State v. McClendon

Opinion

MCDONALD, J.

The defendant, Charles McClendon, was convicted after a jury trial of two counts of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2) and (4), and two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), (2) and (4). On appeal, the defendant claims that the Appellate Court improperly affirmed the trial court’s rulings (1) denying his motion to suppress certain identification evidence, (2) refusing to admit into evidence a police report, and (3) excluding the testimony of a defense expert on the subject of eyewitness identification. We affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. At approximately 4:40 p.m. on August 11, 1987, Darlene Hale was at her desk at C & K Moving Company (C & K) at 211 Walnut Street in Hartford. A man came in and requested a job application. He was five feet six or seven inches tall and weighed between 150 and 165 pounds. He was black and had short dark hair, a mous-tache and a pockmarked face. He was wearing gold-rimmed tinted eyeglasses and a blue shirt with the sleeves rolled up. She handed the man an application. At that time, Dennis Shortell, the owner of C & K, asked Hale to place a telephone call. After she had placed the call, a man came up behind her, put a silver and black gun to her head and demanded money. Hale noticed that the robber had the same rolled up blue shirt sleeves and the same voice as the man to whom she had given the job application. As Hale emptied her wallet into the robber’s bag, Grayland Cannon, another employee of C & K, walked in. The robber demanded money from Cannon and, when Cannon told the robber that he did not have any money, the robber shot him. The robber then went to Shortell’s office, demanded money, shot Shortell and fled. Both Cannon and Shortell died from their gunshot wounds.

At approximately 4:45 p.m. that same day, from his residence in the vicinity of C & K, Hector Colon heard “three or four” gunshots and subsequently saw a black male “walking real fast . . . looking backwards.” The man was wearing a blue shirt with “no sleeves” and carrying a paper bag under his arm. Around that same time, also in the vicinity of C & K, Stephen Tinker observed a man wearing gold-rimmed tinted eyeglasses and a blue and white striped shirt. Shirley Lassiter also saw a man wearing a “blue short sleeve shirt” and walking fast. Both Tinker and Lassiter later identified the man they saw that day as the defendant from an array of photographs and also identified him at trial.

Within minutes of the shooting, the police arrived, and Hale gave them a description of the job applicant. When police detectives arrived at approximately 5 p.m., Hale gave an even more detailed description. Hale described the applicant as a black man, twenty to twenty-five years old, medium complexion, short cropped hair, about five and one-half feet tall, and about 150 pounds. She described him as wearing a light blue dress shirt with the sleeves rolled up and most of the buttons undone. His shirt was untucked. He had a mous-tache and was wearing gold-rimmed eyeglasses with a yellow tint. Hale gave the police a sworn statement at the police station at approximately 8 p.m. that night. While Hale was at the police station, she also assisted the police in developing a composite sketch of the robber.

In the days immediately following the C & K robbery, Hale was also shown three photographic arrays. On August 12, she was shown an array of photographs of black men with eyeglasses that did not include a photograph of the defendant, and she did not make an identification. On August 14, she was shown two arrays, both of which included a photograph of the defendant. Hale could not identify any one photograph as that of the job applicant and she told the police that she needed to see the job applicant in eyeglasses in order to identify him.

“On August 13, 1987, the police executed a search and seizure warrant on the defendant’s residence at 18-20 Edgewood Street in Hartford. In the apartment, the police found a twenty-two caliber handgun with a silver cylinder and white plastic grips. James McDonald, a forensic firearms examiner, testified at trial that in his opinion ‘all three of those [bullets that killed Shortell and Cannon and injured a victim in another uncharged robbery] were fired from [the gun found in the defendant’s apartment] and no other revolver.’ ” State v. McClendon, 45 Conn. App. 658, 661, 697 A.2d 1143 (1997).

In September, 1989, two years after the C & K robbery, the defendant was incarcerated on unrelated robbery charges. During those two years, Hale was shown, on seven or eight occasions, several arrays that included a photograph of the defendant, but she could not identify the defendant as the man in the gold-rimmed tinted eyeglasses who had asked her for the job application. In May, 1989, Hale was contacted by Detective Ronald Faggaini of the Hartford police department, who recently had taken over the investigation of the C & K robbery. Hale told him that since she had not seen the robber’s face, she could not identify the robber. She also told Faggaini that she recognized the robber’s arm as that of a man to whom she had given a job application minutes before the robbery. Shortly thereafter, she told a state’s attorney that she might be able to recognize the robber’s voice if she heard it again. The police then secured a search and seizure warrant authorizing the defendant to be placed in a lineup and to give a voice sample.

On September 15, 1989, Hale viewed a lineup composed of six black men. She also heard the men speak. From the lineup and the voice sample, Hale identified the defendant as the gunman. The defendant subsequently was charged with and found guilty of the C & K robberies and murders.

The defendant filed a pretrial motion to suppress the photographs, the tape or video recordings and any identifications of him that had been made from the lineup. The trial court denied this motion. At trial, Hale identified the defendant as the perpetrator of the crimes. The defendant sought to introduce expert testimony from a psychologist on eyewitness identification, and the trial court excluded the testimony of the expert. The trial court also excluded a police report containing a record of Hale’s conversation with Faggaini on May 18, 1989.

The defendant appealed from the trial court’s judgment to the Appellate Court, which affirmed the judgment of the trial court. We granted the defendant’s petition for certification pertaining to the sufficiency of the search and seizure warrant application, the exclusion of the testimony of the expert witness on eyewitness identification, and the exclusion of the police report.¹

I

The defendant first claims that the trial court improperly denied his motions to suppress Hale’s identification of him as the perpetrator of the crimes because there was no probable cause for a search and seizure warrant to place him in a lineup and to take voice samples.²

The defendant argues that the warrant authorizing the lineup and voice sample violates article first, § 9, of the Connecticut constitution. He claims that the lineup was not “clearly warranted by law” because the affidavit in support of the warrant failed to establish probable cause. The defendant argues that the facts relied upon to establish probable cause are in fact totally unrelated to the C & K murders and robbery. We disagree.

The affidavit accompanying the application for the warrant contained the following information. Hale gave a detailed description of the man to whom she had given an employment application minutes before the shootings on August 11, 1987, and of the handgun that was used. She also assisted the police in preparing a composite drawing of the perpetrator. This composite was shown to Cheryl Spillane, the victim of an unrelated robbeiy on August 7, 1987, at Spillane’s Service Station in Hartford. Spillane stated that the person who had robbed her resembled the composite drawing and that he had a scar on his left cheek. Another eyewitness to that robbeiy, Armando Rodriguez, identified the defendant from an array of photographs as being the perpetrator of that robbery. Hale was shown photographic arrays that included a photograph of the defendant, but she was unable to identify the man to whom she had given the employment application and who had held her at gunpoint. Hale stated that she could not make the identification without seeing the man wearing eyeglasses, as the C & K robber had worn. Two years after the robbery, while talking to the state’s attorney, Hale stated that if she heard the same voice again she might be able to identify the speaker as the robber. The affidavit concluded by stating that a lineup viewing and a voice sample of the defendant heard by Hale may produce a positive identification. This affidavit was presented to a judge of the Superior Court, who found that probable cause existed to place the defendant in a lineup and to take his voice sample.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Citations omitted; internal quotation marks omitted.) State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991).

“In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom. . . . We view that information, however, in the light most favorable to the issuing judge’s determination of probable cause, and ‘[i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination.’ ” (Citation omitted.) State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992).

In the present case, we conclude that the affidavit presented a factual basis to support the court’s conclusion that probable cause for the lineup and the voice sample existed. The affiants attested that Hale gave a detailed description of the man who had requested the employment application, and that she had the opportunity to see that man and speak with him. The police developed a composite sketch with Hale’s assistance. Spillane, the victim of another robbery, told the police that the composite resembled the man who had robbed the service station on August 7, 1987, and that he had a scar on his left cheek. Spillane’s coworker, Rodriguez, confirmed her identification by recognizing, in a photographic array, the defendant as the robber of the service station. Hale stated that she could not identify the gunman from the photographic arrays because he was wearing eyeglasses at the time of the shooting, and the defendant was not wearing eyeglasses in any of the photographs. Hale did believe, however, that she could recognize the robber’s voice and his face if he were to wear eyeglasses.

The defendant argues that the absence from Hale’s description of a scar under his left eye undermines the finding of probable cause. Although this is relevant to her identification, Hale’s assistance in the preparation of the composite sketch was sufficiently detailed and Spillane thought it resembled the man who had robbed her. The identification was confirmed when Rodriguez, another eyewitness to the service station robbery, positively identified the defendant as the robber from a photographic array. The absence of one facial detail in Hale’s description does not vitiate the positive identification of the composite sketch made from her description. Hale did describe the robber as having a pockmarked face or having a razor burn as the defendant had.

Hale stated that she could identify the robber if he wore eyeglasses and she heard his voice, conditions that had not and could not prevail in the previous photographic identification attempts. In light of Hale’s composite sketch, which was identified as the defendant by other robbery victims, the issuing judge reasonably could have inferred that probable cause existed to conduct the lineup with the defendant participating and a voice recording of the defendant. We conclude that probable cause was established for the police to obtain further evidence concerning the robbery and murders. See Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994).

II

The defendant claims that the Appellate Court improperly affirmed the trial court’s ruling excluding a police report under the residual exception to the hearsay rule. We agree with the Appellate Court.

The police report was prepared by Detective Fag-gaini, who had died one year after the probable cause hearing and two years before the trial. The police report provides in relevant part: “On [May 18, 1989, at 3:30 p.m., Hale] showed at [the Crimes Against Persons] Division for a scheduled appointment. . . .

“Ms. Hale was made aware that a[n] arrest was in sight concerning said incident and that she had nothing to fear from the suspect since he is currently incarcerated for other crimes. Ms. Hale stated since she didn’t see the culprit’s face at the time of the robbery/murder, she wouldn’t be able to make a[n] identification.

“Ms. Hale stated it was a[n] assumption on her part that the black male who entered minutes before was the one responsible. Ms. Hale stated that she based this on partial clothing observed on the culprit at the time of the incident. Ms. Hale stated after the first male left when receiving a job application, she was seated at her desk. That she felt what appeared to be a gun to her head. That a black male then ordered her to not turn around. That it was at this time that Hale observed the arm of a black male. That she recalled a light blue shirt with the sleeves being long. That the sleeves were rolled up two or three times. Hale stated that she was seven months pregnant at this time and scared. That all she really recalls was the gun to her head.

“Hale was asked why she felt so strongly that the gun was a[n] automatic. Hale replied, because of the shape of the gun. [Faggaini] then showed Hale a couple of photographs [that] depicted the murder weapon. Hale stated that the photographs of said weapon were similar to the weapon observed on [August 11, 1987]. Ms. Hale stated she is really unsure if she could identify the male who she gave a[n] application to. . . .”

Hale denied in her testimony having told Faggaini that she could not identify the man who had committed the C & K robbery since she did not see the robber’s face.

The defendant then offered the report as a full exhibit under the residual exception to the hearsay rule. The trial court sustained the state’s objection to its admission on the ground that the report was “more likely misleading than accurate” and that “there is absolutely nothing of any special trustworthiness . . . with this undated report . . . .”

“An out of court statement is hearsay when it is offered to establish the truth of the matters contained therein. . . . As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court, under oath, and subject to cross-examination. . . . The residual, or catchall, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992).

The report was Faggaini’s summary of his interview with Hale. Hale neither signed nor otherwise adopted the report, and she denied making some of the statements contained in the report. The defendant claims, however, that the report met the requirement of necessity because Faggaini died before the trial and he was the author of the report. The defendant also argues that the statement was reliable and trustworthy because it was an official police report.

The trial court found that the statements concerning Hale’s inability to make an identification were misleading in the context of the entire report. We agree. The report was not written in clear and unambiguous terms. Although Faggaini reported that Hale had said she could not identify the gunman since she did not see his face, Faggaini also reported that Hale recognized the gunman’s arm as that of the man to whom she had given the job application minutes before the robbery. The court also had before it the search warrant affidavit signed by Faggaini, in which Hale is quoted as saying that she could not identify the robber without seeing him wearing eyeglasses and hearing his voice. In these circumstances, the meaning of the report could not be accurately developed without cross-examining the author.

As Professor Wigmore points out, the residual exception to the hearsay rule demands “probability of trustworthiness [as] a practicable substitute for the ordinary test of cross examination.” 5 J. Wigmore, Evidence (3d Ed. 1940) § 1422. Wigmore also observes: “We see that under certain circumstances the probability of accuracy and trustworthiness of statement is practically sufficient, if not quite equivalent to that of statements tested in the conventional manner.” Id.

The trial court also had heard Hale testily that she did not see the robber’s face during the robbery, but that she could identify him from his clothing and voice as the man who earlier had asked her for a job application. She had denied making the statement that she could not identify the robber. The other facts in the report were otherwise generally consistent with Hale’s testimony at trial that she identified the earlier job applicant as the robber who had shot the victims.

The statement was contradicted by the evidence presented at the trial and was not corroborated by any other evidence. See United States v. Bailey, 581 F.2d 341, 349 (3d Cir. 1978). The trial court was therefore correct in concluding that the report was not reliable and trustworthy.

In the present case, the state produced other eyewitnesses who saw the defendant leaving the murder scene wearing the same clothing described by Hale at the time the crimes had been committed, and ballistic evidence that placed the murder weapon at the defendant’s apartment. We cannot say, in view of all the circumstances, that the trial court abused its discretion in refusing to admit the police report. We agree with the Second Circuit Court of Appeals that “[t]he residual hearsay exceptions [should be] applied in the rarest of cases, and the denial of admission under the exceptions can only be reversed for an abuse of discretion.” United States v. DeVillio, 983 F.2d 1185, 1190 (2d Cir. 1993). “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. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). The trial court’s judgment was not an abuse of discretion, and the Appellate Court’s affirmation was proper.

Ill

The defendant also argues that the Appellate Court improperly affirmed the trial court’s exclusion of the testimony of Michael Leippe, a psychologist who had been offered as an expert witness on the subject of eyewitness identification and memory retention. The trial court concluded that the testimony was within the general knowledge of the jurors and that it would not help to resolve the central issues in the case. The defendant contends that, because eyewitness testimony was critical to the identification of the defendant as the perpetrator, Leippe’s testimony on the vagaries of eyewitness memory and recall should have been admitted. The defendant argues that Leippe has special knowledge directly applicable to the central issues in the case, that his knowledge is not common to the average person, and that his testimony would have been helpful to the jury. We conclude, however, that the trial court did not abuse its discretion in excluding the testimony. “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.” (Citations omitted; internal quotation marks omitted.) State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986).

“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. . . . Almost uniformly, state and federal courts have upheld the trial court’s exercise of discretion to exclude [expert testimony on the reliability of eyewitness identifications]. . . . Such testimony has been excluded on the grounds that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question. . . . [It] is also disfavored because ... it invades the province of the jury to determine what weight or effect it wishes to give eyewitness testimony.” (Citations omitted; internal quotation marks omitted.) Id., 476-77.

Leippe’s testimony supports the trial court’s decision that his conclusions were “nothing outside the common experience of mankind.” Leippe testified in general terms about memory retention and the various circumstances that can deter memory and recall. He testified, among other things, that the confidence of an eyewitness does not correlate to the accuracy of observation, that variables such as lighting, stress and time to observe have an impact on accuracy, that leading questions and the repetition of testimony can increase an eyewitness’ confidence but not accuracy, that people remember faces best when they analyze many features and characteristics of the face rather than just one, that misleading police questions can alter memories, and that the most accurate descriptions are given immediately after a crime. These general principles should come as no surprise to the average juror. It is common knowledge that eyewitnesses may make mistakes and may forget what they have seen. Furthermore, the trial court instructed the jury to consider the potential unreliability of eyewitnesses, with specific reference to the conditions under which the witnesses viewed the perpetrator, the distance between them, and the length of time between the incident and the witnesses’ description. Thus, the jury was made aware that eyewitnesses may be mistaken, and it could consider Hale’s testimony in light of the trial court instruction and common knowledge.

When the trial court asked Leippe about the specific scientific principles upon which he had relied, he was unable to supply them. Leippe did refer to several areas of scientific inquiiy concerning eyewitness identification, but, despite the efforts of the court to clarify his testimony, he was unable to state his opinion to a “reasonable degree of scientific certainty.” Leippe admitted, in sum, that “we don’t always know what factors are influencing” an eyewitness. He conceded that a controversy existed in the area of the statistical probability of false identification, the one kind of information inaccessible to the average juror.³

Moreover, much of Leippe’s testimony is not “directly applicable to a matter in issue . . . .” Id., 476. On voir dire, Leippe conceded that there was no research on the subject of a combined oral and aural recognition, as in this case, and that he could give no estimate on the probable accuracy of such an identification. Leippe also described the effect of stress during perception on the ability of an eyewitness to recall an event. In this case, Hale had observed the defendant before she was under stress, when he had asked her for a job application. Hale testified that she had paid close attention to the defendant’s appearance when he had entered the C & K office to apply for a job because that was the procedure for handing out job applications. Hale had been instructed not to give a job application to any person whom she considered to be unkempt. She remembered that the job applicant on August 11 had his shirt unbuttoned. She also would listen to a job applicant’s voice to hear “how they talk,” in order to form an opinion of the applicant.

Defense counsel was not, moreover, without other means to bring the issue before the jury. “The weaknesses of identifications can be explored on cross-examination and during counsel’s final arguments to the jury.” Id., 478. In the present case, during the defendant’s cross-examination of Hale, defense counsel exhaustively probed the possibility of mistaken identification. During final argument, defense counsel described at length the possible reasons for a mistaken identification. The trial court, in its jury instructions, also fairly incorporated the defendant’s request to charge on eyewitness identification and gave numerous circumstantial factors for the jury to consider such as the distance between the witness and the robber, as well as any suggestive identification procedures used by the police.

The defendant cites State v. Chapple, 135 Ariz. 281, 290, 660 P.2d 1208 (1983), as authority supporting the admission of Leippe’s testimony. In Chappie, the Arizona Supreme Court held that the trial court had abused its discretion when it excluded expert testimony on eyewitness identification.⁴ We decline to follow Chapple and continue to follow the rationale of State v. Kemp, supra, 199 Conn. 473.⁵ We do not agree with the dissent that our decision in State v. Barletta, 238 Conn. 313, 312, 680 A.2d 1284 (1996), which involved the effects of cocaine use on the cognitive abilities of an eyewitness to a crime, a far cry from Leippe’s proposed testimony in the present case, affects the validity of Kemp.

“As the Supreme Judicial Court of Massachusetts has recently explained, ‘one may fairly contend that the jury would be aided by expert testimony. But [expert testimony on eyewitness identification], at least in this case and in most cases, deals with general principles, such as the fact that memories fade over time, that people under severe stress do not acquire information as well as alert persons not under stress, and that people tend unconsciously to resolve apparent inconsistencies between their memories and after-acquired facts. Obviously there axe aspects of these general principles on which experts might make some contribution in particular cases. However, juries are not without a general understanding of these principles and, as the trial of this case demonstrates, they see the possible application of these principles in concrete circumstances. The jury [must] have the opportunity to assess the witnesses’ credibility on the basis of what is presented at trial and not solely on general principles.’ Commonwealth v. Francis, [390 Mass. 89,101,453 N.E.2d 1204 (1983)].” State v. Kemp, supra, 199 Conn. 477-78.

Accordingly, we find that the trial court did not abuse its discretion in refusing to admit the testimony of Leippe.

The judgment of the Appellate Court is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN and NORCOTT, Js., concurred.

1 The certified questions were limited to the following:

“1. Did the Appellate Court properly conclude that, under the circumstances of this case, the trial court correctly held there was probable cause to support a warrant authorizing the seizure of the defendant for lineup and voice sample?

“2. Did the Appellate Court properly conclude that, under the circumstances of this case, the trial court did not abuse its discretion in refusing to permit the defendant from introducing a police report under the residual exception to the hearsay rule?

“3. Did the Appellate Court properly affirm the trial court’s refusal to admit expert testimony on the subject of eyewitness identification and memory retention?” State v. McClendon, 243 Conn. 943, 704 A.2d 799 (1997).

2 The defendant does not contest the use of a search warrant to create such a lineup. See State v. White, 229 Conn. 125, 147, 640 A.2d 572 (1994).

3 The colloquy between the trial court and Leippe provides in relevant part:

“The Witness: There’s controversy, but the controversy has to do with probabilities and Bay’s Theorem, and all kinds of statistical kinds of things, as to what’s the highest probability, all other things being equal, of getting a positive identification, versus a false identification. And how do you weigh and value these kinds of errors? So, in terms of giving the suspect the fair— the fairest shot, then of course, the best thing to do is to have — is to have six other people who look exactly like that person. Okay?

“The Court: Exactly?

“The Witness: Well, I mean, that’s the fairest shot. Right? I mean, that makes it totally a chance thing as to whether the person [will] be identified.

“The Court: And that’s fair?”

4 In Chappie, no direct or circumstantial evidence of any kind had connected the defendant with the crime other than the testimony of two eyewitnesses. State v. Chapple, supra, 135 Ariz. 290.

5 The dissent maintains that the Daubert standard; see Daubert v. Merrell Dow Pharmaceuticals, Inc.., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); for the admissibility of scientific evidence, which was adopted by this court in State v. Porter, 241 Conn. 57, 59, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384,140 L. Ed. 2d 645 (1998), is applicable to Leippe’s testimony. See United States v. Rincon, 28 F.3d 921 (9th Cir. 1994). The present case is not the proper vehicle to determine if such testimony is subject to the Daubert standard. Neither party has asked us to apply Daubert in this case, and the trial court found Leippe’s testimony to be within the general knowledge of jurors.