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State v. Dickson

Supreme Court of Connecticut

August 9, 2016

STATE OF CONNECTICUT
v.
ANDREW DICKSON

          Argued December 11, 2015

          Andrew S. Liskov, for the appellant (defendant).

          Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).

          Charles D. Ray, James L. Brochin, Marques S. Tracy and Laura E. Sedlak filed a brief for The Innocence Project as amicus curiae.

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ROGERS, C. J.

         The issue that we must resolve in this certified appeal is whether we should overrule this court's holding in State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986), [1] and hold that inherently suggestive in-court identifications are inadmissible even in the absence of a suggestive pretrial identification procedure. The defendant, Andrew Dickson, was charged with a variety of offenses after he shot the victim, Albert Weibel, during an attempted robbery. Before trial, the defendant filed a motion to preclude Weibel from making an in-court identification of the defendant on the ground that in-court identification procedures are unnecessarily suggestive. In the alternative, the defendant requested that the trial court require that Weibel select him from a group of individuals of similar appearance. The trial court denied the motion pursuant to Smith, and Weibel identified the defendant as his assailant in court. The jury found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree, and the trial court rendered judgment accordingly.

         Thereafter, the defendant appealed to the Appellate Court claiming, among other things, that the trial court had abused its discretion by denying his motion to preclude Weibel's in-court identification of him or, in the alternative, to order an alternative identification procedure. The Appellate Court rejected the defendant's claim pursuant to Smith; State v. Dickson, 150 Conn.App. 637, 644-47, 91 A.3d 958 (2014); and, having also rejected the defendant's other claims on appeal, affirmed the judgment of conviction. Id., 654.

         We then granted the defendant's petition for certification to appeal, limited to the following issues: (1) "Did the Appellate Court properly determine that the in-court identification procedure used at trial was proper under this court's decision in State v. Smith, [supra, 200 Conn. 465], and, if so, should the Smith precedent be overturned?"; and (2) "If we conclude that the in-court identification was improper, was the impropriety harmless in light of the other state's evidence?" State v. Dickson, 314 Conn. 913, 100 A.3d 404 (2014). We conclude that, contrary to our holding in Smith, in cases in which identity is an issue, in-court identifications that are not preceded by a successful identification in a nonsuggestive identification procedure[2] implicate due process principles and, therefore, must be prescreened by the trial court.[3] We also conclude that the admission of the in-court identification here was harmless and, accordingly, affirm the judgment of the Appellate Court on this alternative ground.

         The record reveals the following facts that the jury reasonably could have found and procedural history. Akeem Lyles arranged to meet Weibel and Matthew Shaw at Terrace Circle in Bridgeport on the night of January 9, 2010, for the purpose of selling them an all-terrain vehicle. Shortly before the arranged meeting time, Lyles met with Jovanni Reyes and the defendant in a nearby apartment, explained that he planned to rob Weibel and Shaw and asked Reyes and the defendant if they would help him. Reyes and the defendant agreed. The three men left the apartment armed with guns at approximately 9:30 p.m. At that point, Weibel, who was in a pickup truck with Shaw at the arranged meeting place, called Lyles. Lyles told Weibel that he was outside in back of the building with the all-terrain vehicle and that Weibel should come and "check it out." As Weibel approached Lyles, Lyles put a gun to Weibel's head and demanded money. Weibel then turned around and saw Reyes and the defendant with guns. They also demanded money. As Weibel covered his head, called for help and attempted to return to the pickup truck, the men hit him, demanded money and took his cell phone.

         Lyles then broke from the group and approached the pickup truck. He tapped on the window with his gun and pointed the gun at Shaw's head. Shaw got out of the pickup truck and Lyles grabbed him, threw him against a parked car and demanded "the money." When Shaw told Lyles that he did not have the money, Lyles took Shaw's cell phone and wallet. Lyles also took between $40 and $50, an iPod and a global positioning system from the pickup truck. Someone then yelled "this is taking too long" and Lyles and Reyes ran from the scene. At that point, the defendant held a gun to Weibel's head, threw him against a dumpster near the pickup and said, "You're a dead man." The defendant then shot Weibel in the leg and neck. Weibel was seriously injured but survived. When Lyles later asked the defendant why he had shot Weibel, the defendant replied, "because we didn't get any money."

         Approximately one year after the shooting, Weibel viewed a police photographic array that included a photograph of the defendant, but he was unable to identify the defendant as his assailant. Both Weibel and Shaw, however, were able to identify Lyles from a photographic array as the person who had first approached Weibel and who had approached Shaw while he was in the pickup truck.

         The defendant was arrested and charged with numerous offenses arising from the incident. Before trial, the defendant filed a motion in limine in which he contended that any in-court identification of the defendant by Weibel would be so highly and unnecessarily suggestive and conducive to an irreparable misidentification of the defendant as to violate the defendant's due process rights under article first, § 8, of the Connecticut constitution. In the alternative, the defendant, who is African-American, requested that the court order that Weibel be required to select him from a group of individuals of similar age, weight, height, complexion and hair style. The defendant orally renewed the motion in limine after the jury was selected and before the presentation of evidence. The trial court denied the motion.

         At trial, the prosecutor asked Weibel if he saw the person who had shot him in court. Weibel responded in the affirmative and identified the defendant, who was sitting next to counsel at the defense table. Except for a judicial marshal who was in uniform, the defendant was the only African-American male in the courtroom. The jury found the defendant guilty of assault in the first degree and conspiracy to commit robbery in the first degree, and the trial court rendered judgment accordingly.

         On appeal to the Appellate Court, the defendant claimed that the trial court had violated his due process rights under the fifth and fourteenth amendments to the federal constitution when it denied his motion in limine.[4] State v. Dickson, supra, 150 Conn.App. 642-43. The Appellate Court rejected this claim pursuant to State v. Smith, supra, 200 Conn. 469-70; State v. Dickson, supra, 644; and affirmed the judgment of conviction. State v. Dickson, supra, 654. This appeal followed.

         The defendant contends that the Appellate Court improperly concluded that Weibel's in-court identification of the defendant as his assailant was admissible under Smith.[5] In the alternative, he claims that this court should overrule Smith and hold that first time in-court identifications trigger due process protections because they are inherently suggestive and are the result of state action.[6] Finally, he claims that the state cannot prove that the improper admission of the in-court identification was harmless beyond a reasonable doubt.

         I

         DEFENDANT'S CLAIM THAT FIRST TIME IN-COURT IDENTIFICATIONS IMPLICATE DUE PROCESS PRINCIPLES

         To provide context for the defendant's claims, we begin our analysis with an overview of the legal principles governing the admission of eyewitness identification testimony. In the absence of unduly suggestive procedures conducted by state actors, the potential unreliability of eyewitness identification testimony ordinarily goes to the weight of the evidence, not its admissibility, and is a question for the jury. See Perry v. New Hampshire, U.S., 132 S.Ct. 716, 730, 181 L.Ed.2d 694 (2012) ("we hold that the [d]ue [p]rocess [c]lause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement"). Principles of due process require exclusion of unreliable identification evidence that is not the result of an unnecessarily suggestive procedure "[o]nly when [the] evidence is so extremely unfair that its admission violates fundamental conceptions of justice . . . ." (Citation omitted; internal quotation marks omitted.) Id., 723, citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (due process prohibits state's knowing use of false evidence because such use violates any concept of ordered liberty). To assist the jury in determining what weight to give to an eyewitness identification that is not tainted by an unduly suggestive identification procedure, the defendant is entitled as a matter of state evidentiary law to present expert testimony regarding a variety of factors that can affect the reliability of such testimony. State v. Guilbert, 306 Conn. 218, 248, 49 A.3d 705 (2012) ("[an] expert should be permitted to testify . . . about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue").

         A different standard applies when the defendant contends that an in-court identification followed an unduly suggestive pretrial identification procedure that was conducted by a state actor. In such cases, both the initial identification and the in-court identification may be excluded if the improper procedure created a substantial likelihood of misidentification. Perry v. New Hampshire, supra, 132 S.Ct. 724. "A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances ... is to deter law enforcement use of improper lineups, show-ups, and photo arrays in the first place." Id., 726.

         "In determmmg whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the totality of the circumstances." (Internal quotation marks omitted.) State v. Marquez, 291 Conn. 122, 141, 967 A.2d 56, cert, denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009).

         The first suggestiveness prong involves the circumstances of the identification procedure itself; id., 142-43; and the critical question is whether the procedure was conducted "in such a manner as to emphasize or highlight the individual whom the police believe is the suspect." Id., 143. If the trial court determines that there was no unduly suggestive identification procedure, that is the end of the analysis, and the identification evidence is admissible. State v. Outing, 298 Conn. 34, 54, 3 A.3d 1 (2010), cert, denied, 562 U.S. 1225, 131 S.Ct. 1479, 179 L.Ed.2d 316 (2011).

         If the court finds that there was an unduly suggestive procedure, the court goes on to address the second reliability prong, under which "the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [eyewitness] to view the criminal at the time of the crime, the [eyewitness'] degree of attention, the accuracy of [the eyewitness'] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification]." (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 553, 881 A.2d 290 (2005), cert, denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006), citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); see Mansonv. Brathwaite, supra, 114 (reliability factors include "the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation"); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (same).[7]"[A]n out-of-court eyewitness identification should be excluded on the basis of the procedure used to elicit that identification ... if the court is convinced that the procedure was so suggestive and otherwise unreliable as to give rise to a very substantial likelihood of irreparable misidentification." (Emphasis omitted.) State v. Marquez, supra, 291 Conn. 142.

         With this general background in mind, we now turn to the case law governing in-court identifications that are not preceded by an unnecessarily suggestive identification procedure, which is the case here. The United States Supreme Court has not yet addressed the question of whether first time in-court identifications are in the category of unnecessarily suggestive procedures that trigger due process protections.[8] See Galloway v. State, 122 So.3d 614, 663 (Miss. 2013) ("[t]he United States Supreme Court has not decided whether Biggers applies to an in-court identification not preceded by an impermissibly suggestive pretrial identification"), cert, denied, U.S., 134 S.Ct. 2661, 189 L.Ed.2d 209 (2014). This court, however, addressed the issue m. State v. Smith, supra, 200 Conn. 467. In that case, this court held that despite the inherent suggestiveness of an in-court identification procedure; id., 468-69 ("[a]ny one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it believes has committed the crime"); an in-court identification "need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification." Id., 469; see also State v. Nelson, 4 Conn.App. 514, 516, 495 A.2d 298 (1985) (where there had been no pretrial out-of-court identification procedure, there was no basis to suppress eyewitness' in-court identification because there would have been nothing to taint it). Thus, under Smith, first time in-court identifications are treated in the same way as identifications that are not tainted by an unnecessarily suggestive identification procedure conducted by a state actor.

         The defendant in the present case claims that first time in-court identifications are inherently suggestive and implicate a defendant's due process rights no less than unnecessarily suggestive out-of-court identifications. Accordingly, he contends, such identifications should be subject to prescreening by the court, just like other identifications that are the result of unduly suggestive identification procedures. This is a question of law over which our review is plenary. Commissioner of Environmental Protection v. Farricielli, 307 Conn. 787, 819, 59 A.3d 789 (2013) ("[w]hether [a party] was deprived of his due process rights is a question of law, to which we grant plenary review" [internal quotation marks omitted]).

         We agree with the defendant. First, and most importantly, we are hard-pressed to imagine how there could be a more suggestive identification procedure than placing a witness on the stand in open court, confronting the witness with the person who the state has accused of committing the crime, and then asking the witness if he can identify the person who committed the crime.[9] If this procedure is not suggestive, then no procedure is suggestive. Indeed, the present case starkly demonstrates the problem, in that Weibel was unable to identify the defendant in a photographic array, but had absolutely no difficulty doing so when the defendant was sitting next to defense counsel in court and was one of only two African-American males in the room. Second, because the extreme suggestiveness and unfairness of a one-one-one in-court confrontation is so obvious, we find it likely that a jury would naturally assume that the prosecutor would not be allowed to ask the witness to identify the defendant for the first time in court unless the prosecutor and the trial court had good reason to believe that the witness would be able to identify the defendant in a nonsuggestive setting. Indeed, such an assumption would be correct in the case of an in-court identification following an unnecessarily suggestive out-of-court identification procedure. Thus, a first time in-court identification procedure amounts to a form of improper vouching. See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) ("[v]ouching consists of placing the prestige of the government behind a witness through . . . suggesting that information not presented to the jury supports the [witness'] testimony"). Third, this court previously has recognized that mistaken eyewitness identifications are a significant cause of erroneous convictions; State v. Guilbert, supra, 306 Conn. 249-50 ("mistaken eyewitness identification testimony is by far the leading cause of wrongful convictions");[10] and the risk of mistake is particularly acute when the identification has been tainted by an unduly suggestive procedure. United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ("[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor-perhaps it is responsible for more such errors than all other factors combined" [internal quotation marks omitted]). Fourth, we cannot perceive why, if an in-court identification following an unduly suggestive pretrial police procedure implicates the defendant's due process rights because it is the result of state action, the same would not be true when a prosecutor elicits a first time in-court identification. Cf. State v. Warholic, 278 Conn. 354, 361, 897 A.2d 569 (2006) (prosecutor's conduct in court can constitute due process violation). Our research has revealed no case holding that this conduct does not constitute state action and, indeed, the state makes no such claim. Fifth, the rationale for the rule excluding identifications that are the result of unnecessarily suggestive procedures-deterrence of improper conduct by a state actor-applies equally to prosecutors.

         Accordingly, we conclude that first time in-court identifications, like in-court identifications that are tainted by an unduly suggestive out-of-court identification, implicate due process protections and must be prescreened by the trial court.[11] See United States v. Greene, 704 F.3d 298, 308 (4th Cir.) (applying Biggers constitutional analysis to in-court identification), cert, denied, U.S., 134 S.Ct. 419, 187 L.Ed.2d 279 (2013); United States v. Rogers, 126 F.3d 655, 658 (5th Cir. 1997) (same); United States v. Hill, 967 F.2d 226, 232 (6th Cir.) ("We hold that the Biggers [constitutional] analysis applies to . . . in-court identifications for the same reasons that the analysis applies to impermissibly suggestive [pretrial] identifications. The due process concerns are identical in both cases and any attempt to draw a line based on the time the allegedly suggestive identification technique takes place seems arbitrary. All of the concerns that underlie the Biggers analysis, including the degree of suggestiveness, the chance of mistake, and the threat to due process are no less applicable when the identification takes place for the first time at trial."), cert, denied, 506 U.S. 964, 113 S.Ct. 438, 121 L.Ed.2d 357 (1992); United States v. Rundell, 858 F.2d 425, 427 (8th Cir. 1988) (noting "suggestiveness inherent in the witnesses' knowing that [the defendant] was the sole [person] charged with the [crime]" and applying Biggers factors to in-court identification);[12]United States v. Archibald, 734 F.2d 938, 943 (witness' in-court identification suggestive when on cross-examination, witness stated he had "feeling he would be sitting next to" defense counsel, and applying Biggers factors), modified, 756 F.2d 223 (2d Cir. 1984); E. Mandery, "Due Process Considerations of In-Court Identifications, " 60 Alb. L. Rev. 389, 423 (1997) ("[t]here is no sound basis for this distinction" between in-court identifications and suggestive out-of-court identifications); see also Commonwealth v. Crayton, 470 Mass. 228, 241-42 andn.16, 21 N.E.3d 157 (2014) (concluding pursuant to "[c]ommon law principles of fairness" that first time in-court identifications are inadmissible except for "good reason, " as when identity is not at issue or eyewitness knew defendant before crime [internal quotation marks omitted]). Thus, we conclude that the holding of Smith must be limited to its facts, that is, to cases in which the in-court identification has been preceded by an admissible out-of-court identification.[13]We recognize that a number of courts have concluded otherwise.[14] Nevertheless, we conclude that this is an issue for which the arc of logic trumps the weight of authority. For all of the reasons that we have explained, we simply see no reason to distinguish inherently suggestive in-court identifications from inherently suggestive out-of-court identifications.

         II

         STATE'S ARGUMENTS IN SUPPORT OF CLAIM THAT FIRST TIME IN-COURT IDENTIFICATIONS ARE ADMISSIBLE

         The state raises numerous arguments in support of its claim to the contrary. We first address the state's claim that our conclusion is inconsistent with the United States Supreme Court's decision in Perry v. New Hampshire, supra, 132 S.Ct. 716. Specifically, the state contends that the court in Perry held that an identification that is the result of an unduly suggestive identification procedure is excludable only when the procedure has been conducted by "law enforcement actors involved in extrajudicial investigation, not prosecutors presenting evidence in court."[15] We disagree. The question of whether a first time in-court identification orchestrated by a prosecutor could trigger due process protections simply was not before the court in Perry. Rather, the issue was whether an identification that was the result of suggestive private conduct triggered due process protections. Perry v. New Hampshire, supra, 721. Accordingly, we do not believe that the court's repeated statements that due process protections are triggered only when unduly suggestive identification procedures are arranged by the police means that due process protections are not triggered when state actors other than the police conduct unfair identification procedures. Indeed, the court in Perry expressly stated that its prior decisions on this issue "turn on the presence of state action"; (emphasis added) id.; and, as we have indicated, the state in the present case does not dispute that a prosecutor's conduct in court constitutes state action. We further note that, since the court's decision in Perry, at least one court has assumed that a first time in-court identification triggers due process protections. See United States v. Greene, supra, 704 F.3d 308 (applying Biggers factors to in-court identification); see also United States v. Correa-Osorio, 784 F.3d 11, 19-20 (1st Cir. 2015) ("[o]ne could argue either way" whether Biggers analysis applies to in-court identifications after Perry); Galloway v. State, supra, 122 So.3d 663 (as of 2013, "[t]he United States Supreme Court has not decided whether Biggers applies to an in-court identification not preceded by an impermissibly suggestive pretrial identification"); but see United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir.) Q'Perry makes clear that, for those defendants who are identified under suggestive circumstances not arranged by police [including in-court identifications], the requirements of due process are satisfied in the ordinary protections of trial"), cert, denied, U.S., 134 S.Ct. 453, 187 L.Ed.2d 303 (2013). Moreover, we are not persuaded by the state's argument that, if a prosecutor's conduct in presenting evidence in court triggers due process protections, the court in Perry would have held that the admission of the witness' identification-or, indeed, any potentially unreliable evidence-could be excluded. When, as in Perry, a private party was responsible for the suggestiveness of the initial identification procedure, the rationale for the exclusionary rule-deterrence of improper conduct by a state actor-carries no force.

         The state also points out that the court in Perry specifically referred to in-court identifications when discussing suggestive procedures that do not trigger due process protections. Perry v. New Hampshire, supra, 132 S.Ct. 727 (The court rejected the defendant's claim that any identification resulting from a suggestive procedure must be prescreened by the court because "[m]ost eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do."). We agree that one-on-one in-court identifications do not always implicate the defendant's due process rights, as when identity is not an issue or when there has been a nonsuggestive out-of-court identification procedure. As we have indicated, however, the specific question that we are addressing here-whether the trial court is constitutionally required to prescreen first time in-court identifications-simply was not before the court in Perry. Accordingly, we cannot conclude that the passing, general reference by the court in Perry to the propriety of in-court identifications forecloses our conclusion that they can implicate due process concerns under certain circumstances.

         The state further claims that in-court identifications do not violate due process principles because they are necessary and, relatedly, because there is no feasible alternative to them. In support of this claim, the state relies on State v. Tatum, 219 Conn. 721, 725, 595 A.2d 322 (1991), in which the defendant contended that his in-court identification by an eyewitness at trial was tainted by the eyewitness' earlier in-court identification of him, for the first time, at a probable cause hearing.[16]

         This court disagreed with the defendant's claim, concluding that, "[i]n order to try the defendant, it was necessary for the prosecution to present evidence at the preliminary hearing to establish probable cause to believe that he had committed the crimes charged. Conn. Const., art. I, § 8, as amended [by articles seventeen and twenty-nine of the amendments];[17] General Statutes [Rev. to 1991] § 54-46a."[18] (Emphasis in original; footnote altered.) State v. Tatum, supra, 728-29. This court further stated that "[t]he fact that the prosecution might have taken extraordinary steps to lessen the suggestiveness of the confrontation [at the probable cause hearing] by using some other identification procedure does not render the routine procedure that was used unnecessary or impermissible. The defendant had no constitutional right to a lineup; State v. Vaughn, 199 Conn. 557, 562, 508 A.2d 430, cert, denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986); nor did the state have a constitutional duty to conduct one. State v. Vass, 191 Conn. 604, 611, 469 A.2d 767 (1983)." State v. Tatum, supra, 729. Finally, the court stated that, "[a]lthough the probable cause hearing held in this case was a one-to-one pretrial confrontation, it was unlike a showup or single photo[graphic] display in that it occurred in a courtroom. The initial identification made at the probable cause hearing, therefore, resembled an initial identification made at trial. While there is little doubt that the trial setting is suggestive, for the same reasons that a probable cause hearing is suggestive, '[t]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court.' State v. Smith, supra, [200 Conn.] 470." (Footnote omitted.) State v. Tatum, supra, 730-31.

         We conclude that the holding in Tatum that it was "necessary" for the state to present a first time in-court identification of the defendant at the probable cause hearing must be overruled. We simply can perceive no reason why the state cannot attempt to obtain an identification using a lineup or photographic array before asking an eyewitness to identify the defendant in court. Although the state is not constitutionally required to do so, it would be absurd to conclude that the state can simply decline to conduct a nonsuggestive procedure and then claim that its own conduct rendered a first time in-court identification necessary, thereby curing it of any constitutional infirmity. See United States v. Archibald, supra, 734 F.2d 941 ("[w]e may agree with the [trial] court that there was no obligation to stage a lineup, but there was ... an obligation to ensure that the in-court procedure . . . did not simply amount ... to a show-up" [internal quotation marks omitted]); see also United States v. Hill, supra, 967 F.2d 231 (same); United States v. Hill, supra, 232 (although government is not required to conduct lineup, it "is prohibited under the [d]ue [p]rocess [c]lause from introducing the fruits of an impermissibly suggestive and inherently unreliable identification as evidence against the accused")- To the extent that the state claims that first time in-court identifications are necessary in cases where the eyewitness had a fair opportunity to identify the defendant before trial but was unable to do so because, otherwise, the state will not be able to present an eyewitness identification to the jury, to state this claim is to refute it. The state is not entitled to conduct an unfair procedure merely because a fair procedure failed to produce the desired result. Moreover, if the state declines to conduct a nonsuggestive identification procedure before the in-court confrontation, or if it attempts to do so but the eyewitness is unable to identify the defendant, the state is not barred from presenting any evidence regarding the defendant's identity and guilt. The state still can question the eyewitness about his observations of the perpetrator at the time of the crime, including his observations of the perpetrator's height, weight, sex, race, age and any other characteristics that the eyewitness was able to observe, [19] and present any other evidence that is relevant.

         We also are not persuaded by the state's argument that first time in-court identifications are necessary because there is no feasible alternative. Specifically, the state contends that it would be entirely impractical to assemble a group of individuals who closely resemble the defendant and arrange for them to appear in court, that it would be dangerous to allow a defendant to sit among the spectators in court, and that there is no source of funds to pay individuals to participate in lineups. Although numerous courts have held that it is within the trial court's discretion to order a nonsuggestive in-court identification, [20] we are compelled to conclude that such a procedure is no longer viable in this state since the legislature's enactment of General Statutes § 54-lp, which governs the procedures for live lineups. Although that statute applies to identification procedures conducted by police, and the defendant makes no claim that it applies to in-court lineups, we believe that it would be inconsistent with the will of the legislature to allow a first time in-court identification that does not comport with the statutory procedures. We further conclude that it would be simply impracticable in a courtroom setting to present the lineup participants to the witness sequentially; see General Statutes § 54-lp (c) (1); and to give extensive instructions to the witness. See General Statutes § 54-lp (c) (3) (A) through (G). Nevertheless, we reject the state's claim that a traditional in-court identification is the only feasible option. Specifically, the state has not provided any convincing arguments as to why it would not be feasible to arrange for a nonsuggestive out-of-court lineup or photographic array, as is done routinely in cases where identity is at issue.[21] See United States v. Wade, supra, 388 U.S. 230 ("[l]ineups are prevalent in rape and robbery prosecutions")- Indeed, the state could conduct either of these procedures at any point up to the time of the witness' testimony.

         The state also claims that in-court identifications do not implicate the same concerns as unduly suggestive pretrial identification procedures because, when the identification is in court, jurors are present to observe the witness making the initial identification.[22] See United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (when initial identification is in court "[t]he jury can observe the witness during the identification process and is able to evaluate the reliability of the . . . identification"), cert, denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987); State v. Hickman, 355 Or. 715, 735, 330 P.3d 551 (2014) (when identification is made for first time in court, jury can observe "variables such as indications of witness certainty or hesitation during the identification process, including facial expression, voice inflection and body language"). These courts fail to recognize, however, that the very reason that first time in-court identifications are so problematic is that, when the state places the witness under the glare of scrutiny in the courtroom and informs the witness of the identity of the person who has been charged with committing the crime, it is far less likely that the witness will be hesitant or uncertain when asked if that person is the perpetrator. Moreover, cross-examination is unlikely to expose any witness uncertainty or weakness in the testimony "because cross-examination is far better at exposing lies than at countering sincere but mistaken beliefs." State v. Guilbert, supra, 306 Conn. 243; see also Commonwealth v. Collins, 470 Mass. 255, 264, 21 N.E.3d 528 (2014) ("cross-examination cannot always be expected to reveal an inaccurate in-court identification where most jurors are unaware of the weak correlation between confidence and accuracy and of witness susceptibility to manipulation by suggestive procedures or confirming feedback" [internal quotation marks omitted]). In any event, even if a first time in-court identification is less likely to lead to error than an identification resulting from an out-of-court suggestive procedure, first time in-court identifications still create a greater risk of error than nonsuggestive procedures. See Commonwealth v. Crayton, supra, 470 Mass. 239-40 ("even if we were persuaded that there were evaluative benefits arising from the jury's ability to see the identification procedure, it would not justify admission of an inherently suggestive identification").

         We next address the state's claim that there is no need for the trial court to prescreen in-court identifications because they "were a routine and expected part of trials at common law" and, up to the end of the nineteenth century, "were the principal means of identifying the perpetrator . . . because pretrial police investigations and identification procedures are late developments . . ., "[23] Again, we are not persuaded. First, it is beyond dispute that the fact that a criminal procedure has roots in tradition does not necessarily mean that it is constitutional. See, e.g., United States v. Wade, supra, 388 U.S. 236-37 (holding for first time that pretrial lineup is critical stage of prosecution at which defendant has right to aid of counsel under sixth amendment);[24] see also Stovall v. Denno, 388 U.S. 293, 299-300, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (prior to court's decision in Wade, "[t]he overwhelming majority of American courts [had] always treated the evidence question [arising from the absence of defense counsel during a pretrial lineup] not as one of admissibility but as one of credibility for the jury"); cf. United States v. Archibald, supra, 734 F.2d 942-43 ("[t]he in-court identification procedure utilized here was so clearly suggestive as to be impermissible, however traditional it may be" [emphasis added]). Second, it would appear that the reason that eyewitness identifications played a predominant role in early English and American history is that a large proportion of criminals who were brought into court had been caught in the act by private parties, not because first time in-court eyewitness testimony was deemed to be particularly reliable. See J. Langbein, "The Criminal Trial before the Lawyers, " 45 U. Chi. L. Rev. 263, 281 n.56 (1978) ("By today's standards a striking proportion of the Old Bailey [court of regular jurisdiction for serious crime in London in the sixteenth and seventeenth centuries] cases involved defendants caught in the act or taken with stolen goods. We can understand why identification evidence would predominate in an age before professional policing and well before the development of scientific techniques for generating and evaluating many of the types of circumstantial evidence now familiar to us [such as fingerprints]."). Third, first time in-court identifications became the norm at a time when travel was by foot or by horse, communications were by post, and official investigative resources were very limited. Consequently, it presumably would have been very burdensome both for the government and for eyewitnesses to arrange for a pretrial identification of the defendant. Because the difficulty of conducting a nonsuggestive identification procedure before trial is greatly reduced by the availability of instantaneous electronic communications, ready transportation and photography, the state's interest in continuing the tradition of first time in-court identifications is similarly reduced. See In re Tremaine C, 117 Conn.App. 521, 530, 980 A.2d 317 (due process analysis generally "requires balancing the government's interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures" [internal quotation marks omitted]), cert, denied, 294 Conn. 920, 984 A.2d 69 (2009).

         The state also disputes that mistaken eyewitness identifications are a significant source of erroneous convictions. As we have indicated, this court recently concluded otherwise. State v. Guilbert, supra, 306 Conn. 249-50 ("mistaken eyewitness identification testimony is by far the leading cause of wrongful convictions"). In addition, the legislature's enactment of § 54-lp, governing procedures for photographic arrays and live lineups, demonstrates that the legislature has concerns that suggestive procedures are a significant source of error. Even if the state were correct, however, that the emerging social science casts doubt on the earlier cases and studies that supported our statement in Guilbert, it is black letter law that an unnecessarily suggestive out-of-court identification triggers due process protections, and that will presumably continue to be the case until the courts are convinced that eyewitness identifications are so inherently reliable that suggestive procedures can have no significant effect on them.[25] We certainly are not prepared to make that determination in the present case and, as we have explained, if unnecessarily suggestive pretrial identification procedures trigger due process protections, we can perceive no reason why the same should not be true of unnecessarily suggestive in-court identifications.

         Finally, the state raises two claims that require little analysis. With respect to the state's claim that in-court identifications do not require prescreening because the sixth amendment's confrontation clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact"; (internal quotation marks omitted) State v. Arroyo, 284 Conn. 597, 622, 935 A.2d 975 (2007); it does not follow from this principle that the state has a right to conduct an unnecessarily suggestive identification during the guaranteed confrontation. The state further claims that a defendant has no right to absent himself from court to avoid being identified.[26] Again, however, it simply does not follow from the fact that the defendant cannot invoke his fifth amendment right against self-incrimination as a shield against a nonsuggestive in-court or out-of-court identification that the state has the right to conduct an unnecessarily suggestive in-court identification procedure. See E. Mandery, supra, 60 Alb. L. Rev. 414 (noting that courts have confused "the privilege against self-incrimination issue presented by in-court identifications and the due process question" and concluding that, "[w]hile a defendant's presence can be compelled for purposes of identification, it is a separate issue whether a defendant can be compelled to submit to a suggestive identification" [footnote omitted]).

         III

         PROCEDURES FOR PRESCREENING FIRST TIME IN-COURT IDENTIFICATIONS

         Having concluded that first time in-court identifications must be prescreened for admissibility by the trial court, we now set forth the specific procedures that the parties and the trial court must follow.[27] Preliminarily, we take this opportunity to emphasize that, in cases in which the identity of the perpetrator is at issue and there are eyewitnesses to the crime, the best practice is to conduct a nonsuggestive identification procedure as soon after the crime as is possible. See United States ex rel. Stovall v. Denno, 355 F.2d 731, 738 (2d Cir. 1966) ("interests of the accused and society alike demand that the opportunity to identify be afforded at the earliest possible moment when the likelihood of an accurate identification is greatest"), affd, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). It is our hope and expectation that this decision will provide an incentive for the state to conduct an out-of-court identification procedure before seeking an in-court identification, thereby obviating the need to resort to the procedures that we delineate herein.

         In cases in which there has been no pretrial identification, however, and the state intends to present a first time in-court identification, the state must first request permission to do so from the trial court. See Commonwealth v. Crayton, supra, 470 Mass. 243 ("[a]lthough we generally place the burden on the defendant to move to suppress an identification, that makes little sense where there is no out-of-court identification of the defendant by a witness and only the prosecutor knows whether he or she intends to elicit an in-court identification from the witness"). The trial court may grant such permission only if it determines that there is no factual dispute as to the identity of the perpetrator, or the ability of the particular eyewitness to identify the defendant is not at issue.[28] Id., 241 (holding under supervisory powers that, "[w]here an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an [impermissible] in-court showup, and shall admit it in evidence only where there is 'good reason' for its admission"); id., 242 (first time in-court identification may be allowed when eyewitness knew defendant before crime). For example, in cases in which the trial court determines that the only issue in dispute is whether the acts that the defendant admittedly performed constituted a crime, the court should permit a first time in-court identification. In cases in which the defendant concedes that identity or the ability of a particular witness to identify the defendant as the perpetrator is not in dispute, the state may satisfy the prescreenmg requirement by giving written or oral notice to that effect on the record.

         If the trial court determines that the state will not be allowed to conduct a first time identification in court, the state may request permission to conduct a nonsuggestive identification procedure, namely, at the state's option, an out-of-court lineup or photographic array, and the trial court ordinarily should grant the state's request.[29] If the witness previously has been unable to identify the defendant in a nonsuggestive identification procedure, however, the court should not allow a second nonsuggestive identification procedure unless the state can provide a good reason why a second bite at the apple is warranted.[30] If the eyewitness is able to identify the defendant in a nonsuggestive out-of-court procedure, the state may then ask the eyewitness to identify the defendant in court.[31]

         If the trial court denies a request for a nonsuggestive procedure, the state declines to conduct one, or the eyewitness is unable to identify the defendant in such a procedure, a one-on-one in-court identification should not be allowed. The prosecutor may still examine the witness, however, about his or her observations of the perpetrator at the time of the crime, but the prosecutor should avoid asking the witness if the defendant resembles the perpetrator. See United States v. Greene, supra, 704 F.3d 304 ("if there is a line between resemblance and identification testimony it is admittedly thin" [internal quotation marks omitted]).

         The state raises a number of objections to these procedures. First, the state contends that it is unclear what level of certainty at a prior nonsuggestive identification procedure would eliminate the need for prescreening of an in-court identification. We recognize that this question may require the exercise of judgment. We conclude however, that, as a general rule, if the state has conducted a nonsuggestive out-of-court identification procedure and the witness has identified the defendant, even with some uncertainty, the in-court identification need not be prescreened for admissibility and the witness' level of uncertainty at the initial procedure should go to the weight of the evidence.[32] If the level of certainty was so low that it amounted to a failure to identify the defendant, the in-court identification should be prescreened and ordinarily disallowed.

         Second, the state contends that it is unclear what the consequence would be if a witness who is going to identify the defendant in court during trial had learned that the defendant had been charged with the crime by attending pretrial proceedings and observing the defendant. If the state was not responsible for the pretrial confrontation, this situation is analogous to any other situation in which a witness has learned the identity of the person who has been charged with the crime under suggestive circumstances that are not the result of state action. Such circumstances go to the weight of the identification testimony, not its admissibility. See Perry v. New Hampshire, supra, 132 S.Ct. 728. If the state was responsible for the suggestive pretrial confrontation, however, it must be treated in the same manner as a suggestive identification procedure, and the trial court must determine under the totality of the circumstances whether the witness would have been able to identify the defendant in court even without the prior suggestive confrontation. Cf. State v. Ledbetter, supra, 275 Conn. 553. If the answer to that question is yes, the court should allow the in-court identification, subject to cross-examination and argument. If the answer is no, an in-court identification should be precluded, just as an in-court identification that was irreparably tainted by an unnecessarily suggestive identification procedure would be.

         Third, the state contends that, if the trial court precludes the state from obtaining a first time in-court identification, fairness requires that the trial court give a jury instruction explaining that the identification was not permitted. We conclude that, if the state requests such an instruction, the trial court may provide the jury with an accurate statement of the law, specifically, that an in-court identification was not permitted because inherently suggestive first time in-court identifications create a significant risk of misidentification and because either the state declined to pursue other, less suggestive means of obtaining the identification or the eyewitness was unable to provide one. The state is not entitled to an instruction that would suggest to the jury that the eyewitness could have made a reliable identification of the defendant in court if the state had been permitted to request the witness to do so.

         Finally, the state contends that, if we preclude first time in-court identifications pursuant to our supervisory powers, the new rule must be prospective only. We have concluded, however, that first time in-court identifications implicate constitutional due process rights. It is well established that "new [constitutional] rules of criminal procedure must be applied in future trials and in cases pending on direct review . . . ." Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008); see also Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review."); Griffith v. Kentucky, supra, 328 ("a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break with the past" [internal quotation marks omitted]).[33] Accordingly, the new rule that we adopt today applies to the parties to the present case and to all pending cases.[34] It is important to point out, however, that, in pending appeals involving this issue, the suggestive in-court identification has already occurred. Accordingly, if the reviewing court concludes that the admission of the identification was harmful, the only remedy that can be provided is a remand to the trial court for the purpose of evaluating the reliability and the admissibility of the in-court identification under the totality of the circumstances.[35] Cf. United States v. Wade, supra, 388 U.S. 242 (when in-court identification is preceded by out-of-court identification without aid of counsel, proper procedure on review is to vacate conviction and to remand to trial court for hearing to determine whether in-court identification was independently reliable); see also State v. Ledbetter, supra, 275 Conn. 553 ("corruptive effect of suggestive procedure [regarding eyewitness identification] is weighed against certain factors"). If the trial court concludes that the identification was sufficiently reliable, the trial court may reinstate the conviction, and no new trial would be required.

         IV

         APPLICATION OF NEW PROCEDURES TO PRESENT CASE

         We now apply the foregoing principles to the present case. Because Weibel's in-court identification of the defendant was preceded by an unsuccessful attempt to identify the defendant in a photographic array, it was a first time in-court identification. In addition, the identity of the person who assaulted Weibel was in dispute and the defendant was not known to Weibel before the assault. Accordingly, we conclude that the identification testimony should have been prescreened and the state should have been required either to conduct a nonsuggestive identification procedure-in the event that the trial court concluded that the state was entitled to such a procedure even though Weibel had failed to identify the defendant in the photographic array-or to refrain from seeking an in-court identification. We further conclude that the failure to follow these procedures potentially violated the defendant's due process rights.[36]

         V

         HARMLESS ERROR ANALYSIS

         Even if we were to assume that Weibel's in-court identification of the defendant was improperly admitted, however, we conclude that any due process violation was harmless beyond a reasonable doubt. See State v. Artis, 314 Conn. 131, 154, 101 A.3d 915 (2014) ("because of the constitutional magnitude of the error, the burden falls on the state to prove that the admission of the tainted identification was harmless beyond a reasonable doubt"). A constitutional error is harmless when it is "clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible [evidence] . . . ." (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 718, 759 A.2d 995 (2000). "That determination must be made in light of the entire record [including the strength of the state's case without the evidence admitted in error]." (Internal quotation marks omitted.) Id.

         The following facts and procedural history, some of which we have already discussed, are relevant to our analysis. Lyles testified at trial that, before the robbery at issue in the present case, he had engaged in similar robberies with the help of a friend whom he knew only as "Black." On the evening of January 9, 2010, at about 8 p.m., he was at the apartment of a friend, Stephanie Perez, at 455 Trumbull Avenue in Bridgeport. Reyes was also at the apartment. At approximately 9 p.m., the defendant and the defendant's sister arrived. Lyles had known the defendant his entire life because their mothers were close friends. At some point, Lyles left the apartment and the defendant and Reyes followed him. Lyles told the men that he was planning a robbery and they indicated that they wanted to participate. Lyles was armed with a .40 caliber Smith and Wesson handgun, the defendant carried a .38 caliber revolver, and Reyes carried a paintball gun that looked like an assault rifle. Lyles had supplied the weapons. After leaving the apartment, the three men proceeded to Terrace Circle in Bridgeport, where the events previously described in this opinion occurred. As Lyles and Reyes were leaving the scene after the robbery, the defendant was holding his gun to Weibel's head. Lyles then heard two gunshots. He and Reyes returned to the parking lot behind the apartment building at 455 Trumbull Avenue and got into a Cadillac owned by Perez. Approximately two minutes later, the defendant joined them. They then drove to the residence of Lyles' friend "L" on Louis Street in the south end of Bridgeport. At that point, Lyles asked the defendant about the shooting and the defendant stated that he had shot Weibel in the head and leg "because we didn't get any money." Both Weibel and Shaw were able to identify Lyles and their testimony at trial corroborated Lyles' testimony concerning the events at Terrace Circle, specifically, that Lyles was not the shooter.

         Lyles further testified at trial that he was currently incarcerated and that, as a result of the incident on the night of January 9, 2010, he had been charged with accessory to assault in the first degree, robbery in the first degree, larceny in the fifth degree, violation of probation, attempted murder and conspiracy to commit robbery. He had negotiated a tentative plea agreement with the state, which had not yet been signed, pursuant to which he would be sentenced to fifteen years imprisonment, suspended sometime between three and seven years, with five years probation. He had also signed an agreement to cooperate with the state in its investigation of the present case. Pursuant to that agreement, if Lyles testified untruthfully at trial, he would serve the maximum sentence.

         On cross-examination, defense counsel asked Lyles how he could be sentenced to the maximum sentence of approximately forty years imprisonment if he testified untruthfully when he had not yet pleaded guilty to the charges. Lyles acknowledged that the maximum sentence was not reflected in his agreement to testify. He also acknowledged that the police were investigating the three robberies that he had committed with "Black" and that he would not be charged in any of those cases. Lyles denied that "Black" was his cousin, Rasheem Davis, who was the only other person who had access to the e-mail account that Lyles had used to lure his robbery victims. Lyles admitted that he had been arrested in December, 2009, after he helped Perez steal items from a department store where he was employed, and that he had not been charged with another theft from that store. He further admitted that he had lied repeatedly to the police during their investigation of the present case.[37] On redirect examination, Lyles testified that he had lied to the police before he entered into the agreement to cooperate with the state requiring him to speak truthfully.

         The defendant presented alibi evidence in the form of testimony by his mother and his aunt that he had been with his family at a sports bar in Bridgeport watching a playoff game between the Philadelphia Eagles and the Dallas Cowboys on the evening of January 9, 2010. The defendant's mother testified that kickoff was at approximately 8:30 or 9 p.m., but she did not testify as to whether the defendant was in the bar at that time.[38]The defendant's aunt testified that the defendant arrived at the bar before kickoff, but she could not remember the precise time.[39] The defendant left the bar with his mother when the game ended at approximately 11:30 p.m. The defendant's mother remembered the evening very clearly because she was an ardent Eagles fan and her husband was an ardent Cowboys fan. When the Cowboys defeated the Eagles in that football game, the defendant's mother and father had an intense argument. The defendant's aunt specifically recalled that the defendant left the bar with his mother because he stated that he was going to have to act as a referee when they got home.

         As we have indicated previously, Weibel acknowledged at trial that he had been unable to identify the defendant from a photographic array approximately one year after the shooting. During closing argument, the prosecutor argued that Weibel's in-court identification of the defendant was nevertheless credible because "[l]ooking at photographs is very different from looking at people. We look different from photographs." The prosecutor also stated, "What kind of an impression did those moments of being hit with the gun and being shot make on [Weibel]? What burned into his mind- what image burned into his mind at that point, but the face of the person who shot him." Defense counsel argued that, to the contrary, the in-court identification was unreliable because Weibel had been unable to identify the defendant in the photographic array, the crime scene was dark, and the identification was not corroborated by other evidence. Defense counsel further contended that, because the defendant was the only black male sitting in the courtroom other than the uniformed marshal, and because the defendant was sitting at the table with defense counsel, the in-court identification "[was] practically a neon light pointed to the [defendant] . . . ." The trial court gave a lengthy instruction on eyewitness identification testimony in which it stated that certainty did not correlate to accuracy and that, in determining what weight to give to Weibel's identification, the jury could consider the suggestiveness of the identification procedure, the fact that the eyewitness had failed to identify the defendant in a photographic array, and the fact that a lineup procedure is generally more reliable than a one-on-one showup.[40]

         We conclude on the basis of this record that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict even without Weibel's in-court identification of the defendant. First, although the defendant presented evidence that Lyles had lied to the police in the past, there is no evidence that Lyles made any material misrepresentations or misstatements during his testimony at trial. Second, although Lyles clearly had a motive to cooperate with the state, the record does not reveal any motive for Lyles to have falsely identified the defendant as Weibel's assailant.[41]Both Weibel and Shaw testified unequivocally that Lyles was not the person who had shot Weibel, and Lyles did not deny his involvement in the crime. Thus, Lyles clearly was not attempting to shift blame from himself to the defendant. In addition, the undisputed evidence shows that Lyles had known the defendant his entire life and had been on friendly terms with him. Thus, there is no evidence that Lyles had a motive to harm the defendant. Third, Lyles' testimony regarding the events on the night in question was corroborated in all material respects by Weibel and Shaw. Fourth, neither of the alibi witnesses testified unequivocally that the defendant had been in the sports bar with his family at 9:30 p.m. on January 9, 2010, when the crime occurred. See footnotes 38 and 39 of this opinion. Moreover, to the extent that the testimony of the defendant's mother and aunt would support that conclusion, both witnesses had a clear motive to attempt to convince the jury that the defendant was in the bar at that time. Finally, the weaknesses in Weibel's identification testimony were highlighted both by the defendant during closing argument and by the trial court in its jury instructions. Accordingly, we conclude that the improper admission of Weibel's first time in-court identification was harmless. We therefore affirm the judgment of the Appellate Court upholding the defendant's conviction on this alternative ground.

         The judgment of the Appellate Court is affirmed.

          In this opinion PALMER, EVELEIGH and McDON-ALD, Js., concurred.

          ZARELLA, J., with whom ESPINOSA, J., joins, concurring in the judgment.

         Distilled to its essence, the question the court must answer in the present case is whether first time in-court identifications violate the rights guaranteed to criminal defendants under the due process clauses of the fifth and fourteenth amendments to the United States constitution. In addressing this question, I am mindful of the fact that the constitution does not require the "best practice" or a perfect trial. United States v. Kahn, 415 U.S. 143, 155 n.15, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (in fourth amendment context, police officers need not follow best practice in order for search to pass constitutional muster); Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ("[a] defendant is entitled to a fair trial but not a perfect one" [internal quotation marks omitted]); see also State v. Marquez, 291 Conn. 122, 145, 697 A.2d 56 (test for determining whether identification procedure is unnecessarily suggestive "is not a best practices test" [emphasis omitted; internal quotation marks omitted]), cert, denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009). Thus, my objective is not to determine which of the many alternative identification procedures is the "best" or is likely to result in the most reliable identification. Instead, I must consider only whether first time in-court identifications are constitutionally permissible.

         In the present case, the majority crafts what it describes as a "prophylactic constitutional [rule]" requiring the prescreening of first time in-court identifications.[1] Footnote 11 of the majority opinion. The majority's rule prohibits a first time in-court identification that is not preceded by a nonsuggestive out-of-court identification in which the eyewitness identified the defendant, unless the defendant's identity or the witness' ability to identify the defendant is not at issue in the case.[2] It may well be that such prescreening would be a better practice than a first time in-court identification. Indeed, I encourage law enforcement personnel to secure an out-of-court identification, through a procedure consistent with General Statutes § 54-1p, at the earliest reasonable time following the commission of a crime. My concern in the present case, however, is not what the ideal identification procedure is but whether first time in-court identifications pass constitutional scrutiny. After a review of the relevant federal authority, I conclude that they do, as long as the defendant is afforded the traditional protections of our adversary system, such as confrontation, the attendant right to cross-examine state witnesses, closing argument, jury instructions, the presumption of innocence, and the government's burden to prove guilt beyond a reasonable doubt. See Perry v. New Hampshire, U.S., 132 S.Ct. 716, 728-29, 181 L.Ed.2d 694 (2012) (discussing "safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability"). For this reason, I do not join the majority opinion.[3] Because the majority ultimately concludes that the admission of the in-court identification in the present case was harmless beyond a reasonable doubt and affirms the judgment of conviction, I concur in the judgment.

         The defendant in the present case, Andrew Dickson, claims that the trial court violated his due process rights, under the fifth and fourteenth amendments to the United States constitution, by allowing an eyewitness, Albert Weibel, to make an mherently suggestive first time in-court identification. He further argues that the trial court abused its discretion by not excluding the identification or by not permitting a less suggestive in-court identification procedure. In addition, the defendant claims that the Appellate Court incorrectly concluded that the trial court's actions were permitted by State v. Smith,200 Conn. 465, 512 A.2d 189 (1986). In the ...


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