Opinion
No. CV97-0400369
July 20, 2006
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS COUNT THREE OF THE SIXTH AMENDED PETITION (#142)
The petitioner is currently in the custody of the respondent as the result of a sentence being imposed on November 8, 1996 in the judicial district of Hartford following his conviction of several felony crimes. The convictions were affirmed by the Appellate Court. State v. Watson, 50 Conn.App. 591 (1998).
The petitioner has filed a three-count sixth amended petition for a writ of habeas corpus. Counts one and two allege, respectively, ineffective assistance of trial counsel and appellate counsel. The third count alleges that the trial court violated the petitioner's state and federal constitutional rights to a fair trial by allowing police officers to testify that the petitioner was the person depicted in a bank surveillance videotape and a still photograph, both of which were in evidence. The petition claims that the identification of the petitioner as a perpetrator of the crimes was a major issue in this case, that the testimony of the police officers involved opinion evidence on an ultimate issue, and should not have been allowed. In support of this claim the third count refers to the case of State v. Finan, 275 Conn. 60 (2005). Before the court at this time is the respondent's motion to dismiss the third count. The motion alleges that Finan established a "new rule," and that for various reasons, the holding in Finan should not be applied retroactively to this habeas case.
In Finan the defendant was charged with bank robbery, and in evidence was a bank videotape which showed the two perpetrators actually committing the robbery of the bank. Four police officers were allowed to testify, over objections, that they had known the defendant for anywhere between eight and sixteen years, and that they suspected he was one of the perpetrators on the videotape based on his appearance, mannerisms and distinct walk. The Supreme Court held that "(O)n the facts of the present case, we conclude that the identification of the defendant as one of the perpetrators shown on the videotape was an ultimate issue in the case." Finan, supra, 192. The court found that the admission of the testimony was in violation of Section 7-3(a) of the Connecticut Code of Evidence which provides that "Testimony in the form of an opinion is inadmissable if it embraces an ultimate issue to be decided by the trier of fact . . ." The court found the error not harmless and reversed the conviction.
As the court noted in Finan, whether the evidence being offered is an opinion on an ultimate factual issue is to be determined on the facts of the case. This court has no facts before it in this case on which to base a ruling on the motion to dismiss. The court is of the opinion that Finan did not establish a "new rule." The court merely applied the facts of that case to the common-law rule, now Section 7-3(a), that barred the admission of an opinion on an ultimate issue. See State v. Spigarolo, 210 Conn. 353, 372 (1989). A determination as to whether the petitioner's constitutional rights were violated in this case by the trial court's admission of the two officers' testimony, from which no appeal was taken, will depend on the evidence which is produced on that issue.
The motion to dismiss is denied.