Argued
January 5, 2017, and February 4, 2019
Procedural
History
Substitute
information charging the defendant with two counts of the
crime of robbery in the first degree, and with the crimes of
murder and felony murder, 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 evidence; thereafter, the matter was tried to the
jury; subsequently, the court, Clifford, J., denied the
defendant's motion to disqualify the judicial authority;
verdict of guilty of two counts of robbery in the first
degree; thereafter, the court, B. Fischer, J., rendered
judgment in accordance with the verdict, from which the
defendant appealed to this court. Affirmed.
Pamela
S. Nagy, assistant public defender, for the appellant
(defendant).
Laurie
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Patrick J. Griffin, state's
attorney, Michael Dearington, former state's attorney,
and Brian K. Sibley, Sr., senior assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Alvord and Moll, Js.
OPINION
ALVORD, J.
The
defendant, Emmit Scott, appeals from the judgment of
conviction, rendered following a jury trial, of two counts of
robbery in the first degree in violation of General Statutes
§ 53a-134 (a) (4).[1] On appeal, the defendant claims that
(1) the trial court deprived him 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, (2) there was insufficient evidence to
support his conviction of robbery as against one of the
victims, and (3) the court, Clifford, J., abused its
discretion by denying the defendant's motion to
disqualify Judge Brian Fischer. We affirm the judgment of the
trial court.
The
jury reasonably could have found the following facts. On July
31, 2012, the victims, Ruben Gonzalez and Jose Rivera, had
been working together during the night shift at a warehouse
in the town of Newington. When their shift ended at about
2:30 a.m., Gonzalez drove Rivera back to Rivera's home
located at 49 Atwater Street in the city of New Haven. The
victims arrived at Rivera's home at about 3 a.m., at
which point Gonzalez parked in the driveway. They remained in
the car, and Rivera began rolling a blunt of marijuana for
Gonzalez. Approximately five minutes later, Rivera noticed
three individuals, whom he did not recognize, riding bicycles
in the street and passing by his house at least twice. Rivera
became concerned and suggested to Gonzalez that they go to
his backyard, but Gonzalez told him that he felt comfortable
remaining in his vehicle. Moments later, two of the
individuals, the defendant and Ernest Harris, approached the
car on foot, with the defendant on the passenger side and
Harris on the driver's side. The third individual
remained in the street on a bicycle.[2]
The
defendant and Harris each had a gun. The defendant asked
where the drugs and money were and ordered the victims to
open their doors. The victims initially refused to exit the
car but did so after the defendant struck Rivera on the head
with his gun. After the victims exited the vehicle, the
defendant searched Rivera and took $10 and Rivera's cell
phone from his pants pockets. The defendant and Harris then
rummaged through the interior of the car for approximately
five minutes before finding and taking Gonzalez' cash and
cell phone.[3] As the defendant and Harris left the
scene, Gonzalez was shot twice and subsequently died as a
result of his injuries.[4] The entire incident lasted
approximately ten minutes.
Jeffrey
King, Jr., an officer with the New Haven Police Department,
was dispatched to 49 Atwater Street in response to a call
that a person had been shot. Officer King arrived to the
scene at approximately 3:30 a.m.[5] Rivera told Officer King
that three males had been there, and that the passenger side
assailant[6] was a black male, approximately five feet,
five inches tall and 160 pounds, and had been wearing a white
hat, backwards, and a black T-shirt. Francis Melendez, a
detective with the New Haven Police Department, recovered two
spent cartridge casings, as well as a ten dollar bill and
coins from the ground next to Gonzalez' car. Inside the
car, Detective Melendez located a few small, translucent
‘‘Ziploc type'' bags containing a powder
like substance, [7]as well as coins inside the center console.
Detective Melendez was able to lift several fingerprints from
Gonzalez' car, which he sent to the West Haven Police
Department for processing.
At
approximately 4 a.m., Rivera met with Nicole Natale and David
Zaweski, detectives with the New Haven Police Department, and
again provided descriptions of the assailants. He described
the passenger side assailant as having a ‘‘Rick
Ross''[8] type beard, which had been neatly groomed
and was about one to two inches off of his face. The next
day, on August 1, 2012, Detective Natale brought Rivera to
meet with a sketch artist. Rivera was able to provide the
sketch artist with a description of the passenger side
assailant, and in that description, noted that the passenger
side assailant had a full beard. That same day, Detective
Natale presented Rivera with two separate photographic
arrays. Neither photographic array included the defendant.
Rivera did not identify anyone in the photographic arrays as
either the driver's side assailant or the passenger side
assailant.
During
the course of her investigation, Detective Natale received
information that an individual with the nickname Semi might
have been involved in the July 31, 2012 incident, and later
learned that the defendant had the nickname Semi. Thereafter,
on August 8, 2012, Detective Natale presented Rivera with a
third photographic array, [9] which included a photograph of the
defendant that had been taken in March, 2011, one and
one-half years earlier. Rivera did not make an identification
during this photographic array procedure.[10]
On
August 10, 2012, Detective Natale and Detective Zaweski
interviewed the defendant.[11] The defendant initially denied
that he was at 49 Atwater Street on the night of July 31,
2012. Eventually, the defendant admitted that he had been at
that location, with Harris and a third individual with the
nickname Do.[12] He maintained, however, that he had not
been there when Gonzalez was shot. Rather, he told the police
that, earlier that morning, he had purchased marijuana from
Gonzalez from the passenger side of his car. The defendant
stated that he, Harris, and Do then rode their bicycles down
the street, but that Do and Harris turned around to return
toward the direction of 49 Atwater Street. The defendant told
the police that he ultimately decided to return to 49 Atwater
Street ‘‘[t]o see what [was] . . . taking them so
long'' and saw that everyone was outside of the car.
He saw that Do had his gun out, and he heard Gonzalez say
something to the effect of, ‘‘I know who you are,
'' or, ‘‘I know y'all
faces.'' The defendant maintained that, at this
point, he turned around and started riding his bicycle toward
Pine Street, which was adjacent to Atwater Street, when he
heard gunshots.[13]He denied knowing who shot Gonzalez. That
same day, after the police had interviewed the defendant, a
fingerprint found on the front passenger side door of
Gonzalez' car was identified as belonging to the
defendant.[14]
Thereafter,
the police learned that both the defendant and Harris were
due to be arraigned on unrelated charges in New Haven on
August 13, 2012. Robert F. 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 driver's side and passenger side assailants.
Although Inspector Lawlor knew that the defendant and Harris
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 Harris were among fourteen arraignees who
were in custody awaiting arraignment. Lawlor and Rivera sat
in the front row of the courtroom's public gallery, with
Lawlor seated six to eight seats away from Rivera. From his
vantage point, Rivera watched the defendant, Harris, and
twelve other custodial arraignees, all of whom were
handcuffed and surrounded by marshals, enter the courtroom
single file through the courtroom doors. Rivera recognized
the defendant and Harris
‘‘[i]nstantly''[15] when they walked through
the doors. Once he was outside the courtroom, Rivera told
Inspector Lawlor that he was ‘‘100 [percent
certain] that those [were] the guys.''[16]
A jury
trial followed, at the conclusion of which the defendant was
found not guilty of murder and felony murder, and guilty of
two counts of robbery in the first degree. The court rendered
judgment in accordance with the jury's verdict and
imposed a total effective sentence of forty years of
imprisonment, execution suspended after thirty years,
followed by five years of probation. This appeal followed.
In
connection with this same incident, Harris was tried
separately and convicted of one count of felony murder, one
count of conspiracy to commit robbery in the first degree,
and two counts of robbery in the first degree. See State
v. Harris, 330 Conn. 91, 191 A.3d 119');">191 A.3d 119 (2018).
Harris appealed, and, on March 9, 2016, our Supreme Court,
pursuant to Practice Book § 65-2, transferred
Harris' appeal from this court to itself.
This
court first heard oral argument in the defendant's appeal
on January 5, 2017. On March 29, 2017, this court issued a
stay in the defendant's case pending the final
disposition of Harris' appeal. On September 4, 2018,
State v. Harris, supra, 330 Conn.
91, was released by the Supreme Court. Thereafter, this court
lifted the appellate stay and ordered the parties in the
present appeal to file supplemental briefs to address the
impact, if any, of State v. Harris,
supra, 91, on this appeal. In addition to the
supplemental briefing, this court ordered additional oral
argument to be held on February 4, 2019. Additional facts and
procedural history will be set forth as necessary.
I
The
defendant first claims that the trial court deprived him of
his right to due process under the federal and state
constitutions when it denied his motion to suppress the
out-of-court and subsequent in-court identification of him by
Rivera. Specifically, he argues that the August 13, 2012
arraignment identification procedure was unnecessarily
suggestive and that the resulting identification was not
reliable under the totality of the circumstances. Even
assuming that the identification process at issue in the
present case was unnecessarily suggestive, [17] we conclude
that Rivera's identification of the defendant was
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. Moreover, we conclude that the
trial court's failure to apply the state constitutional
standard set forth in State v. Harris,
supra, 330 Conn. 91, which provides broader
protection than the federal constitution with respect to the
admissibility of eyewitness identification testimony, was
harmless because the court reasonably could not have reached
a different conclusion under that more demanding standard.
The
following additional facts and procedural history are
relevant to our resolution of this claim. 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. On January 14 and 15, 2015, the court
held a hearing on the motion. In addition to hearing
testimony from Rivera, Inspector Lawlor, Detective Natale and
Michael Udvardy, a private investigator, the court heard
testimony from Steven Penrod, a psychologist, who was present
at the hearing as the defendant's expert witness on
eyewitness identifications. Dr. Penrod opined that the
arraignment identification procedure was unnecessarily
suggestive. He also testified as to numerous variables that
could have affected the accuracy of Rivera's
identification of the defendant. At the conclusion of the
hearing, the court denied the motion in an oral ruling. At
trial, Rivera testified and identified the defendant as the
passenger side assailant.
In a
supplemental memorandum of decision issued after the trial,
the court set forth its reasons for denying the
defendant's motion to suppress. It found that the
arraignment identification procedure was not unnecessarily
suggestive because, of the thirty-four total arraignees,
fifteen to twenty were African-American males, [18]and of the
custodial arraignees, all were male and the majority of them
were African-American, which matched the description of the
passenger side assailant that Rivera provided to Detective
Natale. Specifically, the court found that five of the
African-American males who had been arraigned that day were
similar to the defendant, considering their height, weight
and age. The trial court also found that, even if the
identification procedure was unnecessarily suggestive, the
identification itself was reliable under the totality of the
circumstances. In support of its conclusion, the trial court
observed the following: Rivera had approximately ten minutes
to observe and view the passenger side assailant during the
commission of the crimes; the area was well illuminated;
although the assailant had been wearing a baseball cap, it
was worn backwards, which left his entire face exposed;
Rivera was very close to the assailant during the crimes, and
he was face to face with the assailant as he was going
through Rivera's pockets taking his money and cell phone;
Rivera was right next to the car as the assailant spent
several minutes rummaging through the car with the car's
interior light illuminating the defendant's face and
features; Rivera indicated that the assailant had a
distinctive beard, which he referred to as a
‘‘Rick Ross'' beard; Rivera's
attention was not impaired by alcohol or drugs; Rivera was
able to recall the assailant's approximate age, height,
weight, hairstyle and skin tone, as well as the clothes he
was wearing; at the arraignment, Rivera had an unobstructed
view of the defendant, who walked within a few feet of him;
Rivera immediately identified the defendant as the passenger
side assailant when the defendant came through the door for
his arraignment; Rivera was 100 percent certain that the
defendant was the passenger side assailant; and the length of
time between the crimes and Rivera's identification of
the defendant was fewer than fourteen days.
A
The
following legal principles 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. . . . 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. . . .
‘‘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 . . . .'' (Citations omitted; internal
quotation marks omitted.) State v. Harris,
supra, 330 Conn. 100-101. ‘‘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
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. . . . Finally, the burden
rests with the defendant to establish both that the
identification procedure was unnecessarily suggestive and
that the resulting identification was unreliable.''
(Citations omitted; internal quotation marks omitted.)
Id., 101-102.
Assuming
that the identification procedure was unnecessarily
suggestive, [19] we consider whether the identification
was nevertheless admissible. ‘‘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. . . . As mandated in Neil v.
Biggers, supra, 409 U.S. 188, and
reiterated by the court in Manson 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].'' (Citation
omitted; internal quotation marks omitted.) State v.
Harris, supra, 330 Conn. 108. Here, as in
Harris, the trial court made express findings
regarding each of the Biggers factors, which we now
address in turn.[20]
With
respect to the first two Biggers factors, the trial
court found that Rivera had ‘‘ample
time''-approximately ten minutes-to observe the
assailant. Moreover, the court found that Rivera observed the
assailant from a ‘‘very close'' distance,
and was face to face with the assailant as the assailant was
going through his pockets, and right next to the car while
the defendant rummaged through it, in a well lit area. The
trial court further found that Rivera was
attentive[21] during his encounter with the assailant,
who had nothing covering his face.[22] These findings strongly
support the trial court's conclusion concerning the
reliability of Rivera's identification of the defendant
as the passenger side assailant, even assuming that the state
used a flawed identification procedure. See State v.
Harris, supra, 330 Conn. 109.
The
defendant, however, challenges the trial court's findings
as clearly erroneous. In particular, he maintains that Rivera
initially told Detective Natale that the incident
‘‘happened very quickly, '' contrary to
the court's finding that Rivera had approximately ten
minutes to observe the assailant, and that the area was not
well illuminated.[23] Having carefully reviewed the record, we
disagree with the defendant that the trial court's
findings are unsupported by the evidence.
First,
the court's finding that Rivera had approximately ten
minutes to observe the assailant was supported by
Rivera's testimony that the assailants had been at the
car ‘‘a little more than ten minutes.''
Moreover, regardless of the configuration of the lights, the
trial court reasonably concluded that there was sufficient
light in the area such that Rivera had a good view of the
assailant for a considerable period of time. See State
v. Harris, supra, 330 Conn. 109. In
addition to Rivera's testimony that there had been a
porch light and a streetlight, he testified at trial that the
lighting was such that he could see down the street and that
he did not have difficulty seeing the assailants' faces.
Further, Officer King, who arrived at the scene shortly after
the incident, described the location as being
‘‘well lit'' and having
‘‘high visibility'' due to the
streetlights. In addition, the trial court credited
Rivera's testimony that the interior lights in the car
illuminated the defendant's face as he was rummaging
through the car.
The
record also supports the trial court's finding that
Rivera was attentive during the encounter. Rivera testified
that he was not under the influence of drugs or alcohol at
the time of the robbery, and he further explained that he
consciously tried to record a memory of the passenger side
assailant so that he could later retaliate against him for
the robbery.[24] ‘‘[A] finding of reliability
may be bolstered by the witness' conscious effort to
focus on the face of his assailant.'' State
v. Harris, supra, 330 Conn. 110. The
trial court was therefore entitled to credit Rivera's
testimony in this regard.
With
respect to the third Biggers factor, the accuracy of
the eyewitness' description of the offender, the
defendant argues that Rivera's description of the
assailant had been general, rather than specific, and that
his description of the assailant's facial hair had not
been accurate. We disagree. Rivera's description of the
assailant was both specific and accurate, and included the
individual's race (African-American), gender (male),
approximate age (twenties), approximate body type (medium
build), approximate weight (160 pounds), approximate height
(five feet, five inches), facial hair style (full beard), and
clothing (white hat, black T-shirt). This detailed
description conforms with considerable accuracy to the
information in the record concerning the defendant's
physical appearance.[25]
As we
previously have noted, Rivera described the assailant as
having a full beard, which he referred to as a
‘‘Rick Ross'' type beard, which was
neatly sculpted and one to two inches off of the
assailant's face. Rivera acknowledged that, at the time
of the arraignment procedure, the defendant's beard
appeared ‘‘scruffy, '' or messy, and two
to three inches long. On appeal, the defendant argues that
‘‘[t]he beard . . . is problematic because [the]
defendant did not have anything resembling a Rick Ross beard
when Rivera identified him not even two weeks after the
shooting. While Rivera claimed that it was [the]
defendant's beard that connected him to the gunman, he
admitted that [the] defendant's beard was messy, scraggly
and had hair all sticking out-a far cry from the sculpted,
groomed Rick Ross beard that was rounded under the chin and
one to two inches long.'' We are not persuaded by the
defendant's argument.
The
defendant does not dispute that he has a full beard,
consistent with Rivera's description of the assailant.
Moreover, Rivera's description was based on how the
assailant appeared at the time of the incident, on July 31,
2012. The arraignment procedure did not take place until two
weeks later, on August 13, 2012. Given the passage of time,
we cannot conclude that Rivera's description of the
beard, as it appeared on July 31, 2012, was
inaccurate.[26] Accordingly, we conclude that any
difference in appearance between Rivera's description of
the assailant's beard and the appearance of the
defendant's beard, two weeks after the incident, does not
render Rivera's identification of the defendant
unreliable.[27]
The
defendant also argues that the court's finding that
Rivera was able to observe the assailant's hairstyle,
skin tone, and clothing is clearly erroneous. We disagree.
Rivera told Officer King, the responding officer, that the
assailant was a black male who had been wearing a white hat
and black T-shirt. Moreover, although Rivera could not see
the assailant's hair because it was under his hat, he was
able to observe the assailant's facial hair style, and
told Detective Natale and Detective Zaweski, whom he met with
less than two hours after the incident, that the assailant
had a full, neatly groomed ‘‘Rick Ross''
type beard. The court's finding, therefore, is supported
by the evidence.
The
fourth relevant consideration under Biggers, the
level of certainty that Rivera displayed with respect to his
identification of the defendant, also strongly favors the
state's contention that Rivera's identification was
reliable for purposes of the analysis required under the
federal constitution. Rivera demonstrated not just high
confidence in his identification, but ‘‘100
percent'' certainty immediately after identifying the
defendant.
With
respect to the final Biggers factor, namely, the
length of time between the crime and the identification, we
find no merit to the defendant's contention that the two
week period between the date of the crime and Rivera's
identification of the defendant undermined the reliability of
that identification. See State v. Harris,
supra, 330 Conn. 112-13.[28]
The
defendant argues that the trial court ‘‘failed to
take into account numerous factors that weakened the
identification.'' First, the defendant argues that
the identification was unreliable because Rivera failed to
choose his photograph in the August 8, 2012 photographic
array procedure and that the trial court
‘‘ignored this evidence.'' In its
memorandum of decision, however, the court acknowledged that
the defendant's photograph was included in the August 8,
2012 array and that Rivera failed to make a positive
identification during the procedure. In doing so, the court
found that the photograph of the defendant that had been
included in the array was ‘‘outdated . . .
.'' This finding is supported by Detective
Natale's testimony that the photograph of the defendant
was not current and that it had been taken in March, 2011,
one and one-half years earlier.
Moreover,
Rivera testified that he is not the type of person who can
look at a photograph and make an identification. He explained
that ‘‘[with] pictures, you really don't see
the whole body of the person. It just shows you the face of
them, so you really don't know if they're really
chubby, and you don't know if they're tall . . . you
don't know anything about that.'' Similarly,
Rivera testified that it had not just been the
defendant's face that caused him to be 100 percent
certain in his identification-it was ‘‘his whole
body structure, like, his whole demeanor . . . like, the way
he was walking . . . .'' Accordingly, Rivera's
failure to identify the defendant in the photographic array
procedure does not lead us to conclude that his
identification of the defendant, at the subsequent
arraignment procedure, was unreliable.
The
defendant also argues that the reliability of Rivera's
identification of him was undermined by numerous factors,
including the ‘‘weapon focus'' effect and
the effect of stress on Rivera's ability to observe the
assailant, crossrace impairment, unconscious transference,
and the weak correlation between a witness' confidence in
his or her identification and the identification's
accuracy. He argues the trial court failed to consider Dr.
Penrod's testimony concerning these
factors.[29]
First,
in attempting to call into question the propriety of the
trial court's finding regarding Rivera's level of
attentiveness, the defendant relies on Dr. Penrod's
testimony concerning the ‘‘weapon focus''
effect and the effect of stress on Rivera's ability to
observe the assailant.[30] The ‘‘weapon
focus'' effect is ‘‘a phenomenon whereby
the reliability of an identification can be diminished by a
witness' focus on a weapon . . . .'' (Internal
quotation marks omitted.) State v. Harris,
supra, 330 Conn. 110. At the suppression hearing,
Dr. Penrod explained that ‘‘the concern about the
presence of a weapon at the scene of a crime is that it could
attract people's attention away from the face of the
perpetrator . . . .'' With respect to the effect of
stress, Dr. Penrod testified that being exposed to some level
of physical violence, which includes being
‘‘pistol-whipped, '' would raise the
stress level of an eyewitness, and that high stress
conditions reduce the accuracy of eyewitness identifications.
The
defendant also argues that cross-race impairment and
unconscious transference undermine the reliability of
Rivera's identification of him, and that the court should
not have credited Rivera's confidence in his
identification. With respect to ‘‘cross-race
impairment, '' Dr. Penrod testified that studies have
found ‘‘impairments [in identifications] whenever
people were identifying somebody of a different race,
'' and here, where Rivera is Hispanic and the
perpetrator is African-American, there is the potential for
cross-race impairment. Dr. Penrod also explained that
unconscious transference, which is a phenomenon where
‘‘people can lose track of the context in which
they had seen a face and mistakenly [identify] a face that
they'd seen in one context as a face they've seen in
another context, '' may have affected Rivera's
identification in this case, where Rivera viewed a photograph
of the defendant in the August 8, 2012 photographic array
before identifying him in the August 13, 2012 arraignment
procedure. In addition, the defendant argued that
‘‘although the court credited Rivera's claim
[that]he was 100 percent certain that [the] defendant was the
[assailant] . . . [t]here is at best a weak correlation
between a witness' confidence in his or her
identification and the identification's
accuracy.'' (Internal quotation marks omitted.)
First,
we note that the court was not required to credit Dr.
Penrod's testimony, nor was it required to set forth
specific findings related to these factors. Moreover,
‘‘even though the evidence may have supported
factors tending generally to undermine the reliability of the
eyewitness identifications, the trial court was not required
to afford more weight to those factors here than to the
factors upon which it relied.'' State v.
Day, 171 Conn.App. 784, 822, 158 A.3d 323 (2017),
cert. denied, 330 Conn. 924, 194 A.3d 776
(2018).[31] Those factors upon which the court
relied-Rivera's opportunity to view the perpetrator, his
degree of attention, the time between the crime and the
identification, and his level of certainty-are supported by
the record and by law. See id., 823; see also
Manson v. Brathwaite, supra, 432
U.S. 114.
Moreover,
even if the trial court fully credited Dr. Penrod's
testimony concerning the weapon focus effect and the effect
of stress on Rivera's ability to view the assailant, the
court reasonably could have concluded that, under the
circumstances, these factors did not operate to appreciably
impair Rivera's ability to focus his attention on the
assailant. Although Rivera testified that he had focused on
the defendant's gun and acknowledged that he was
‘‘in panic mode'' at the time of the
incident, he also testified, as we previously have noted,
that he focused on the assailant's face. Moreover, Rivera
had the opportunity to observe the passenger side assailant
over the course of approximately ten minutes, including while
the assailant searched his pockets and rummaged through the
car, during which time the gun was not pointed at him.
Similarly,
even if the trial court fully credited Dr. Penrod's
testimony concerning witness confidence, the court reasonably
could have concluded that, under the circumstances of this
case, there was a relationship between Rivera's
confidence and the accuracy of his identification of the
defendant. Although the defendant argues that there
‘‘is at best a weak correlation between a
witness' confidence in his or her identification and the
identification's accuracy''; (internal quotation
marks omitted); Dr. Penrod acknowledged that there is a
relationship between eyewitness confidence and the
identification's accuracy under certain circumstances. He
testified that ‘‘[i]f [confidence is] measured at
the time your identification is made before there's any
possibility of feedback to the witness . . . there is a
modest relationship between confidence and accuracy,
'' as is the case here.[32]
For
these reasons, we will not disturb the trial court's
conclusion that the identification was reliable, for purposes
of the federal constitution, under the totality of the
circumstances. Consequently, the defendant cannot prevail on
his federal due process claim that the trial court improperly
denied his motion to ...