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State v. Day

Court of Appeals of Connecticut

March 28, 2017


          Argued September 12, 2016

         Appeal from Superior Court, judicial district of Waterbury, Crawford, J.

          James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Don E. Therkildsen, Jr., senior assistant state's attorney, for the appellee (state).

          Sheldon, Keller and Foti, Js.


          SHELDON, J.

         The defendant, Robert Day, appeals from the judgment of conviction that was rendered against him after a bifurcated trial in the judicial district of Waterbury upon the verdict of a jury finding him guilty of assault of an elderly person in the first degree in violation of General Statutes § 53a-59a (a) (1), and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), and the separate decision of the trial court finding him guilty of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant's principal claims on appeal concern the state's use against him in that trial of eyewitness identification testimony from the two victims of the charged offenses, both of whom identified him as the perpetrator.

         The defendant first claims that the court violated his state and federal constitutional rights not to be deprived of his liberty without due process of law by denying his pretrial motions to suppress the victims' out-of-court and in-court identifications of him as the perpetrator of the charged offenses. He argues that the challenged identifications should have been suppressed as the unreliable products of unnecessarily suggestive pretrial identification procedures which were used by the state to obtain and reinforce those identifications. Although we agree with the defendant that the procedures by which the state obtained and later bolstered the victims' confidence in their challenged identifications were unnecessarily suggestive, we conclude that such identifications were not rendered so unreliable by those suggestive procedures as to make them constitutionally inadmissible at trial. We therefore conclude that the court did not err by denying the defendant's pretrial motions to suppress such identifications.

         The defendant also claims, however, that even if the challenged identifications were properly admitted against him at trial, the court committed two other errors that materially affected the jury's ability to make a proper assessment of the reliability of such identifications when conducting its deliberations. First, he claims that the court erred by precluding expert testimony from Dr. Steven Penrod, a qualified expert witness on the subject of eyewitness identification, as to certain aspects of the photographic identification procedures that were used to obtain the victims' identifications of the defendant in this case that are well known by scientific researchers to decrease the reliability of eyewitness identifications resulting from their use. Second, he claims that the court erred by failing to instruct the jury, in accordance with his timely request to charge, that it could properly consider those reliability factors and several others about which Penrod did testify before the jury as scientifically valid bases for questioning the reliability of the victims' identification testimony in this case. Although we agree with the defendant that the court erred in precluding his expert from testifying as to the tendency of certain aspects of the identification procedures used in this case to produce unreliable eyewitness identifications, we cannot conclude that the limited preclusion of such testimony substantially affected the jury's verdict. We reject the defendant's claim that the court erred by failing to instruct the jury on the subject of eyewitness identifications in accordance with his request to charge. Accordingly, we affirm the judgment of the trial court.[1]

         The following facts and procedural history are relevant to the defendant's claims on appeal. At approximately 2 p.m. on August 22, 2012, as sixty-three year old Frank Pereira and his sixty year old wife, Gisele Pereira, were standing behind the counter of Pereira's Package Store, which they owned and operated in Waterbury, they saw an African-American man coming from the direction of the store's side parking lot walk past the store's front window to its front door. The man initially caught their attention because, although it was a hot and sunny summer day with the temperature in the 80s, he was wearing a hoodie with the hood pulled up over his head. When the man reached the front door, he opened it, entered the store, and walked directly to the counter behind which the Pereiras were standing. As he did so, walking a distance of no more than six feet, the Pereiras both asked him how they could help him, but he did not answer. Instead, he strode silently to the counter and, upon reaching it, started to walk around it toward the Pereiras. As that began to happen, Frank Pereira saw that the man was holding a gun in his hand, apparently a revolver, and so he drew his own gun. Gisele Pereira, who also saw the man's gun, immediately ducked down behind the counter upon seeing it and closed her eyes. The man responded to Frank Pereira's defensive gesture by telling him to put down his gun. When Frank Pereira did not do so, the man shot him in the shoulder, then fired several more shots around the store before running out the front door without taking anything. As the man fled, Frank Pereira also ducked down behind some cases of wine while Gisele Pereira, who had crawled to the telephone, called 911. When an ambulance responded to the scene in response to the 911 call, Frank Pereira was taken to the hospital to be treated for his gunshot wound.

         Officer John Stadalink, of the Waterbury Police Department, was the first officer to respond to the scene after the 911 call came in. Upon his arrival, he first spoke to Gisele Pereira, who briefly described the person who had entered the store and shot her husband as a black male wearing a brown jacket with the hood pulled up over his head. Gisele Pereira was later taken to the hospital to be treated for a loss of hearing caused by the gunshots that had been fired in her presence during the incident.

         Michael Debarba was driving by Pereira's Package Store at approximately 2:15 p.m. on August 22, 2012, when he saw a black man with a bushy black beard that appeared to be fake walking in front of the store. The man was wearing sunglasses and a hooded sweatshirt with the hood pulled up. At the time of that observation, Debarba also saw a vehicle with a faded dark blue paint job, that he guessed to be a Ford Explorer, possibly manufactured in 2000, in the store's parking lot. He recalled that a light-skinned black woman wearing a tank top was sitting in the Ford Explorer at that time.

         Frederick Toupin was also in the vicinity of Pereira's Package Store at about 2:15 p.m. on August 22, 2012, when, while stopped at a nearby traffic light, he saw a man exit the store and run around the corner to its side parking lot. Toupin recalled that the man, who had dark skin, was wearing a dark hooded sweatshirt with the hood pulled up and baggy pants that he held onto with one hand as he ran. Toupin did not see anything in the man's hands. A couple of seconds after he saw the man run around to the side of the store, Toupin saw a blue Ford Explorer from what he believed to be the middle to late 1990s pull out of the parking lot. He described the vehicle as dark blue in color, with faded paint on the top and a ‘‘grey bumperish plastic molding'' on ‘‘[t]he bottom.'' Toupin saw only one person in the vehicle as it was being driven out of the parking lot.

         On August 24, 2012, the Pereiras went together to the Waterbury Police Department to give statements about the incident. Upon their arrival, they were placed in separate rooms, where they were interviewed by different officers, to whom they gave written statements about the incident. Gisele Pereira told the officer who interviewed her, Sergeant John Nappiello, that the man who had entered the store and shot her husband was a dark-skinned black male with a scruffy beard in his late twenties or early thirties, who stood approximately six feet tall and was wearing a brown hoodie with white writing on the front, dark colored pants and a large pair of dark sunglasses. Frank Pereira told the officer who interviewed him, Detective Shane Laferriere, that the man who had shot him was a black male in his thirties with a medium build, who stood approximately six feet tall, had a scraggly beard, and wore sunglasses and a burgundy-colored sweatshirt that was pulled up over his head.

         A few days after the August 22, 2012 incident, the Waterbury police received an anonymous tip that the defendant had committed the attempted robbery and assault at Pereira's Package Store using a vehicle that belonged to his girlfriend, Keturah Walton.[2] Based on that tip, Laferriere, who had been appointed as lead investigator on the case, obtained a photograph of the defendant from the database of the Department of Correction (DOC), modified it to adjust its unusual background color and used it, together with seven other photographs from his own department, to compile two arrays of eight photographs each to show to the Pereiras.[3]

         One week after the incident, on August 29, 2012, the Pereiras were asked to return to the police department to look at some photographs.On that occasion, as when they first went to the department to be interviewed, they arrived together but were separated upon their arrival to speak with different detectives. Gisele Pereira met on this occasion with Laferriere, while Frank Pereira met with Detective David McKnight. Each victim was asked at the outset of his or her interview to review and initial a document entitled ‘‘witness instructions for photo identification.''[4] Then each was shown one of the two arrays that Laferriere had compiled. Both Pereiras ultimately selected the defendant's modified DOC photograph as that of the man who had entered their store and shot Frank Pereira on August 22, 2012. After identifying the defendant, each victim was told by the detective who showed him or her the array that the person in the photograph he or she had selected was a man named Robert Day.

         After the Pereiras had identified the defendant as the perpetrator, Laferriere called Walton into the police department for an interview. Walton confirmed in that interview that she owned a dark-colored 2000 Ford Explorer which she occasionally let the defendant use. She also informed the police that she had let the defendant use that vehicle on the afternoon of August 22, 2012. Walton then signed a consent form allowing the police to search both her home and her vehicle. In later searching Walton's home, the police found the defendant's identification card, his duffle bag and his suitcase. Inside the duffle bag, they found a gun holster that was stretched out at the top in a manner that one state's witness claimed, over defense objection, to be consistent with having been used to hold a revolver.

         On August 31, 2012, two days after the Pereiras selected the defendant's photograph from their respective photographic arrays, the defendant was arrested on charges of assault of an elderly person in the first degree, attempted robbery in the first degree and criminal possession of a firearm. When he was taken to the Waterbury Police Department for processing after his arrest, a new booking photograph was taken of him, which listed both his name and the date of his arrest, August 31, 2012.

         Before the case was scheduled for trial, the defendant moved to suppress the Pereiras' out-of-court and anticipated in-court identifications of him on grounds that both the composition of the photographic arrays from which they had selected his modified DOC photograph and the manner in which those arrays had been shown to them were so unnecessarily suggestive as to make their resulting identifications too unreliable to be constitutionally admissible against him at trial. That motion, as twice supplemented by later motions to suppress challenging other aspects of the state's pretrial investigation and trial preparation procedures that allegedly tainted the victims' identification testimony, was denied by the court after an evidentiary hearing.

         In the subsequent trial, as previously noted, the defendant was found guilty by a jury of assault of an elderly person in the first degree and attempted robbery in the first degree, and found guilty by the court of criminal possession of a firearm. The defendant was later sentenced on all such charges to a total effective term of thirty years in prison. This appeal followed. Additional facts will be set forth as necessary.


         The defendant's first claim on appeal is that the trial court violated his state and federal constitutional rights not to be deprived of his liberty without due process of law by denying his pretrial motions to suppress all testimony by the Pereiras identifying him as the perpetrator of the charged offenses. The following additional facts and procedural history are relevant to this claim.

         The defendant initially moved to suppress the Pereiras' identification testimony on October 15, 2012, claiming that both their out-of-court and their anticipated in-court identifications of him were unreliable products of unnecessarily suggestive pretrial identification procedures that had been used by the detectives who investigated this case. Thereafter, on November 20, 2013, the defendant filed his first supplemental motion to suppress all eyewitness identification testimony against him by the Pereiras. In support of that motion, the defendant argued as follows: ‘‘The arrays used by the police did not consist of eight similar looking or similar[ly] attired individuals. There existed a distinct lack of similarity in the facial hair, head hair and features of the individuals and were inconsistent with the description of the perpetrator [by the witnesses].'' The defendant further argued that, ‘‘The procedure was neither double blind nor sequential and was unduly suggestive. The taint of the illegality requires the suppression of any subsequent in-court identification as well as the out-of-court identification.''

         Thereafter, on November 24, 2013, shortly before the scheduled start of the suppression hearing, the Pereiras met alone with Assistant State's Attorney Don E. Therkildsen, Jr., in his office. In that meeting, Therkildsen first questioned the victims together about their recollections of the incident on August 22, 2012, and their descriptions of the perpetrator. Then he showed them the two photographic arrays from which they had separately selected the defendant's photograph on August 29, 2012. Finally he showed them a single photograph of the defendant bearing the caption, ‘‘Robert Day mugs-hot 8/31/2012, 16:12.''

         Three days later, the court began an evidentiary hearing on the defendant's pending motions to suppress at which both Pereiras and several of the officers who interviewed them testified. Frank Pereira testified that the man who had shot him was a dark-skinned black man with thick lips and a scruffy or scraggly beard. He agreed with defense counsel that the man's beard was ‘‘full, '' in the sense that it was growing over his entire face, it included a mustache, and it came ‘‘down below the neck.'' Frank Pereira agreed with defense counsel's description of the perpetrator's facial hair as ‘‘just coming in, '' and Frank Pereira then explained that ‘‘[i]t appeared to me that he hadn't been shaving for days.'' He testified that he had observed the perpetrator from the side for a matter of seconds while the perpetrator was outside of the store, walking past its front window toward the door. When so viewing the man, he recalled, the man's ‘‘face was covered with the hood somewhat . . . .'' Frank Pereira further testified that during his brief confrontation with the man inside the store, he had been within six feet of the man, who was then wearing sunglasses and a dark hoodie, possibly maroon in color, with the hood pulled up over his head. When asked to describe the man's nose or neck or other features of his face or hands, Frank Pereira testified that he could not do so.

         Frank Pereira testified that before he selected the defendant's photograph from the photographic array, he studied the array for ‘‘quite a while.'' In so doing, he recalled, he used a process of elimination to narrow down the number of photographs to focus on. He was able to eliminate two or three of the photographs right away because ‘‘they just didn't come close to what . . . I remember.'' In examining the other photographs, he recalled that he had focused on the features that he had been able to see during the attempted robbery, such as the man's cheeks and lips. After he chose the defendant's photograph, he recalled circling it and initialing it, then giving another written statement to the detective. In that statement, he stated that he recognized the man in the photograph on the basis of his build, his facial features and his skin complexion. Later in his testimony, however, he acknowledged that, ‘‘The photograph that I circled had very poor lighting. It gave the appearance that his complexion was lighter than it actually was. I did see on another photograph after-ward-that photograph that I saw afterward, the complexion was darker.'' He then added, ‘‘As far as his complexion, it was not-that was not similar. What was similar is his features.'' Frank Pereira ultimately conceded that he may have been mistaken when he said in his written statement that he had chosen the defendant's photograph from the array on the basis of his skin complexion.[5] As the Pereiras were leaving the police station on the date they viewed the photographic arrays, they were told that they had identified the same person, a man named Robert Day.

         McKnight confirmed generally what Frank Pereira had stated in his testimony at the suppression hearing about the photographic identification procedure that McKnight had conducted with him on August 29, 2012. He further recalled that at the end of that procedure, in which Frank Pereira had taken about five minutes to examine the array before selecting the defendant's photograph from it, Frank Pereira had stated that he was very confident in his identification of the defendant.

         Frank Pereira also testified that he later saw a different photograph of the defendant in the newspaper that was different from the one he had selected from the array. As shown in the newspaper photograph, he recalled, the defendant ‘‘looked like [he] had [a] darker complexion'' than in the photograph he had selected from the array. Frank Pereira also testified that the skin complexion of the defendant, as it appeared in the mug shot he was shown by the state's attorney on November 24, 2013, was more similar to that of the man who had shot him than that of the man in the photograph he had selected from the array.[6]

         At the suppression hearing, Gisele Pereira testified that the man who entered the store and shot her husband on August 22, 2012, was wearing a ‘‘beige, light, like a tan'' hooded sweatshirt with lighter colored embroidery on it. The hood of the sweatshirt was pulled up over his head, and he was wearing large sunglasses with dark lenses. She testified that the man was approximately five feet, ten inches tall, with a medium build, a broad nose and very thick lips. He had a dark full beard, she recalled, in that his face was unshaven, with what could have been ‘‘a few days'' of growth that was ‘‘a little bit curly.'' She stated that the man was African-American, with ‘‘medium black skin, brown.'' She testified that the time from when she first saw the man walking into the store until he approached the counter and shot her husband was ‘‘very short.'' When the man pulled his gun, she recalled ducking down to the floor behind the counter and closing her eyes. When the shooting stopped, she said, she crawled to the telephone to call for help. She did not go to the hospital in the ambulance with her husband, but was taken there shortly thereafter by two detectives. Prior to going to the hospital, she gave the police a general description of the perpetrator. Although the scene was very chaotic when she spoke to the police just after the attempted robbery, and thus she could not recall exactly what she told the officer who spoke to her at that time, she testified that an accurate description she could then have given was of a man who was ‘‘medium built, about five feet, ten inches [tall], [with a] dark complexion, [and] wearing a hooded sweatshirt with writing on it . . . .''

         Gisele Pereira further testified that on August 29, 2012, she and her husband went to the police department to look at photographs to try to identify the perpetrator. Upon arriving, they were separated from one another and she met separately with Laferriere. After reading and signing a page of instructions, she was shown a single sheet of paper with eight photographs on it. She recalled examining those photographs for ten to fifteen minutes before making an identification. She, like her husband, recalled approaching the task of making an identification by using a process of elimination. In so doing, she found that she could immediately eliminate three or four of the photographs because they appeared to be of Hispanics, and thus did not fit her description or recollection of the perpetrator. She stated that, ‘‘When I gave the description to the police it was what I saw in the store, it's like it froze, a frame froze right there.''

         Concerning the array, Gisele Pereira recalled that, ‘‘[In] one picture in particular, the lighting wasn't the same color as the other one[s], so I just, you know, kind of looked back at it and tried to make adjustment in my mind as a photograph-photographer would do, you know, have different angles and so . . . .'' Because the lighting was ‘‘off'' in that photograph, she stated, the person's skin did not look as dark as the perpetrator's, as she had remembered it. She said that she was focusing primarily on the noses and mouths of the men in the photographs because those were the features of the perpetrator she ‘‘was staring at when this individual came in.'' She identified the man in the lighter colored photograph, the defendant, as the man who had shot her husband and said she was very confident in her identification of that man.[7]

         Laferriere testified at the suppression hearing that he had responded to the Pereiras' store on the report of a shooting on August 22, 2012. He testified that he did not speak with either of the victims on that day because they had both been taken to the hospital by the time he arrived, and the first officer on the scene had already done so. Laferriere learned that Gisele Pereira had told Stadalink that the man who had shot her husband was a ‘‘black male wearing a hooded sweatshirt with a beard and sunglasses.''

         Within a couple of days of the August 22, 2012 incident, Laferriere was assigned as lead detective on the case. On August 24, 2012, Laferriere took the statement of Frank Pereira, who described the man who had shot him as ‘‘five foot, ten, to six foot, three, black male with a medium build, scruffy beard and a rust colored sweatshirt.'' Hetestified that Frank Pereira told him that the man's beard was ‘‘poufy, '' although that description was not included in his written statement. Laferriere testified that Nappiello had taken the statement of Gisele Pereira on August 24, 2012. She then gave Nappiello the following description of the man who had shot her husband: ‘‘Approximately six foot tall, darker skinned black male, late twenties, early thirties, wearing large sunglasses, scruffy beard and wearing a sweatshirt . . . and . . . dark pants.''

         With those descriptions in mind, Laferriere began the process of compiling a photographic array by inputting certain descriptors into a computer program. Laferriere testified that, when compiling an array, he typically looks for photographs of persons with similar hairstyles, facial features, face shapes, facial hair, and skin tone, who are similarly lit and located in the photographs. He explained, ‘‘I put the [parameters], height, weight, age, eye color and then it just generates . . . [p]ictures that fall into that.'' Laferriere stated that he did not have the perpetrator's eye color. As to complexion, although he had received a description of a ‘‘darker skinned'' African-American male, he claimed that that factor is not used in compiling an array, as ‘‘It just falls under a black male.'' The computer generates a maximum of 250 photographs from which the investigating officer can choose eight for an array. He chose photographs that showed faces which, in his judgment, looked similar to the defendant and to one another. When asked if the photographs he had put in the arrays matched the descriptive information that the victims had provided in their statements, Laferriere reiterated that, ‘‘The photo array wasn't based on the information that we received from those statements.'' Instead, he stated, they were based on the ‘‘anonymous tip stating that [the defendant] was involved in this robbery.'' Laferriere thus obtained a photograph of the defendant from the DOC to include in the array, but because the background color of that photograph differed from those in the database of his own police department, the color of its background wall had to be changed ‘‘so [it would not be] suggestive, because [if it were not] his would have only been-the only wall that was a different color.'' The original photograph of the defendant that was used by Laferriere in the photographic array had been taken on December 19, 2008.

         As for the arrays that he compiled for use in this case, Laferriere testified that he believed that all of the men shown in them looked similar to one another, although he acknowledged that the lighting in the defendant's photograph was different from that in several of the other photographs. Laferriere testified that the men in all of the photographs had mustaches. When challenged on this claim with the suggestion that the defendant was the only individual in the arrays without a mustache, Laferriere indicated that he believed that it did depict a mustache, as he ‘‘could see it going up along the side of his face.'' When asked specifically whether the defendant had a mustache between the nose and upper lip, he responded, ‘‘There's hair there. It might [not] be as thick as the others, but there's hair there.'' Although the defendant had braids or cornrows in his photograph that was used in the photographic array, only two others in the array had similar braids. When asked why all of the photographs did not depict individuals with similar braids, Laferriere testified that he could only find two others, out of up to 250 photographs that he examined, showing men who had braids or ‘‘were even close to what he looked like.'' Laferriere testified that he did not ask the Pereiras to describe the perpetrator's nose, cheeks, lips, or shape of his head. When asked why he had presented the photographic array simultaneously instead of sequentially, he did not answer because the court sustained the state's objection to that question on the ground of relevance.

         Prior to showing the witnesses the photographic arrays on August 29, 2012, Laferriere did not ask them to look at a mug shot book or to look at photographs on a computer of people who fit the description they had given earlier; nor did he ask them for additional descriptive information about the perpetrator. Laferriere testified that he called the Pereiras and asked them to come to the police station on August 29, 2012, to look at some photographs. He testified that he did not tell them that they had a suspect. They arrived at the station together, but were taken into separate interview rooms. In one of those interview rooms, he met on this occasion with Gisele Pereira, whose description of the ensuing photographic identification procedure he generally confirmed except in one pertinent detail. Unlike the witness herself, who testified that she had examined the photographs for ten to fifteen minutes before selecting the defendant's photograph, Laferriere recalled that she had examined them for a minute at most before selecting the defendant's photograph and stating that she would never forget his face.

         On December 2, 2013, the defendant filed a second supplemental motion to suppress the Pereiras' eyewitness identifications of him as the perpetrator of the charged offenses based principally upon new information that had been developed in the suppression hearing to that point. On the basis of such new information, the defendant argued, inter alia, that the photographic array compiled by Laferriere ‘‘was not based on the descriptions of the shooter given by the eyewitnesses. Instead . . . Laferriere compiled the array based on an unsubstantiated confidential informant's tip that [the defendant] was alleged to have perpetrated the offense.'' The defendant also noted the differing testimony of Laferriere and Gisele Pereira as to how long it had taken her to identify the defendant from the photographic array on August 29, 2012. The defendant further argued that Therkildsen had violated rule 3.7 of the Rules of Professional Conduct[8] and General Statutes § 54-1p[9] by meeting together with the Pereiras on November 24, 2013, without the presence of an inspector, by discussing their earlier descriptions and identifications of the defendant in each other's presence, and by showing them the defendant's mug shot in what he claimed to have been a highly suggestive manner. The defendant argued that such conduct by Therkildsen, a state actor, had tainted all of the victims' prior and subsequent identifications of the defendant as the perpetrator.

         When the hearing on the motion to suppress resumed on December 2, 2013, counsel for the defendant announced his intention to call Therkildsen as a witness to describe his private meeting with the Pereiras on November 24, 2013. He argued that Therkildsen should be disqualified as counsel for the state because he had become an essential witness in the case by participating in that meeting without the presence of other witnesses, and showing the victims each other's photographic arrays and the defendant's mug shot without any necessity for so doing. The defendant argued that the showup as to the mug shot, in particular, had caused Gisele Pereira to add significant details to her description of the perpetrator's face, stating for the first time that the man who had shot her husband had a wide nose and thick lips. Frank Pereira, he contended, had ‘‘mimic[ked]'' his wife's testimony as to those previously unmentioned descriptive details.

         The court treated the first portion of the defendant's second supplemental motion to suppress as a motion to disqualify Therkildsen as counsel so that the defendant could call him as a witness, and denied the motion.[10]Thereafter, upon hearing arguments from counsel on the merits of the motions to suppress, the court denied those motions as well. In so doing, the court made the following relevant factual findings. ‘‘Detective Laferriere compiled the photo array. The photo of the defendant was one from the Department of Correction and included in the photo array. Including that photograph is no different than if the officers, if the police department itself had a photo of the defendant and based on the information they had, they included the photo from their file of the defendant in the array.

         ‘‘The question is whether the array is made up of similar looking individuals and whether it's unnecessarily suggestive given the composition and the officer's conduct. In this instance, Mr. Pereira gave a description of the person in the store, dark skin, unshaved with a scruffy beard, six feet tall. He was within six feet of the defendant. He described his clothing. He spoke to him while in the store, and then he told him to stop asking if he could help, but he also told him to stop as he was coming around the boxes. He saw the defendant draw the gun from his pocket, and he also told the defendant to put the gun down. The store was well-lit, and Mr. Pereira had also initially observed the defendant outside the store. Defendant's face was not covered, although he did describe the top that he was wearing to have a hood, and it was over his face so they could not see the hair.

         ‘‘The statement concerning the incident including the description was given a few days after. Detective McKnight administered the photo array to Mr. Pereira. He gave him instructions concerning the array prior to the identification being made, including informing him that the person may or may not be there, that they would continue to investigate regardless of whether he identified someone, and the person may not look exactly the same and it's important that the innocent be cleared.

         ‘‘Mr. Pereira testified that he did notice that there was a difference in the photo in that the individual appeared lighter; however, he took his time, he looked at it. He also indicated that the neck was darker, and he identified the defendant.

         ‘‘Detective Laferriere conducted a photo array with Mrs. Pereira. She was given the same instructions. Her statement was given few days after the incident, and she had also observed the defendant while he was outside the store. Mrs. Pereira felt that something was up, and she also felt that something was not right. And she also inquired if she could help, given the nature of the store; it is not self-serve. And when the officer administered the array to each of them, again in addition to giving the notice concerning the instructions concerning the photo array, the officers did not talk to them, inject themselves in any manner. So, under those circumstances, where [the] description was given [a] relatively short time after the photo array was put together from photos that had been generated by the computer, notice was given to each [witness] prior to the identification, there was no input from the officers administering the ...

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