# Opposition Brief — Connecticut v. Mitchell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0909%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 927

## Text

Supreme Court, U.S.
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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

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BRIEF IN OPPOSITION TO PETITION FOR
A WRIT OF CERTIORARI TO THE
SUPREME COURT OF CONNECTICUT

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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

ii

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).

ty
Uv

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.

bo

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

3

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
ALTSCHULER, May & Stanek, P.C.
12 Bank Street, P.O. Box 903
Seymour, CT 06483
Juris Number: 101092

od Telephone No: (203) 888-4144
Counsel of Record for the

Respondents

:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0909%3A2. Public record. Not legal advice.