Argued March 16, 2015
Two substitute two part informations charging the defendant, in the first part in each case, with the crimes of robbery in the first degree and unlawful restraint in the first degree, and, in the second part in each case, with being a persistent dangerous felony offender, brought to the Superior Court in the judicial district of Waterbury, where the cases were consolidated and the first parts of the informations were tried to the jury before Crawford, J.; thereafter, the court denied the defendant's motion to suppress certain evidence and granted the state's motion to preclude certain evidence; subsequently, the court denied the defendant's motions for reconsideration and to strike certain evidence; verdicts of guilty; thereafter, the second parts of the informations were tried to the jury before Crawford, J.; verdicts of guilty; subsequently, the court denied the defendant's motions for a new trial and for reconsideration, and rendered judgments of guilty in accordance with the verdicts, from which the defendant appealed to the Appellate Court, Lavine, Sheldon and Mihalakos, Js., which affirmed the trial court's judgments, and the defendant, on the granting of certification, appealed to this court.
The defendant, who was convicted of, inter alia, robbery in the first degree, appealed to the Appellate Court, claiming that the trial court abused its discretion by precluding him from presenting expert testimony from a psychologist, P, on the reliability of eyewitness identifications. The defendant was charged in connection with two separate robberies of a liquor store and an outlet store, and the cases were consolidated and tried to a jury, where the defendant's theory of defense was misidentification. The liquor store operator was able to give a description of the perpetrator but was unable to identify him at trial. The outlet store operator, D, gave a description of the perpetrator at the time of the robbery and, in a subsequent written statement given to the police, stated that she had seen the perpetrator in the store previously. D also subsequently identified the defendant immediately from a photographic array of suspects. Prior to the start of the trial, the state moved to preclude the proffered testimony of P as to the various factors that affect the accuracy of eyewitness identifications and his opinion that certain of those factors rendered unreliable any identification of the defendant by the victims of the robberies. The trial court deferred ruling on that motion. During the trial, D testified that she had recognized the perpetrator as a regular customer in the outlet store and once again gave a description of the perpetrator. At the close of the state's evidence, the trial court denied the defendant's motion for a judgment of acquittal and granted the state's motion to preclude P's testimony. On appeal, the Appellate Court applied this court's recent decision in State v. Guilbert (306 Conn. 218, 49 A.3d 705), which overruled previous case law that had held that the reliability of eyewitness identifications was a matter within the knowledge of the average juror and that expert testimony on that topic was not helpful or would invade the province of the jury, and concluded that although the trial court based its decision to preclude P's testimony on grounds that were inconsistent with Guilbert, the trial court did not abuse its discretion under the particular facts and circumstances of this case. The Appellate Court determined that P's expert testimony would have been of limited utility to the jury because D, like the eyewitness in Guilbert, was already familiar with the defendant prior to his robbery of the outlet store and had recognized him as a regular customer prior to the robbery. Accordingly, the Appellate Court affirmed the trial court's judgments, and the defendant, on the granting of certification, appealed to this court. Held that the Appellate Court properly concluded that the trial court did not abuse its discretion in precluding the defendant's proffered expert testimony of P on the fallibility of eyewitness identifications as not relevant or not significantly helpful to the jury: a consideration of the nature and extent of D's prior familiarity with the defendant, along with the totality of the facts and circumstances surrounding her identification, demonstrated that D had a substantial opportunity to view the perpetrator when he entered the store during daylight hours and then stood in close proximity to her as she rang up his purported purchases, that D's description of the perpetrator's appearance, which was given prior to her identification of him from a photographic array and included details not apparent from that array, was generally consistent with the defendant's appearance, and that D's identification of the defendant was expeditious, as it occurred soon after the robbery and her selection of his photograph from the photographic array was immediate; moreover, the fact that D gave a more complete explanation at trial than she did to the police regarding why she had recognized the defendant as the perpetrator did not compel a reversal of the trial court's ruling.
Lisa A. Vanderhoof, assigned counsel, for the appellant (defendant).
Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Amy Sedensky, senior assistant state's attorney, for the appellee (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. In this opinion PALMER, ZARELLA, EVELEIGH, ESPINOSA and ROBINSON, Js., concurred.
ROGERS, C. J.
[317 Conn. 693] This case raises the question of whether the trial court abused its discretion in disallowing a criminal defendant from introducing expert testimony on the fallibility of eyewitness identifications. The defendant, Stanley Williams, appeals from the judgment of the Appellate Court affirming his conviction, following a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3),
two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). State v. Williams, 146 Conn.App. 114, 116-17, 75 A.3d 668 (2013). The defendant claims that the Appellate Court improperly concluded that the trial court acted within its discretion [317 Conn. 694] in precluding his expert from testifying because the Appellate Court reasoned that the eyewitness in question had sufficient prior familiarity with the defendant such as to make her identification of him reliable. We disagree with the defendant's claim and, accordingly, affirm the judgment of the Appellate Court.
The jury reasonably could have found the following facts, which the decision of the Appellate Court aptly recounts and the record otherwise reflects. On May 12, 2009, the Ideal Package Store on Hill Street in Waterbury (liquor store) was robbed when Satnam Kaur, whose husband owned the store, was working there alone. Id., 117. The robber pretended to shop for beer, then, when no other customers were in the liquor store, grabbed Kaur, put a large kitchen knife to her neck, forced her toward the cash register and stole approximately $400. Id., 117-18. Kaur's family members provided police with footage from the liquor store's video surveillance system. Id., 121. Kaur described the robber to police, but could not identify him from a subsequently produced photographic array. Id., 121-22.
On May 14, 2009, two days after the liquor store robbery, " a robbery occurred at the Overstock Outlet (outlet store) on Wolcott Street in Waterbury, where Marlyn DeJesus was working alone. The outlet store sold clothing and other merchandise. When the defendant entered the [outlet] store, DeJesus was working near the cash register in the front of the store. She recognized the defendant by sight as a regular customer [317 Conn. 695] and greeted him, as she did all customers. The defendant went directly to the rear of the [outlet] store, and DeJesus returned to what she was doing at the counter.
" The defendant removed a number of shirts from a rack and took them to the counter. DeJesus was standing approximately one foot away from the defendant and was able to see his face. DeJesus rang up the cost of the shirts and told the defendant how much he owed. Because the defendant just stared at her, DeJesus repeated the cost of the shirts. She then looked down, saw that the defendant's hands were partially concealed inside his sweatshirt and that he was wearing latex gloves. When the defendant withdrew his hands from his sweatshirt, he was holding a knife in his right hand. He grabbed DeJesus with his left hand, placed the knife at her neck and ordered her to open the cash register, which she did. The defendant removed cash from the drawer and asked DeJesus where the rest of the money was. DeJesus told him there was no more money. The defendant threw DeJesus to the floor, held the knife at the back of her neck and told her not to move or he would kill her. As he fled, the
defendant took DeJesus' purse. After she heard the door chimes ring, indicating that the defendant had left the outlet store, DeJesus called 911 and locked the door. Two police officers arrived at the [outlet] store. Although she initially was very upset, DeJesus calmed down while the police transported her to the station, where she provided a written statement." Id., 119.
At the scene, DeJesus reported to the responding officers what had occurred, and described the perpetrator as clean shaven, forty to forty-five years old and about five feet, eight inches tall. In her subsequent written statement, DeJesus described the robber as having a thin goatee, being five feet, six inches to five feet, eight inches tall, medium build, black, about forty years old and wearing a black knit hat and black hoodie. The [317 Conn. 696] statement further recites that DeJesus had " seen this black man in the store before." DeJesus was presented with a photographic array by an officer who had not prepared the array, and she was instructed that the array might or might not contain a suspect's photograph. State v. Williams, supra, 146 Conn.App. 122. DeJesus immediately identified the defendant as the man who had robbed her, and the officer told her the defendant's name and birth date, but not that he was a suspect. Id. At some point, police obtained video surveillance evidence of the robbery from the outlet store. Id., 123.
[317 Conn. 697] " On May 16, 2009, the defendant was apprehended at his residence on Garden Circle in Waterbury, which is located halfway between the liquor store and the outlet store. The defendant was charged in separate informations, in connection with the robberies previously described, with one count in each of robbery in the first degree in violation of § 53a-134 and unlawful restraint in the first degree in violation
of § 53a-95 (a)."  Id., 120.
The defendant elected a jury trial, which was held in July, 2010. At trial, his theory of defense was misidentification. Prior to the start of trial, the state moved to preclude the testimony of the defendant's disclosed expert witness, Steven Penrod, a psychologist, who was to testify as to the various factors that affect the accuracy of eyewitness identifications, and to opine that certain of those factors rendered any identification of the defendant, by either Kaur or DeJesus, unreliable. The defendant's initial written proffer indicated that Penrod would testify generally about the process and stages of memory, and about various things that could happen at each stage that could affect the formation, retention and retrieval of memories. The defendant subsequently submitted a supplemental proffer explaining how the proposed expert testimony would relate to the specific facts of this case. The trial court deferred ruling on the state's motion to preclude.
[317 Conn. 698] During the defendant's trial, the jury was shown moving and still images from the liquor store surveillance system, and Kaur testified that the images accurately depicted how the robbery had occurred. Id., 121. Kaur again described the robber, and her previous statement to the police was introduced, in part, into evidence; see State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986); but she could not identify the robber as being in the courtroom. State v. Williams, supra, 146 Conn.App. 121-22.
Moving images from the outlet store robbery also were shown to the jury, and DeJesus testified that the video accurately depicted the robbery. Id., 123. She testified that she recognized the robber as a " regular customer" when he entered the outlet store, and " described [him] as black, older, maybe in his late forties, short, scruffy looking, having a gray beard and wearing a black ...