January 2, 2019
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of New Haven, where the court, Blue, J., denied the
defendant's motion to suppress certain evidence;
thereafter, the matter was tried to the court; judgment
revoking the defendant's probation, from which the
defendant appealed to this court
Boehlert, assigned counsel, for the appellant (defendant).
A. Riggione, senior assistant state's attorney, with
whom, on the brief, were Patrick J. Griffin, state's
attorney, and Brian K. Sibley, Jr., senior assistant
state's attorney, for the appellee (state).
DiPentima, C. J., and Alvord and Beach, Js.
DiPENTIMA, C. J.
defendant, Jose Ruiz, appeals from the judgment of the trial
court revoking his probation and imposing a sentence of seven
and one-half years incarceration, execution suspended after
four years, and three years of probation. On appeal, the
defendant claims that the trial court (1) improperly denied
his motion to suppress the one-on-one showup identification
on the ground that the identification procedure was not
unnecessarily suggestive, (2) improperly found that he
violated his probation, and (3) abused its discretion in
revoking his probation. We are not persuaded and,
accordingly, affirm the judgment of the trial court.
following facts and procedural history are necessary for our
resolution of this appeal. On July 13, 2012, the defendant
was convicted of three counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (3) and
one count of carrying a pistol without a permit in violation
of General Statutes § 29-35 (a), and was sentenced to
twelve years incarceration, execution suspended after
fifty-four months, and three years of probation. The
defendant was released from incarceration on June 12, 2014,
and placed on probation. As a condition of his probation, the
defendant was not to violate the criminal laws of the United
States, the state of Connecticut or any other state or
November 22, 2015, as a result of an incident at a
Dunkin' Donuts in New Haven, the defendant was arrested
and charged with attempt to commit robbery in the first
degree in violation of General Statutes §§ 53a-49
and 53a-134, threatening in the second degree in violation of
General Statutes § 53a-62 and breach of peace in the
second degree in violation of General Statutes §
53a-181. Following the defendant's arrest, his probation
officer, Ada Casanova, on December 3, 2015, applied for an
arrest warrant on the ground that the defendant had violated
a condition of his probation. The next day, the application
was granted and the arrest warrant was issued. The defendant
denied the violation of probation charge and, on February 28,
2017, filed a motion to suppress the one-on-one showup
identification that occurred shortly after the alleged
incident on the ground that the identification procedure was
23, 2017, the court held a hearing on the defendant's
motion to suppress. Following testimony from one witness,
Police Officer Jason Santiago, and oral argument, the court
concluded that although the identification procedure used by
the police was suggestive, it was not
‘‘unnecessarily suggestive.'' After the
court ruled on the defendant's motion, the hearing on the
defendant's violation of probation charge commenced.
the violation of probation hearing, the court heard testimony
from three witnesses, Lawrence Welch, Casanova, and the first
assistant clerk for the judicial district of New Haven, and
also incorporated and considered Santiago's testimony
from the earlier hearing on the motion to suppress. Following
argument, the court found that the state had proven, by a
preponderance of the evidence, that the defendant had
violated his probation when ‘‘he accosted . . .
Welch at the Dunkin' Donuts . . . and threatened him in
various verbal ways and, at one point, displayed in a
threatening manner a . . . weapon with a black handle . . .
and chased . . . Welch a great distance . . . causing . . .
Welch a great and very understandable fear.''
Although the court concluded that there was insufficient
evidence to support a finding that the defendant had
committed robbery or attempted robbery, it determined that
the evidence was sufficient to support a finding that the
defendant had committed an act of threatening in the second
degree in violation § 53a-62 (a) (1). The court revoked
the defendant's probation and sentenced him to seven and
one-half years incarceration, execution suspended after four
years, and three years of probation. This appeal followed.
Additional facts will be set forth as needed.
defendant claims that the trial court improperly denied his
motion to suppress the one-on-one showup identification
because the identification procedure was unnecessarily
suggestive and unreliable. We conclude that the
identification procedure was not unnecessarily suggestive.
begin our analysis by setting forth our standard of review.
‘‘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 . . . . 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. . . . 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. . . . 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