutional right to counsel and the constitutional right to be provided with the basic tools of an adequate defense.’’ (Emphasis in original; internal quotation marks omitted.) Id., 239.
Considering next which governmental entity is obligated to provide the public funds sought by Wang, we concluded that, although the commission is statutorily authorized to fund the reasonably necessary ancillary defense costs for indigent, self-represented defendants,7 the Judicial Branch is not so authorized. We reasoned that, because ‘‘the statutes governing public defender services,
In the present case, the defendant claims that his motion for public funds was denied solely because he had retained private counsel, in violation of his constitutional rights, which effectively asks us to decide the issue we left unaddressed in Wang. At the outset, however, we emphasize that the fourteenth amendment due process right to publicly funded expert or investigative services, to the extent that such services are reasonably necessary to formulate and to present an adequate defense to pending criminal charges, belongs only to indigent criminal defendants. Id., 231; see Ake v. Oklahoma, supra, 470 U.S. 76 (‘‘[The United States Supreme Court] has long recognized that when a [s]tate brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to [ensure] that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the [f]ourteenth [a]mendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.’’ (Emphasis added.)). Before we consider any questions left open by Wang concerning the connection between an indigent defendant’s access to public funding for expert or investigative services and the nature of his legal representation, we must consider the existence of the threshold factual predicate to such an inquiry, namely, the indigency of the defendant. In contrast to Wang, in which Wang’s indigency was undisputed; State v. Wang, supra, 312 Conn. 226–27; the trial court in the present case expressly declined to find that the defendant was indigent. See footnote 4 of this opinion and accompanying text.
Determining whether the trial court properly declined to find the defendant indigent and instead referred him to the public defender’s office requires us to consider the respective roles of the trial court and the public defender in that process. We previously have held that the ‘‘trial court’s assessment of the defendant’s offer of proof pertaining to whether he was indigent and was, therefore, eligible for state funded expert assistance, is a factual determination subject to a clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . .
‘‘[
Particularly after Wang, we understand our case law to establish that the trial court’s role in the indigency determination is secondary to that of the public defender’s office, insofar as the commission is the entity statutorily authorized to investigate and determine claims of indigency through local public defender’s offices. See State v. Martinez, 295 Conn. 758, 784–85 n.21, 991 A.2d 1086 (2010); see also State v. Flemming, 116 Conn. App. 469, 481, 976 A.2d 37 (2009) (‘‘the office of the public defender is the only entity upon which a statutory duty is imposed to investigate a claim of indigency’’ (emphasis in original; internal quotation marks omitted)). As we observed in Wang, ‘‘the primary purpose of [No. 74-317, § 7, of the 1974 Public Acts (P.A. 74-317), which was codified at . . .
Indeed, the statutes governing indigent defense expressly recognize that the trial court’s role in the indigence determination process is secondary to that of the commission. Section
Consistent with
The defendant contends, however, that the trial court’s approach raises concerns with respect to his right to choice of
We conclude that the defendant’s concerns about futility and loss of counsel are unfounded on the record of this case. First, we do not understand the OCPD’s amicus brief to suggest that the relationship with private counsel must be terminated before the commission conducts an initial investigation of indigency and reviews the application for assistance with defense costs; rather, we understand that policy to suggest that any defendant seeking public funding for defense costs must ultimately accept representation from the public defender or proceed as a self-represented party prior to receiving such funding once eligibility is determined.11 Consistent with that reading, the trial court expressly stated that Kaloidis would be permitted to continue to represent the defendant during the application process and offered the defendant other options, such as continuing to represent the defendant as a special public defender, standby counsel, or with cocounsel, to be determined later. See footnote 5 of this opinion and accompanying text. Beyond establishing his indigence, the trial court’s desire to
II
The defendant also claims that the trial court abused its discretion by denying his motion in limine seeking to preclude certain evidence of the victim’s confidence in her identification of the defendant when presented with a photographic array by the police. The record reveals the following additional relevant facts and procedural history. In 2013, the Waterbury police received notice of a hit from the Combined DNA Index System (CODIS) database,12 which linked the defendant’s DNA profile to evidence collected during the police investiga- tion. Detective Pesce called the victim and asked her to come to the police station, but he was ‘‘very vague’’ when he called and did not make her aware of the CODIS hit. On October 14, 2013, the victim went to the police station and viewed a photographic array in a double-blind, sequential procedure. Pesce had created the array, and Detective Daniel Dougherty presented the array to the victim without Pesce present. The victim identified the defendant as her attacker and wrote on the defendant’s photograph: ‘‘I . . . am pretty certain that this is the young man who stabbed [me] 6 times on May of 2009 at 11 p.m. . . . on Rose Street in Waterbury . . . .’’
After making the identification, the victim met with Pesce and told him, unprompted, that she wished to clarify what she had previously written. The victim told Pesce that, although she had written that she was ‘‘pretty certain,’’ she was in fact ‘‘absolutely certain’’ that the person she had identified was her attacker. The victim
Prior to trial, the defendant filed two motions related to the victim’s identification of the defendant. First, the defendant moved to suppress the victim’s pretrial identification of him from the photographic array on the ground that it was unnecessarily suggestive and unreliable. Second, he moved to preclude the victim’s statement to Pesce that she was ‘‘absolutely certain’’ that the defendant was the person who attacked her and any in-court statements pertaining to her confidence in her identification of the defendant at the time of trial. The defendant argued that the challenged testimony would be irrelevant and unduly prejudicial, and that it invaded the province of the jury. The trial court held an еvidentiary hearing at which the victim, Pesce and Dougherty testified.
At the conclusion of the hearing, the trial court denied the defendant’s two motions.13 In denying the defendant’s motion in limine regarding the victim’s confidence statements, the trial court relied on, inter alia, this court’s decisions in State v. Dickson, 322 Conn. 410, 421, 141 A.3d 810 (2016), cert. denied, U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), and State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005) (overruled in part on other grounds by State v. Harris, 330 Conn. 91, 191 A.3d 119 (2018)), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006), for the proposition that the level of ‘‘certainty of a witness [is] a factor for the court to consider when determining the reliability of [an] identification,’’ and that, ‘‘as a result, clearly that information is important for the jury to consider.’’ The trial court also concluded that such confidence testimony does not invade the province of the jury because the victim would be subject to cross-examination regarding her claimed level of certainty and because it was ‘‘going to allow the defense to present expert testimony [on] issues of identification in general.’’ The trial court concluded that the victim’s certainty in her identification ‘‘is something that goes to the weight [of the evidence], as opposed to [its] admissibility.’’
At trial, the victim, Pesce and Dougherty testified regarding the victim’s identification of the defendant. In addition, the victim and Pesce testified regarding the victim’s confidence statements. The victim testified that she had signed the array and had written that she was ‘‘pretty certain’’ that the photograph she had selected was of her attacker. The victim explained that, ‘‘[w]hen I said I was pretty certain, I meant—I put it in those words, but I meant I was absolutely certain. I just put it down as pretty certain.’’ She testified that, ‘‘[j]ust a few minutes after’’ she wrote on the signed array, she told the
The defendant then presented testimony from Kevin Colwell, a professor of psychology at Southern Con- necticut State University, who testified as an expert on the reliability of eyewitness identifications. Colwell testified that a confidence statement that is made at the time of viewing is the most reliable and that there appears to be no relationship between confidence statements made after an initial identification and reliability. He further testified that this is ‘‘[b]ecause the process of having to say several times that this is the person causes us, in general, as humans, just to become more confident as we’ve seen the person more and more . . . .’’
The trial court subsequently instructed the jury that it could ‘‘consider the strength of the identification, including the witness’ degree of certainty. Certainty, however, does not mean accuracy.’’ The trial court also instructed the jury that, ‘‘[w]hen assessing the credibility of the testimony as it relates to the issue of identification, keep in mind that it is not sufficient that the witness be free from doubt as to the correctness of the identification of the defendant; rather, you must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find him guilty on any charge.’’
On appeal, the defendant, supported by the amicus curiae, The Innocence Project, argues that the trial court improperly denied his motion in limine seeking to preclude evidence of the victim’s change in confidence following her photographic array identification of the defendant, her recollection at trial of her confidence in her identification at the time it was made, and her present confidence in her identification. Challenging the link between the victim’s postidentification confidence statements and the accuracy of her identification, the defendant claims that the trial court abused its discretion because the victim’s postidentification confidence statements were irrelevant, more prejudicial than probative, self-bolstering and invaded the province of the jury. The defendant argues that the victim’s postidentification confidence statements were not relevant because, ‘‘[i]f there is no scientific suрport for a relationship between [the victim’s] testimony at trial about her present certainty or how she recalled her past certainty, then those statements do not make it more or less probable that her identification is accurate . . . .’’ The amicus
‘‘[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.’’ (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001).
‘‘ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.’’ Conn. Code Evid. § 4-1.
After the completion of briefing in the present case, we issued our decision in State v. Harris, supra, 330 Conn. 91.14 In Harris, a defendant charged with, inter alia, felony murdеr and first degree robbery challenged the trial court’s denial of his motion to suppress an out-of-court and a subsequent in-court identification of him by an eyewitness, claiming that the out-of-court identification resulted from an unnecessarily suggestive procedure and that both identifications were unreliable. Id., 95–96. We concluded that the out-of-court identification procedure was unnecessarily suggestive but that the identification nevertheless was sufficiently reliable to satisfy federal due process requirements. Id., 96. We also concluded that ‘‘the due process guarantee of the state constitution . . . provides somewhat broader protection than the federal constitution with respect to the admissibility of eyewitness identification testimony but that . . . the trial court’s failure to apply the state constitutional standard that we [adopted in Harris] was harmless because the court reasonably could not have reached a different conclusion under that more demanding standard.’’ (Footnote omitted.) Id.
In Harris, we concluded, as a matter of state constitutional law, that, when an eyewitness identification allegedly results from an unnecessarily suggestive procedure, ‘‘the defendant has the initial burden of offering some evidence that a system variable undermined the reliability of the eyewitness identification. . . . If the defendant meets this burden, the state must then offer evidence demonstrating that the identification was reliable in light of all relevant system and estimator variables. . . . If the state adduces such evidence, the defendant must then prove a very substantial likelihood of misidentification. . . . If the defendant meets that burden of proof, the identification must be suppressed.’’ (Citations omittеd.) Id., 131. When there is evidence of a suggestive procedure, ‘‘the trial court
Significantly, we observed in Harris that ‘‘we stated in Guilbert ‘there is at best a weak correlation between a witness’ confidence in his or her identification and its accuracy’ . . . whereas the court in [State v. Henderson, 208 N.J. 208, 292, 27 A.3d 872 (2011)] concluded that there is a correlation between high confidence at the time of the identification, before receiving any feedback or other information, and accuracy. . . . In our view, these statements are not inconsistent. Rather, Guilbert states the general rule and Henderson recognizes an exception to that rule. In any event, to the extent that this issue is the subject of ongoing scientific controversy, the parties may present expert testimony on the issue at the pretrial hearing and at trial in accordance with our [decision] in Guilbert.’’ (Citations omitted.) State v. Harris, supra, 330 Conn. 133–34 n.31. Although the defendant correctly observes that Harris addressed confidence statements made as part of an identification, whereas the present appeal challenges confidence statements made after an identification prоcedure, we nevertheless find our conclusions in that case instructive in the present appeal.
Harris was decided as a matter of federal and state constitutional law. Nevertheless, we observed that, ‘‘[i]n the absence of evidence of a suggestive procedure or other extraordinary circumstances . . . we continue to believe that evidence relating solely to estimator factors that affect the reliability of the identification goes to the weight, not the admissibility, of the identification. See Perry v. New Hampshire, [565 U.S. 228, 237, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012)] (‘[t]he [c]onstitution . . . protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the
In the present case, the trial court’s decision to admit evidence of the victim’s postidentification confidence statements and expert testimony from the defendant concerning the connection between confidence statements and reliability and accuracy allowed for the presentation of current scientific evidence on the relationship between confidence and accuracy, while also leaving to the jury the ultimate decision of which evidence to credit. Moreover, there was no evidence of a suggestive procedure in this case, and the defendant does not challenge in this appeal the trial court’s denial of his motion to suppress the identification itself. In Harris, we noted that, ‘‘[i]n the absence of evidence of a suggestive procedure or other extraordinary circumstances . . . evidence relating solely to estimator factors that affect the reliability of the identification goes to the weight, not the admissibility, of the identification.’’ (Emphasis added.) Id., 132. Among those estimator factors is the confidence of the eyewitness. Id., 124 n.26. Accordingly, we conclude that the trial court did not abuse its discretion in concluding that the victim’s confidence statements were relevant evidence.
Moreover, under the case law governing at the time of the trial court’s decision on the motion to suppress, a witness’ confidence in an identification, both at the time it was made and at trial, is a relevant factor to be considered in determining whether an identification is reliable as both a constitutional and evidentiary matter. See Manson v. Brathwaite, 432 U.S. 98, 108, 115–16, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) (level of certainty testified to at trial was factor that supported reliability of identification); Neil v. Biggers, 409 U.S. 188, 195–96, 200–201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (same); State v. Dickson, supra, 322 Conn. 421 (‘‘ ‘level of certainty’ ’’ is factor to be considered in determining whether identification made during unnecessarily suggestive procedure is reliable);16 State v. Crosby, 182 Conn. App. 373, 409, 190 A.3d 1 (fact that eyewitnesses testified at suppression hearing that they were ‘‘100 percent certain at the time of the identification that the defendant was the perpetrator’’ supports reliability of identification), cert. denied, 330 Conn. 911, 190 A.3d 1 (2018). In light of this existing case law, it was not an abuse of discretion for the trial court to conclude that the victim’s professed level of confidence in her identification shortly after her identification and at trial was relevant to the jury’s determination of whether the defendant was the individual who attacked the victim. We note that the victim’s confidence statement made shortly after her identification, in which she said she was ‘‘absolutely certain,’’ was relevant to more than just the reliability of her identification; additionally, it clarified the meaning of what she wrote on the photograph when she initially identified the defendаnt as her attacker. The evidence showed that, within ten or fifteen minutes of her first confidence statement written on the photograph of the defendant, the victim, unprompted, told the police that the words she wrote did not accurately demonstrate her level of confidence at the time she made the initial identification. Because, as the defendant concedes, the confidence statement made by the victim at the time of the identification ‘‘may have some relationship to the identification’s reliability,’’ it was not arbitrary or unreasonable for the trial court to conclude that evidence of what the victim meant by her initial confidence statement was relevant, particularly when such evidence came without prompting by the police.
The defendant also claims that the victim’s postidentification confidence statements regarding her identification were more prejudicial than probative. Pursuant to the Connecticut Code of Evidence, ‘‘[r]elevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.’’ Conn. Code Evid. § 4-3. ‘‘Situations in which relevant evidence should be excluded because of prejudice include: (1) if the facts offered may unduly arouse the jury’s emotions, hostility, or sympathy; (2) if the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues; (3) if the evidence offered and the counterproof will consume an undue amount of time; and (4) if the
The defendant further claims that an eyewitness’ testimony regarding confidence in a prior identification is self-bolstering and invades the province of the jury. ‘‘Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact . . . .’’ Conn. Code Evid. § 7-3 (a). The defendant relies on case law observing that a witness may not comment on another witness’ credibility and that an expert witness is not permitted to give an opinion as to whether another witness is lying оr telling the truth. See, e.g., State v. Singh, 259 Conn. 693, 706–708, 793 A.2d 226 (2002); E. Prescott, supra, § 7.10.4, p. 475. Although questions that require a witness to express an opinion on the credibility of another witness invade the jury’s province because the jury is the exclusive judge of credibility; see State v. Singh, supra, 707; a witness’ testimony regarding her own confidence in her identification does not invade the jury’s province because such testimony, regarding something of which the witness has personal knowledge, is simply a tool to be used by the jury to evaluate the accuracy or credibility of the witness’ identification. For that reason, it was not arbitrary or unreasonable for the trial court to conclude that the witness’ postidentification confidence statements did not invade the province of the jury.
Finally, we address the suggestion of the amicus curiae, The Innocence Project, that we adopt evidentiary rules establishing that testimony concerning eyewitness certainty should be admitted only when it stems from the earliest identification procedure that complies with
The Innocence Project, relying on social science research, emphasizes that confident eyewitnesses are often inaccurate and that eyewitness confidence can be an extremely influential factor in jury determinations of an eyewitness’ accuracy. See G. Wells et al., ‘‘The Confidence of Eyewitnesses in Their Identifications from Lineups,’’ 11 Current Directiоns Psychol. Sci. 151, 151, 153 (2002) (in study, ‘‘[m]istaken identification by eyewitnesses was the primary evidence used to convict innocent people whose convictions were later overturned by forensic DNA tests,’’ and ‘‘three fourths of these convictions of innocent persons involved mistaken eyewitness identifications, and, in every case, the mistaken eyewitnesses were extremely confident, and, therefore, persuasive at trial’’); Massachusetts Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices (July 25, 2013) p. 20, available at http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report-2013.pdf (last visited February 24, 2020) (‘‘eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an eyewitness identification’’ (internal quotation marks omitted)). The Innocence Project argues that eyewitness statements can be relevant and probative when they are the result of procedures that minimize the possibility of suggestion and memory contamination,18 such as the procedures endorsed by the legislature in
We decline to categorically conclude that there is no correlation between a witness’ postidentification confidence in his or her identification and the accuracy of that identification, especially given our recent reaffirmation in Harris of the process that already exists, following Guilbert, to address concerns regarding the link between confidence and accuracy. See State v. Harris, supra, 330 Conn. 132 (‘‘[i]n the absеnce of evidence of a suggestive procedure or other extraordinary circumstances . . . evidence relating solely to estimator factors that affect the reliability of the identification goes to the weight, not the admissibility, of the identification’’). In Harris, we concluded that, ‘‘as an evidentiary matter, and even in cases in which an identification was not
The Innocence Project has failed to demonstrate any great shift in the relevant science since our decision in Harris that would warrant the imposition of a per se exclusionary rule or а departure from the process enumerated in Guilbert, Dickson, and Harris, which allows for the admission of both postidentification confidence statements and expert testimony to challenge the reliability and accuracy of those statements. Accordingly, we conclude that the trial court did not abuse its discretion by denying the defendant’s motion in limine seeking to preclude evidence of the victim’s postidentification confidence in her identification of the defendant as her attacker.
The judgment is affirmed.
In this opinion the other justices concurred.