Judicial District of Fairfield


†††† †Criminal; Whether In-Court Identification Proper under State v. Smith Because it was not the Product of Unnecessarily Suggestive Out-of-Court Identification; Whether Smith Should be Overturned. †The state accused the defendant and two other men of robbing and assaulting Albert Weibel.† At trial, the defendant filed a motion in limine, seeking to preclude Weibel from identifying him in court.† He argued that the in-court identification procedure that is typically used in criminal trials, where the defendant is identified while seated at counselís table, is unnecessarily suggestive.† He requested that an alternative identification procedure be used, namely, that any identification be made from a group of individuals who possess similar physical characteristics.† The trial court denied the motion in limine, ruling that the traditional identification procedure would be used.† Thereafter, while the defendant was seated next to his attorney, Weibel identified him as one of the perpetrators.† The jury subsequently found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree.† On appeal, the defendant argued that the trial court violated his due process rights when it permitted Weibel to identify him in a manner that was unnecessarily suggestive.† The Appellate Court (150 Conn. App. 637) disagreed, stating that, pursuant to State v. Smith, 200 Conn. 465 (1986), an in-court identification must be excluded only when it is the product of an out-of-court identification procedure that was unnecessarily suggestive.† It added that there is no constitutional requirement that an in-court identification procedure be conducted in a manner that is free of suggestion.† It then determined that, because Weibel did not make an out-of-court identification of the defendant, there was no basis for excluding his in-court identification.† The Appellate Court also concluded that the trial court did not abuse its discretion when it denied the defendantís request for an alternative identification procedure.† It reasoned that the defendantís rights were adequately protected in that his attorney had the opportunity to cross-examine Weibel regarding the fact that, prior to the trial, he was unable to identify the defendant from a photographic array.† It also pointed out that defense counsel highlighted the suggestive nature of Weibelís in-court identification during closing argument and emphasized that there was other identification evidence in addition to Weibelís in-court identification, namely, the testimony of another participant in the robbery that the defendant was one of the perpetrators.† Based on the foregoing, the Appellate Court held that the trial court did not abuse its discretion in admitting Weibelís in-court identification of the defendant.† In this appeal, the Supreme Court will decide whether Weibelís in-court identification of the defendant was proper under Smith and, if so, whether Smith should be overturned.† The court may also consider whether any impropriety in the admission of the in-court identification was harmless in light of the other evidence the state presented at trial.