STATE v. JVEIL OUTING, SC 17707

Judicial District of New Haven

 Criminal; Photo Array; Whether Trial Court Properly Prohibited Defendant's Expert from Presenting Testimony Regarding Certain Identification Concepts; Whether Trial Court Properly Denied Defendant's Motion to Suppress Identification Evidence.  The defendant was charged with murdering Kevin Wright.  Prior to trial, he moved to suppress the identifications of him made by two eyewitnesses, Ray Caple and Nadine Crimley, each of whom identified the defendant from a photo array.  In support of the motion, the defendant sought to introduce expert testimony regarding, among other things, the following identification concepts: (1) that witnesses who experience heightened levels of stress during a crime tend to make inaccurate identifications; (2) that under the "weapons focus effect," witnesses tend to focus on a perpetrator's weapon as opposed to the perpetrator's facial features; (3) that there is a weak correlation between a witness's confidence and the accuracy of an identification; (4) that pursuant to the "disguise effect," a perpetrator's use of a disguise makes an accurate identification more difficult; and (5) that when multiple witnesses discuss the crime with each other, the different versions become melded in such a way that the witnesses can no longer be certain of what they actually saw.  The trial court prohibited the defendant's expert from presenting testimony regarding these concepts, concluding that they were matters of common sense.  In subsequently denying the motion to suppress, the court emphasized that prior to being shown the photographic arrays, the witnesses were informed, both verbally and by way of a witness advisement form, that the perpetrator's photograph might or might not be present in the array.  It further found that even though the photographs were displayed simultaneously, they were remarkably similar, and, therefore, it was improbable that either witness exercised "relative judgment" by comparing the photographs to each other to find the one that most resembled the culprit.  It also determined that because Caple knew the defendant as a high school classmate for three and a half years, Caple's identification was not, as the defendant contended, tainted by the "unconscious transference" phenomenon, which occurs when a witness confuses a person seen in one context with one seen in another.  Additionally, the court decided that the identification process was fair and impartial notwithstanding that the police failed to employ a "double-blind" procedure, which would have prohibited officers who knew the identity of the suspect from conducting the procedure.  The defendant subsequently filed two motions for a mistrial in which he claimed that a police detective who was a state's witness had violated a witness sequestration order by interviewing a defense witness and that the prosecutor engaged in impropriety by mischaracterizing the testimony of a witness.  The court denied these motions, holding that the detective did not violate the sequestration order merely by interviewing a potential witness before the witness had testified and that the prosecutor did not engage in impropriety because the statements in question were brief and did not inflame the jury.  After the jury found the defendant guilty of murder, he filed this appeal in which he challenges the aforementioned rulings.