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State v. Harris

Supreme Court of Connecticut

September 4, 2018

STATE OF CONNECTICUT
v.
ERNEST HARRIS

          Argued March 28, 2017

         Procedural History

         Information charging the defendant with one count each of the crimes of murder, felony murder, conspiracy to commit robbery in the first degree and carrying a pistol without a permit, and two counts of robbery in the first degree, brought to the Superior Court in the judicial district of New Haven, where the court, B. Fischer, J., denied the defendant's motion to suppress certain identification evidence; thereafter, the case was tried to the jury before B. Fischer, J.; subsequently, the court, B. Fischer, J., granted the defendant's motion for judgment of acquittal as to the count of carrying a pistol without a permit; subsequently, verdict and judgment of guilty of one count each of felony murder and conspiracy to commit robbery in the first degree, and two counts of robbery in the first degree, from which the defendant appealed. Affirmed.

          Jennifer B. Smith, for the appellant (defendant).

          Nancy L. Chupak, senior assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Brian K. Sibley, Sr., senior assistant state's attorney, for the appellee (state).

          Darcy McGraw and Karen A. Newirth, filed a brief for the Connecticut Innocence Project et al. as amici curiae.

          Palmer, McDonald, Robinson, D'Auria, Vertefeuille, Mullins and Kahn, Js. [*]

          OPINION

          PALMER, J.

         The sole issue presented by this appeal is whether the trial court deprived the defendant, Ernest Harris, of his right to due process under the federal and state constitutions when it denied his motion to suppress an out-of-court and subsequent in-court identification of him by an eyewitness to the crimes of which the defendant was convicted. The defendant was charged with felony murder and first degree robbery, among other crimes, after he and an accomplice, Emmitt Scott, allegedly robbed Ruben Gonzalez (victim) and Jose Rivera at gunpoint and Scott shot and killed the victim. The trial court denied the defendant's pretrial motion to suppress an identification that Rivera had made of the defendant while the defendant was being arraigned in an unrelated robbery case, as well as any in-court identification that Rivera might later be asked to make of the defendant. Following a trial, the jury found the defendant guilty of one count each of felony murder and conspiracy to commit robbery in the first degree, and two counts of robbery in the first degree.[1] On appeal, [2] the defendant claims that the trial court violated his due process rights under the federal constitution[3] by denying his motion to suppress Rivera's out-of-court and in-court identifications of him because, contrary to the conclusion of the trial court, the former was the product of an unnecessarily suggestive procedure and neither was reliable. The defendant further claims that, even if the state's use of Rivera's out-of-court and in-court identifications did not violate his due process rights under the federal constitution, the admission of those identifications violated his due process rights under the state constitution, which, the defendant contends, are more protective than his federal due process rights. Although we agree with the defendant that the out-of-court identification procedure was unnecessarily suggestive, we also conclude that Rivera's identification of the defendant was nevertheless sufficiently reliable to satisfy federal due process requirements. Accordingly, for purposes of the federal constitution, the defendant was not entitled to suppression of those identifications. We further conclude that the due process guarantee of the state constitution in article first, § 8, [4] provides somewhat broader protection than the federal constitution with respect to the admissibility of eyewitness identification testimony but that, in the present case, the trial court's failure to apply the state constitutional standard that we adopt today was harmless because the court reasonably could not have reached a different conclusion under that more demanding standard. We therefore affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of the defendant's claims.[5] After working together during the night shift at a warehouse in the town of Newington, the victim drove Rivera back to Rivera's home in the Fair Haven section of the city of New Haven, arriving at about 3 a.m. on July 31, 2012. The victim and Rivera were rolling a blunt in the victim's car when the defendant and Scott approached on either side of the vehicle. Scott, who was standing on the passenger side, demanded that Rivera roll down the window, and both the victim and Rivera were then ordered out of the car. The victim and Rivera initially refused to exit the car but did so after Scott struck Rivera on the head with his gun. After the defendant and Scott searched the victim and Rivera for cash and valuables, the defendant rummaged through the car's interior for two to three minutes, during which Scott kept his gun pointed at Rivera. When the defendant found $600 and a cell phone in the center console, he said ‘‘[b]ingo, '' and he and Scott began to walk away. As they were leaving, the victim shouted from behind them, ‘‘I'll remember your face, '' whereupon Scott turned and shot the victim twice, killing him. The entire incident lasted approximately ten minutes.

         Jeffrey King, an officer with the New Haven Police Department (department), was the first officer on the scene, arriving at approximately 3:30 a.m. At that time, Rivera provided King with a description of the shooter, Scott. With respect to the lighting, the crime scene was so well lit by nearby streetlamps and house lights that King did not need to use a flashlight in connection with his investigation, despite the early morning hour.

         Rivera was then taken from the crime scene to police headquarters, where he was interviewed by Detective Nicole Natale. At that time, Rivera described the shooter's accomplice-who had been standing on the driver's side of the vehicle and whom he would later identify as the defendant-as an African-American male with a thin build, approximately six feet, one inch, or six feet, two inches, in height, approximately twenty-six or twenty-seven years old, with short cropped hair, and as wearing a white t-shirt and blue jeans.

         Eight days later, on August 8, 2012, after learning that Scott was a suspect in several Fair Haven robberies, Natale performed a sequential photographic lineup for Rivera that included Scott's photograph. Rivera failed to identify Scott as one of the assailants. Later that day, a fingerprint found on the front driver's side door of the victim's car was identified as belonging to the defendant. Although Natale used the fingerprint to obtain a photograph of the defendant through a police database, she never presented the defendant's photograph to Rivera in a lineup procedure or otherwise. On August 10, 2012, a fingerprint found on the front passenger's side door of the victim's car was identified as belonging to Scott.

         Thereafter, the police learned that both the defendant and Scott were due to be arraigned on unrelated charges in court in New Haven on August 13, 2012. Robert Lawlor, an inspector with the state's attorney's office in the judicial district of New Haven, accompanied Rivera to the courthouse on that day so that Rivera could observe the arraignments and possibly identify the two men who had accosted him and the victim. Although Lawlor knew that the defendant and Scott were to be arraigned, he did not inform Rivera of that fact, and he never made Rivera aware of the defendant's name. The defendant and Scott were among fourteen arraignees who were being detained pending arraignment; the other twenty arraignees who appeared that day had not been in custody prior to their arraignment. Lawlor and Rivera both sat in the front row of the courtroom's public gallery, with Lawlor seated six seats away from Rivera. From his vantage point, Rivera watched the defendant, Scott, and the twelve other custodial arraignees-all of them handcuffed and surrounded by marshals-enter the courtroom single file through a door located only five feet away from him. Rivera recognized the defendant and Scott ‘‘as soon as they walked through the door.''[6] Once he was outside the courtroom, Rivera told Lawlor with ‘‘[n]o hesitation'' that he was ‘‘100 percent positive those are the two suspects . . . . I will never forget it.'' Lawlor responded that, in fact, they ‘‘may be'' the suspects, at which point the two men left the courthouse.

         Prior to trial, the defendant moved to suppress Rivera's identification of him at the arraignment proceeding and any subsequent identification that he might be asked to make of the defendant at trial. The trial court held a hearing on the motion and denied it in an oral ruling the following day, concluding that the arraignment identification procedure was not unnecessarily suggestive. At trial, Rivera testified and identified the defendant as the driver's side assailant.

         In a supplemental memorandum of decision issued after the trial, the court reiterated its finding that the identification procedure was not unnecessarily suggestive because, of the thirty-four total arraignees, fifteen were African-American males, which matched the description Rivera gave to Natale the morning of the murder. The trial court also supplemented its oral ruling with a finding that, even if the identification procedure was unnecessarily suggestive, the identification itself was reliable under the totality of the circumstances. In support of this conclusion, the trial court observed the following: Rivera had approximately ten minutes to observe the assailants during the commission of the crimes; the area was well illuminated despite the late hour, and the assailant's face was not covered; the car's interior dome light shone on the assailant's face while he searched inside the car; Rivera was only a few feet from the assailant and had a clear view of him; Rivera was not under the influence of drugs or alcohol at the time of the incident and otherwise was alert and attentive during the commission of the crime; Rivera's description of the assailant was specific in regard to his approximate age, height, weight, hairstyle, skin tone and clothing; Rivera was 100 percent certain that the defendant was one of the perpetrators; and the length of time between the crime and Rivera's identification of the defendant was only about two weeks.

         I

         The defendant first claims that the trial court's denial of his motion to suppress Rivera's in-court and out-of-court identifications violated his due process rights under the federal constitution because they both were the product of an unnecessarily suggestive arraignment identification procedure and were not reliable under the totality of the circumstances. The state contends that the trial court properly admitted Rivera's identification testimony after correctly determining that the identification procedure at issue was not unduly suggestive and that, even if, contrary to the trial court's finding, that procedure was impermissibly suggestive, Rivera's identification of the defendant at the arraignment proceeding was nonetheless reliable under all of the circumstances. We agree with the defendant that the procedure that the state used to obtain Rivera's identification of the defendant was unnecessarily suggestive. We also conclude, however, that that identification was reliable under all of the relevant circumstances and, consequently, that it was admissible and did not require the suppression of Rivera's in-court identification of the defendant.

         A

         At the outset, we briefly summarize the well established legal principles that govern our analysis of the defendant's federal constitutional claim. ‘‘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 [e.g.] Perry v. New Hampshire, 565 U.S. 228, 248, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012) . . . .'' State v. Dickson, 322 Conn. 410, 419, 141 A.3d 810 (2016), cert. denied, ___ U.S. ___, 137 S.Ct. 2263, 198 L.Ed.2d 713 (2017). ‘‘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. [See] Perry v. New Hampshire, supra, [238- 39].'' State v. Dickson, supra, 420.

         The test for determining whether the state's use of an unnecessarily suggestive identification procedure violates a defendant's federal due process rights derives from the decisions of the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 196-97, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). As the court explained in Brathwaite, fundamental fairness is the standard underlying due process, and, consequently, ‘‘reliability is the linchpin in determining the admissibility of identification testimony . . . .'' Id., 114. Thus, ‘‘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). Furthermore, ‘‘[b]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable.'' (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006) Nevertheless, ‘‘[w]e will reverse the trial court's ruling [on evidence] only [when] there is an abuse of discretion or [when] an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court's ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of [fact bound] determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.'' (Internal quotation marks omitted.) Id., 548. Finally, the burden rests with the defendant to establish both that the identification procedure was unnecessarily suggestive and that the resulting identification was unreliable. State v. Ortiz, 252 Conn. 533, 553, 747 A.2d 487 (2000).

         B

         Mindful of these principles, we first consider whether the trial court correctly determined that the identification procedure that the state used in the present case was not unnecessarily suggestive. We previously have acknowledged the potential for suggestiveness that inheres in arraignment identification procedures generally. See, e.g., State v. Payne, 219 Conn. 93, 107, 591 A.2d 1246 (1991) (‘‘we recognize the potential for suggestiveness inherent in an arraignment identification''); State v. Hinton, 196 Conn. 289, 295, 493 A.2d 837 (1985) (‘‘we have recognized that an arraignment identification may be ‘suggestive' ''); see also State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981) (‘‘[t]he mischief involved in the arraignment observation is the real possibility that the victim of one crime, armed with the knowledge that the suspect is being charged with another crime, possibly of the same character, is more likely to leap to the conclusion that the person being arraigned in front of him committed both crimes'').[7]Although arraignment identification procedures are not invariably so suggestive as to be per se impermissible; see, e.g., State v. Hinton, supra, 295-97; we are persuaded that the procedure employed in the present case was unnecessarily suggestive.

         Courts must consider two factors in determining whether an identification resulted from an unnecessarily suggestive procedure.[8] ‘‘The first factor concerns the composition of the [identification procedure] itself. In this regard, courts have analyzed whether the [subjects] used were selected or displayed in such a manner as to emphasize or highlight the individual whom the police believe is the suspect.'' State v. Marquez, supra, 291 Conn. 142-43. Of course, whatever procedure is utilized, the state is not required to ensure that the defendant and the others who comprise the array look exactly alike; what is required, rather, is that the array does not single out the defendant from the others. See id., 161-63; see also State v. Taylor, 239 Conn. 481, 499-500, 687 A.2d 489 (1996) (‘‘there exists no constitutional mandate that gives the defendant the right to a photographic array of lookalikes''), cert. denied, 521 U.S. 1121, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997); State v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (‘‘[a]ny array composed of different individuals must necessarily contain certain differences''), cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986). ‘‘The second factor, which is related to the first but conceptually broader, requires the court to examine the actions of law enforcement personnel to determine whether the witness' attention was directed to a suspect because of police conduct. . . . In considering this [factor, the court should] look to the effects of the circumstances of the pretrial identification, not whether law enforcement officers intended to prejudice the defendant.''[9] (Internal quotation marks omitted.) State v. Marquez, supra, 143.

         With respect to the first prong of the test, we disagree with the trial court's conclusion that the arraignment procedure was not unnecessarily suggestive because that conclusion was based on a clearly erroneous factual finding. Specifically, the trial court found that the composition of the corporeal array[10] was not unnecessarily suggestive because, of thirty-four total arraignees, fifteen of them matched Rivera's description of the driver's side assailant with respect to race (African-American) and gender (male). The court's conception of the array as consisting of the thirty-four arraignees, however, was significantly broader than the actual, operative array from which Rivera identified the defendant.

         Rivera testified that Lawlor told him that ‘‘we may have suspects in the court'' and that ‘‘there's going to be a group of guys coming out, and let me know if you can identify somebody that is coming out those doors.'' (Emphasis added.) Indeed, as we have explained, when Lawlor brought Rivera into the arraignment courtroom, he directed Rivera to sit in the front row of the gallery to ensure that he had a clear and unimpaired view of the door through which the custodial arraignees would be entering. Thus, even if we were to assume that all twenty noncustodial arraignees were in the courtroom and identifiable as arraignees during the period of time that Rivera himself was in the courtroom, it is apparent that they only could have been seated next to or behind Rivera and that they were not among the group of arraignees entering the courtroom through the door to which Rivera's attention had been directed. Furthermore, although the testimony conflicted as to how many arraignments Rivera and Lawlor actually observed, there simply is no evidence from which to conclude that they were present for the arraignment of any of the noncustodial arraignees who were African-American males.[11] We conclude, therefore, that the trial court incorrectly treated the array as being comprised of all thirty-four arraignees. The proper starting point for the trial court's analysis of the composition of the array, rather, should have been the fourteen custodial arraignees, only nine of whom were African-American males.[12]

         The defendant claimed before the trial court that none of those fourteen custodial arraignees was an appropriate filler. In support of this contention, the defendant adduced the testimony of Jennifer Dysart, a psychology professor at John Jay College of Criminal Justice and a recognized expert in the field of eyewitness identification. Dysart opined that all of the arraignees were inappropriate fillers due to the marked dissimilarities between each of those arraignees and Rivera's original description of the driver's side assailant as a thin, African-American male, approximately six feet, one inch, or six feet, two inches, tall, and about twenty-six or twenty-seven years old. Dysart ruled out female and non-African-American arraignees, leaving nine custodial arraignees who were African-American males. Dysart then eliminated those remaining nine arraignees, either because they were as much as six inches shorter than the person whom Rivera described as the suspect, weighed far more than the suspect, or were significantly older than the suspect. Relying on Dysart's testimony, the defendant renews his claim that the array was manifestly inadequate.

         The state does not seriously challenge this aspect of Dysart's testimony or otherwise contend that the physical characteristics of a sufficient number of the custodial arraignees were sufficiently similar to those of the defendant so as to satisfy principles of due process. The state's primary contention, rather, is that the physical attributes of the custodial arraignees are relatively unimportant in view of the fact that, according to Rivera, he identified the defendant as the assailant immediately upon observing him.

         Although, as we noted previously, perfection in the selection of identification fillers is not required, the physical differences between the suspect and the custodial arraignees in the present case were clearly significant enough ‘‘to emphasize or highlight the individual whom the police believe[d] [was] the suspect.'' State v. Marquez, supra, 291 Conn. 143; see also G. Wells & D. Quinlivan, ‘‘Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later, '' 33 Law & Hum. Behav. 1, 7 (2009) (‘‘[r]esearch consistently supports the view that using fillers who do not fit the eyewitness' previous verbal description of the culprit dramatically increases the chances that an innocent suspect who fits this description will be mistakenly identified''). Indeed, the array was overly suggestive by any measure. Cf. State v. Payne, supra, 219 Conn. 107-108 (approving arraignment identification procedure involving eight arraignees of sufficient similarity to defendant); State v. Hinton, supra, 196 Conn. 292 (approving arraignment identification procedure involving seven arraignees of sufficient similarity to defendant). Moreover, the fact that Rivera identified the defendant immediately upon seeing him at the arraignment is essentially irrelevant for purposes of this prong of the test, which implicates only the physical characteristics of the suspect and those of the other African-American male custodial arraignees. Because none of those custodial arraignees was sufficiently similar to the defendant in height, weight and age, the identification procedure was impermissibly suggestive. We therefore must decide whether the trial court's denial of the defendant's motion to preclude Rivera's identification testimony as violative of federal due process principles may nevertheless be sustained on the ground that Rivera's identification of the defendant at the arraignment proceeding was reliable under the totality of the circumstances. See, e.g., Manson v. Brathwaite, supra, 432 U.S. 113. For the reasons set forth hereinafter, we conclude that it was.

         C

         An identification that is the product of an unnecessarily suggestive identification procedure will nevertheless be admissible, despite the suggestiveness of the procedure, if the identification is reliable in light of all the relevant circumstances. See, e.g., State v. Marquez, supra, 291 Conn. 141. As mandated in Neil v. Biggers, supra, 409 U.S. 188, and reiterated by the court in Man-son v. Brathwaite, supra, 432 U.S. 98, for federal constitutional purposes, we determine whether an identification resulting from an unnecessarily suggestive procedure is reliable under the totality of the circumstances by comparing the ‘‘corrupting effect of the suggestive identification'' against factors including ‘‘the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the [identification], and the time between the crime and the [identification].'' Man-son v. Braithwaite, supra, 114, citing Neil v. Biggers, supra, 199-200. The trial court made express findings regarding each of these so-called Biggers factors, which we now address in turn.

         With respect to the first two Biggers factors, the trial court found that Rivera had ‘‘ample time''-approximately ten minutes-to observe the assailant from a ‘‘very close'' distance-no more than a few feet-in a well lit area. The trial court further found that Rivera was clearheaded and attentive during his encounter with the assailant, who had nothing covering his face or head and otherwise made no effort to disguise himself. These findings strongly support the trial court's conclusion concerning the ...


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