State v. Finan

881 A.2d 187

275 Conn. 60

STATE of Connecticut v. Michael FINAN.

No. 17185.

Supreme Court of Connecticut.

Argued February 16, 2005.

Officially released August 16, 2005.

Pamela S. Nagy, Special Public Defender, for the appellant (defendant).

Lisa A. Riggione, Senior Assistant State's Attorney, with whom, on the brief, was James E. Thomas, State's Attorney, for the appellee (state).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

The defendant, Michael Finan, appeals, following our grant of certification to appeal, from the judgment of the Appellate Court affirming his conviction and concluding that the trial court properly admitted into evidence the lay opinion testimony of four police officers as to the identification of the defendant on a surveillance videotape of a robbery. State v. Finan, 82 Conn.App. 222, 233, 240, 843 A.2d 630 (2004). The defendant claims that the Appellate Court improperly determined that the opinion testimony of the four police officers was not an opinion as to the ultimate issue in the case. We agree with the defendant, and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court set forth the following facts, which reasonably could have been found by the jury. "At approximately 2:50 a.m. on December 23, 1999, [a man later identified as] the defendant and an unidentified man entered a 7-Eleven convenience store in South Windsor, one behind the other, while [the store clerk] was working and while the store's surveillance video camera was operating and aimed in the direction of the checkout area. The [man identified as the] defendant was wearing a green hooded sweat-shirt, and the unidentified man wore a mask and carried a rifle or shotgun. The videotape showed the unarmed man walking past the checkout area out of the camera's range after which the armed man could be seen stopped at the checkout counter and pointing his weapon at the clerk. Shortly thereafter, the unidentified armed man could be seen walking from the checkout area out of the store, and the defendant also could be seen simultaneously exiting the store. During the subsequent investigation, four South Windsor police officers viewed the videotape of the two men entering and departing from the store, and of the events of the robbery itself involving the unidentified man." Id., 224-25, 843 A.2d 630.

"Prior to the start of the trial, the defendant filed a motion to preclude testimony by [the] four [South Windsor] police officers as to their opinion that he was depicted on the videotape. The defendant argued that the officers' testimony that he was the unmasked individual on the videotape was an opinion on an ultimate issue, which is prohibited by State v. Heinz, 193 Conn. 612, 627, 480 A.2d 452 (1984), and § 7-3 of the Connecticut Code of Evidence."¹ In response, the state proffered that the officers would not testify as to their opinion, but rather as to their suspicion that the defendant was depicted on the videotape. The state argued that the testimony was admissible under this court's holding in State v. Fuller, [56 Conn.App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S.Ct. 262, 148 L.Ed.2d 190 (2000)]. Although the court granted the motion in limine, the court stated that the officers would be permitted to testify in that regard as long as their testimony was limited to their suspicions that the defendant was depicted on the videotape.

"Subsequently, the four officers testified at trial that after viewing the surveillance videotape, they suspected that the unmasked man on the videotape was the defendant. Detective Michael Thompson testified that he had known the defendant for ten years, had watched him grow up and knew his family. He stated that his suspicions were based on the defendant's mannerisms and shy walk. Detective Michael Russotto testified that he knew the defendant and his family for eight to ten years and suspected that the defendant was the unmasked man on the videotape. He claimed that he recognized the defendant from his profile. Officer Kristina Ferrante testified that she had known the defendant for eight years and suspected that he was the man on the videotape on the basis of his mannerisms, specifically his profile and walk. Finally, Officer Daniel Martin testified that upon reviewing the videotape, he immediately suspected that the defendant was the unmasked man on the basis of his sixteen years of contact with the defendant and, in particular, the defendant's distinct walk. In addition to the police officers' identification testimony, the state offered testimony from Robert Teachman, who stated that the defendant had told him that he had participated in the robbery." State v. Finan, supra, 82 Conn.App. at 226-27, 843 A.2d 630.

"On October 30, 2000, the jury found the defendant guilty of robbery in the second degree and conspiracy to commit robbery in the second degree. On December 12, 2000, the court found the defendant in violation of his probation [imposed on a previous conviction] and on February 13, 2001, sentenced him to a total effective term of sixteen years incarceration, suspended after seven years, and five years probation." Id., at 225, 843 A.2d 630.

The defendant subsequently appealed from the judgment of conviction to the Appellate Court, claiming that the trial court had abused its discretion when it permitted the police officers to testify as to his identity on the store surveillance videotape.² Id., at 224, 843 A.2d 630. The Appellate Court first concluded that the state improperly had characterized the officers' testimony as suspicion rather than opinion testimony. Id., at 228, 843 A.2d 630. It further determined that the testimony did not constitute prohibited lay opinion as to the ultimate issue in the case because, although the identification of the person in the videotape as the defendant was material to his participation in the robbery, standing alone, his presence in the store was not sufficient evidence of his guilt. Id., at 232, 843 A.2d 630. The court finally concluded that the probative value of the officers' testimony outweighed its prejudicial effect, and that, therefore, it was admissible. Id., at 234, 843 A.2d 630. Accordingly, the Appellate Court affirmed the defendant's conviction, with one judge dissenting. Id., at 241, 843 A.2d 630. Thereafter, we granted the defendant's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that, under the circumstances of this case, the trial court properly admitted the lay opinion testimony of the police officers as to the identification of the defendant on the convenience store surveillance videotape?" State v. Finan, 269 Conn. 901, 851 A.2d 304 (2004). This appeal followed.

On appeal, the defendant claims that, even if the police officers' testimony was admissible under § 7-1 of the Connecticut Code of Evidence,³ it was inadmissible as an opinion on an ultimate issue in the case in violation of § 7-3 of the Connecticut Code of Evidence. Specifically, the defendant claims that, although a layperson may testify to the identity of a defendant as the perpetrator in limited circumstances, a layperson may not testify to the identity of the defendant if such testimony constitutes an opinion on an ultimate issue to be decided by the trier of fact. The defendant further claims that the admission of the officers' testimony was particularly harmful due to the otherwise weak nature of the state's case, and that, therefore, he should be granted a new trial.

The state disagrees with the defendant's portrayal of the officers' testimony as opinion testimony on an ultimate issue in the case, contending that the defendant's presence at the scene of the robbery did not itself establish his guilt. Should this court determine that the officers' testimony constituted opinions on an ultimate issue, the state urges this court to construe their testimony as an exception to the rule otherwise barring such testimony because their opinions concerned identity. Finally, the state claims that the defendant has failed to demonstrate that any impropriety in admitting the officers' testimony was harmful because it merely corroborated additional eyewitness identification of the defendant as the perpetrator of the robbery.

We begin by setting forth the applicable standard of review. "Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error." (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). With this standard in mind, we turn to the defendant's claims.

We begin with § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that, "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact ...." As the commentary to § 7-3 indicates, the rule adopts the common-law bar against admission of a witness' opinion on an ultimate issue in a case. The common-law rule protects the defendant's right to have a jury determine his guilt or innocence. State v. Heinz, supra, 193 Conn. at 628, 480 A.2d 452.

We agree with the Appellate Court that the phrase "ultimate issue" is "not amenable to easy definition." State v. Finan, supra, 82 Conn.App. at 231, 843 A.2d 630. As a rule, however, "[t]estimony is objectionable if it embraces an opinion on the ultimate issue to be decided by the trier of fact." (Internal quotation marks omitted.) State v. Spigarolo, supra, 210 Conn. at 372, 556 A.2d 112. It is improper for a witness to offer testimony that essentially constitutes a legal opinion about the guilt of the...