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State v. Scott

Court of Appeals of Connecticut

July 23, 2019

STATE OF CONNECTICUT
v.
EMMIT SCOTT

          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 ...


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