Opposition Brief — Connecticut v. Mitchell

Supreme Court brief1987

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Supreme Court, U.S.

E LL hb |

ocT 9 87 |

JOSEPH F. ROANIOL, JR.

No. 87-434

SEE RK

aeatinellinatia

In The

Supreme Court of the United States

October Term, 1987

)

STATE OF CONNECTICUT

Vs.

JEFFREY MITCHELL

STATE OF CONNECTICUT

Vs.

HOWARD TINNEY, JR.

O-

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CONNECTICUT

vy)

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

Mino J. ALTScHULER, Esquire

Attorney for the Respondent

ALTSCHULER, May & Stanek, P.C.

12 Bank Street, P.O. Box 903

Seymour, CT 06483

Juris Number: 101092

Telephone No: (205) 888-4144

Counsel of Record for the

Respondents

COCKLE a a a PRINTING CO., (800) 225-6964

llect (402) 342-2831

QUESTIONS PRESENTED

I. DID THE CONNECTICUT SUPREME COURT

ERR IN HOLDING THAT A ONE-ON-ONE SHOW-UP

AT A HOSPITAL WAS UNNECESSARILY AND IM-

PERMISSIBLY SUGGESTIVE WHEN THE FOUR-

THEEN-YEAR-OLD ALLEGED VICTIM WAS NOT CON-

FINED TO THE HOSPITAL AND IMMEDIATELY

AFTER THE SHOW-UP SHE WAS TAKEN BY THE

POLICE TO VIEW A MOTOR VEHICLE OPERATED

BY ONE OF THE SUSPECTS AND THEN TO THE

POLICE STATION TO GIVE A WRITTEN STATE-

MENT?

II. DID THE CONNECTICUT SUPREME COURT

ERR IN UPHOLDING THE TRIAL COURT’S FACT-

BASED DECISION THAT THERE WERE NOT SUF-

FICIENT INDICIA OF RELIABILITY IN THE IDEN-

TIFICATION BY THE ALLEGED VICTIM TO ALLOW

AN IN-COURT IDENTIFICATION OR ANY EVI-

DENCE OF THE IMPERMISSIBLE AND UNNECES-

SARY IDENTIFICATION PROCEDURE?

Page

QUESTIONS PRESENTED. Q..nknoicdcckn cee i

TADLE OF AUTHORITI£S 26 ill

COUNTERSTATEMENT OF THE CASE . 1

REASONS FOR DENYING THE PETITION _W. 1

I. THE DECISION BELOW IS CONSISTENT

WITH THE DECISIONS OF THIS COURT _. 1

A. The Hospital Show-Up Was Unnecessarily

Suggestive Based Upon The Particular Facts

Of This Case And The Applicable Decisions

Of This Uoart .W.. ee 1

B. The Reliability Decision Of The Lower Courts

Was Based Upon The Particular Facets Of

This Case And The Applicable Decisions Of

teas Court 2 eee 3

Il. THERE IS NO SPECIAL AND IMPORTANT

REASON FOR GRANTING THIS WRIT AS

THE CONSTITUTIONAL ISSUES HAVE

BEEN DECIDED BY THIS COURT AND THE

SPECIFIC ISSUES IN THIS CASE ARE

BASED UPON THE FACTS OF THIS PARTIC-

ULAR CASS... 222 eee 4

CONCLAIBION ...........c.c. ee <a RO srt er es 5

TABLE OF CONTENTS

ill

)

TABLE OF AUTHORITIES

Page

Manson v. Brathwaite, 482 U.S. 116 (1977) 2

Stovall v. Denno, 388 U.S. 293 (1967) ............. uae 2

State v. Guertin, 190 Conn. 440 (1983) .. ._ «

COUNTERSTATEMENT OF THE CASE

The trial court, at pretrial hearings, granted a mo-

tion by the defendants to disallow any in-court identifi-

cation of the defendants by the fourteen-year-old alleged

victim of a sexual assault. The Appellate Court of the

State of Connecticut reversed the trial court on this is-

sue as well as on several other motions filed by the de-

fendant which the trial court had granted. The Connect-

icut Supreme Court reversed the Appellate Court on the

identification issue and upheld the Appellate Court on all

other isses.

The factual background of this case is fairly well set

out by the State in its petition at pages four through seven

of said petition. Said facts are also set out in greater

detail in the opinion of the Connecticut Supreme Court

(pages 3A-6A of the appendix to the State’s petition).

REASONS FOR DENYING THE PETITION

FOR A WRIT OF CERTIORARI

I. THE DECISION BELOW IS CONSISTENT

WITH THE DECISIONS OF THIS COURT.

A. The hospital show-up was unnecessarily sug-

gestive based upon the particular facts of this

case and the applicable decisions of this court.

Rule 17.1 of the Supreme Court rules sets out the

reasons for which a review on a writ of certiorari will be

granted. It requires that there be ‘‘special and important

reasons’’ therefore, including where a state court of last

resort has decided a case ‘‘in conflict with the applicable

deeisions of this Court.

The respondents respectfully submit that the decision

by the Connecticut Supreme Court in this case is not in

conflict with the applicable decisions of this court.

The petitioner seems to claim that this decision is

in conflict with Manson v. Brathwaite, 422 U.S. 116 (1977

and its progeny. However, the Connecticut Supreme Court

is quite clear in stating its reasons for holding that the

hospital identification procedure was unnecessary and

impermissible. The decision discussed Brathwaite, Stovall

v. Denno, 388 U.S. 293 (1967) and the many Connecticut

decisions subsequent to the aforementioned cases. The

Connecticut Supreme Court stated at page 202 of its de-

cision (page 16A of the appendix to the petitioner’s writ)

that the show-up was unnecessary because an alleged vic-

tim was transported by the police immediately thereafter

to view a vehicle operated by one of the suspeets and then

was taken to the police station to give a statement.

The decision was not limited to, nor based upon, the

finding that the fourteen vear old was seriously injured

or in immediate danger of death. The more important

fact was that she was not required to stay in the hospital

and was taken by the police for further investigation im-

mediately after the show-up. The Connecticut Supreme

Court econeluded that a less-suggestive procedure could

easily have been followed in view of these facts.

Since there is no dispute that the show up was im-

permissibly suggestive, the only issue before this court

is whether or not it is unnecessary. The decision of the

Connecticut Supreme Court is not in conflict with any

decision of this Court in its conclusion that the show-up

was unnecessary. The lower court decision was based

upon the faets of this particular case in accordance with

the many decisions of the Connecticut Supreme Court and

the app!icable decisions of this Court.

B. The reliability decision of the lower courts

was based upon the particular facts of this

case and the applicable decisions of this court.

Just as the finding that the show-up was unnecessary

was fact-based, the decision on the liability of the identi-

fication was also based upon the particular facts of this

case. The Connecticut Supreme Court specifically referred

to the trial court’s ruling on the reliability issue and held

that there was no reason to hold that the trial court’s find-

ing was erroneous. The State never asked for an articula-

tion by the trial court on its reliability findings and those

findings were not inconsistent with the areas of inquiry

required by the multitude of State cases on this issue, all

of which are consistent with those set out by the petitioner

at page 19 of its brief. The requirements cited by the pe-

titioner are exactly those required by the Connecticut

Supreme Court in State v. Guertin, 190 Conn. 440 (1983).

The decision of the lower court is totally consistent

with the applicable decisions of this Court and is based

upon the particular facts of this case. There are no Con-

stitutional rules at issue as far as reliability is concerned.

The issue is strictly based upon fact in accordance with

the decisions of this court.

Contrary to the opinion of the petitioner, neither the

Connecticut Supreme Court nor the trial eourt ignored the

factors enumerated at page 19 of the petition. The State

just cannot accept the fact that both the trial court and

the Supreme Court did not consider the evidence on re-

liability undisputed. As a metter of fact, the trial court

considered the evidence presented by the State to be to-

tally unreliable and the Connecticut Supreme Court found

no reason to disagree with this conclusion. It is obvious

from the mere fact that the reliability of the identifica-

tions was contested that the evidence was disputed.

II. THERE IS NO SPECIAL AND IMPORTANT

REASON FOR GRANTING THIS WRIT AS

THE CONSTITUTIONAL ISSUES HAVE BEEN

DECIDED BY THIS COURT AND THE SPE-

CIFIC ISSUES IN THIS CASE ARE BASED

UPON THE FACTS OF THIS PARTICULAR

CASE.

The petitioner is upset that its version of the facts

was not accepted by the trial court or the Connecticut Su-

preme Court. It states at page 22 of its petition that ‘the

result in the State courts in intolerable .. .’’ and that

it ‘*. .. make(s) one wonder whether we in fact live in a

civilized society.’’ The State in making this argument for-

gets the most basie Constitutional right of any citizen of

this country, the right to be presumed innocent.

The trial court heard several days of testimony on

the various motion before it. After the hearings were

completed, the trial) judge was not even convinced that a

crime iad been committed. The alleged victim admitted

that she lied to the police and told a story that was in-

credibly detailed sexually, although admittedly totally

false. The trial court also concluded that the police of-

ficers gave information to the alleged victim after the

suspects were arrested to make her second story more

consistent with the arrest of the suspects.

As the petitioner states, there has been a tremendous

injustice here, and that injustice has been committed upon

the respondents. If the State is truly interested in cor-

recting intolerable results and wondering what is happen-

ing to a civilized society, then the place to look for said

corrections is at itself since it is the State that is acting

uncivilized and intolerably in this matter.

There are no special issues here, Constitutional or

otherwise, that have a national impact. The Connecticut

Supreme Court merely applied the facts it had before it

and those found by the trial court to the decisions of this

Court and the Connecticut Supreme Court.

CONCLUSION

The trial court and Connecticut Supreme Court deci-

sions on the issues upon which the State is seeking cer-

tiorari are not inconsistent with any decisions of this

court. The decision of the Connecticut Supreme Court

applies the facts as found by the trial court to the law

as set forth by this court and the Connecticut Supreme

Court. Although legal considerations requested by the

petitioner were followed by the lower courts. Just becanse

the petitioner disagrees with the factual conclusions of

the lower courts does not mean that those courts followed

improper law. The petitioner’s real disagreement is with

the faets, not the law applied to said facts. That is not

sufficient reason to compel review by this court. For the

aforementioned reasons, the respondents respectfully sub-

mit that the petition for a writ of certiorari be denied.

Respectfully submitted,

Howarp Tinney &

JEFFREY MIrcHELL

By: /s/ Mito J. Avrscuunsr, Esquire

Mito J. ArrscHucer, Esquire

Attorneys for the Respondent