Lead Opinion
Opinion
The defendant, Troy Artis, appeals from the judgment of conviction, rendered after a jury trial, of accessory to assault in the first degree by means of a dangerous instrument in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1). On appeal, the defendant claims that the trial court (1) improperly denied his postverdict motion for a judgment of acquittal on the ground of insufficient evidence and (2) abused its discretion by denying his motion to suppress.
Based on the correctly and incorrectly admitted evidence, the jury reasonably could have found the following facts. At approximately 11 p.m. on February 14, 2008, the victim, Alexis Otero, drove some of his friends to Club Blu on Ann Street in Hartford where he was sometimes employed as a bouncer. Approximately half an hour later, Otero walked two blocks from Club Blu to Club NV near the comer of Allyn and High Streets.
On the same evening, Christina Miaño also went to Club NV together with her then boyfriend, Robert Acevedo,
Near closing time, Otero, who knew Miaño, visited with her for several minutes. At the time, he did not know that Miaño had arrived with Robert Acevedo, whom he did not know. Otero routinely photographed people at nightclubs for a radio station website, and that night he took a photograph of Miaño and Anna Acevedo.
At closing time, Otero left Club NV to return to Club Blu. Miaño left Club NV at approximately the same time and got into the Infiniti with Robert Acevedo and Anna Acevedo. She sat in the front seat next to Robert Acevedo as the three, uncertain of the defendant’s whereabouts, waited for him to join them. Miaño saw Otero and beckoned for him to come speak with her, which he did. Once the conversation was over, as Otero crossed High Street on his way to Club Blu, Robert Acevedo drove the Infiniti straight toward him. Otero jumped onto the sidewalk and yelled an obscenity at Robert Acevedo, who apologized. According to Miaño, Robert Acevedo thought that Otero had “disrespected]” him by talking with her.
Shortly thereafter, the defendant opened the rear passenger door of the Infmiti from the outside, entered the automobile briefly and quickly exited to confront Otero. The defendant and Otero exchanged profanities, and the defendant then punched Otero in the face and shoulder as the two men engaged in a face-to-face flstfight that lasted somewhere between two and ten seconds. Seconds after the flstfight commenced, Robert Acevedo and Anna Acevedo got out of the Infiniti and approached the defendant and Otero. Otero was then struck from behind, causing him to fall to the sidewalk. While he was on the sidewalk, Otero was on all fours covering his head. For approximately ten to twenty seconds, he felt three or four people assault him from different directions. Miaño got out of the automobile when she saw Robert Acevedo, Anna Acevedo and the defendant all crowded around Otero while he was on the ground; Miaño was unsure as to what they were doing. Miaño then “grabbed Anna off’ Otero, and the two women began to argue. During the assault on Otero, Miaño did not see a weapon or a knife. At some point, she dropped her cell phone.
As Hector Robles, a Hartford police officer, walked toward the group of people surrounding Otero, others on the street called out, “cops . . . .” The fight broke up and the crowd dispersed.
When Otero got up from the sidewalk, the Infiniti was gone. He saw a cell phone and put it in his pocket. He also saw that his hand was bleeding heavily. He walked to Club Blu where he knew he would find a police officer and familiar people to help him. Jessie Rego, who was working at the door of Club Blu, observed that the cut in Otero’s thumb was so deep that he could see the bone. Rego also saw blood coming from Otero’s stomach. A police officer found a trail of blood between Club NV and Club Blu.
Otero was transported by ambulance to Hartford Hospital (hospital). Although Otero has no recollection of being transported to or arriving at the hospital, he remembers going into an operating room, where he was treated for seven puncture wounds to his torso, arms and hand. Twenty sutures and fifty staples were required to close Otero’s wounds. As a result of his injuries, Otero is no longer able to exercise as he once did, and walking is difficult due to an injury he sustained to his knee.
Although Otero has no recollection of talking to a police officer at the hospital, he was, in fact, interviewed by Sergeant Jeff Rousseau soon after arriving at the hospital. Rousseau testified that Otero told him that his assailants, two men and a woman, were in a newer gray Infiniti. He described both men as light-skinned black males, approximately twenty-seven to twenty-eight years old. The stockier of the two men had freckles on his face. According to Rousseau, Otero was not sure that he could identify the perpetrators, but he did not rule out identification. Otero gave Rousseau Miano’s cell phone.
The defendant was arrested pursuant to a warrant
During trial, the defendant filed a motion to suppress Otero’s out-of-court identification and to prevent any in-court identifications on the basis of his claim that the
I
The defendant’s first claim is that the court improperly denied his motion for a judgment of acquittal after the verdict, as there was insufficient evidence that he intended to cause Otero serious.physical injury or knew that anyone involved in the altercation was armed with, or used, a deadly weapon or dangerous instrument.
Count two of the amended substitute information alleges, in relevant part, that the state accuses the defendant “of accessory to assault in the first degree, and charges that on or about February 15, 2008 . . . [the defendant] with intent to cause serious physical injury to another person by means of a dangerous instrument, did intentionally aid another who caused such injury to such person ... in violation of Sections 53a-8 and 53a-59 (a) (1) . . . .”
In denying the defendant’s postverdict motion for a judgment of acquittal, the court stated: “On the basis of all the evidence presented at trial and the logical inferences that can be drawn therefrom, it is my assessment that the jury reasonably could and did conclude that all of the elements of accessory to assault in the first degree as alleged
“There was no interlude between the face-to-face fistfight and [Otero] being knocked to the ground from behind. And immediately while on the ground covering up, he was kicked, punched, struck from all angles by three people. [Miaño] was not involved in the assault of [Otero]. That left [Robert Acevedo and Anna Acevedo] and the defendant as the three persons assaulting [Otero] as he was down on the ground. The on-the-ground portion of this incident lasted a matter of seconds. When it was over, [Otero] had been stabbed seven times while on all fours covering up and while being beaten, hit and assaulted by three persons, one of whom was the defendant. All four, the defendant included, left the scene together in the Infmiti when the police arrived or [when] they were approaching. Additionally, there was evidence that earlier in the evening the defendant had a knife, which was placed back in the car in order to gain entry into [Club NV]. And the jury heard evidence of the observation in the car . . . they drove from the scene.
“In my view, that evidence in its entirety, if believed, and the reasonable inferences that can be drawn therefrom, support the conclusion of applying a beyond a reasonable doubt standard that the defendant intended to cause serious physical injury. And given the close contact while [Otero] was on the ground . . . that he knew one of the three had and was using an implement capable of causing serious physical injury. Seven stab wounds inflicted within an incident of a very short duration with all three closely huddled around the on-the-ground victim, pummeling him, supports a reasonable inference regarding the awareness that multiple stab wounds were being inflicted, as well as an intent to cause serious physical injury.
“With reference to the element, ‘intentionally aid,’ evidence of repeated intentional striking, kicking, et cetera, of the on-the-ground victim over a matter of seconds, during which time [Otero] was being stabbed seven times, and thereby keeping him down and inhibiting or preventing him from resisting or defending himsеlf, amounts, in my view, to intentionally aiding the one of the three who was doing the stabbing, that is, the one committing the assault in the first degree with a dangerous instrument.” On the basis of our review of the evidence and the law, we conclude that the trial court properly denied the defendant’s postverdict motion for a judgment of acquittal.
We employ a two part test when reviewing claims of insufficient evidence. “First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports
“[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.” (Citations omitted; internal quotation marks omitted.) State v. Torres,
The jury “must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical ... to conclude that a basic fact or an inferred fact is true, the [jury] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Liborio A.,
The defendant in this matter was charged as an accessory to assault in the first degree by means of a dangerous instrument. For the purpose of determining criminal liability as an accessory, it is of no consequence whether one is labeled an accessory or a principal. State v. Barley,
“To warrant a conviction for assault in the first degree in violation of § 53a-59 (a) (1), the state bore the burden of proving the following elements beyond a reasonable doubt: (1) the defendant possessed the intent to cause serious physical injury to another person; (2) the defendant caused serious physical injury to such person . . . and (3) the defendant caused such injury by means of a deadly weapon or a dangerous instrument.” State v. Holmes,
“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. ... It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Vasquez,
The defendant claims that it was impermissible speculation for the court to conclude that “[s]even stab wounds inflicted within an incident of a very short duration with all three [people who had attacked Otero] closely huddled around the on-the-ground victim, pummeling him, supports a reasonable inference regarding the awareness that multiple stab wounds were being inflicted, as well as an intent to cause serious physical injury.” He also argues that “the small, quiet nature of a knife blow, the brevity of the incident, the dim lighting, and the inherent stress and chaos of the fight all make it virtually impossible for [the defendant] to have noticed whether [Robert Acevedo or Anna Acevedo] was using a knife . . . ,”
The evidence admitted at trial was adequate to permit the jury to conclude that the defendant was present when either Robert Acevedo or Anna Acevedo caused Otero to fall to the sidewalk and, in concert with the two of them, surrounded Otero, whom they struck, kicked and pummeled as he protected his head. The jury was not required to, but reasonably could have, inferred that the defendant intended to aid the principal in causing Otero serious physical injury.
Serious physical injury “means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. . . . .” General Statutes § 53a-3 (4). In this matter, the jury heard evidence that Otero sustained a laceration to his thumb that revealed the bone and seven stab wounds that required twenty stitches and fifty staples to close. Otero was hospitalized for several days, required additional surgery and had not fully recovered as of the time of trial. “[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences crom the evidence. ... In considering
“A dangerous instrument means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury .... [A] dangerous instrument may be an ordinary object not designed to cause death or serious physical injury . . . [and each] case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 590.
In the present case, the jury heard evidence that prior to entering Club NV, the defendant left a knife in the Infiniti. After leaving Club NV, Robert Acevedo attempted to run over Otero with his automobile because he had spoken with Miaño, Robert Acevedo’s date for the evening. Thereafter, the defendant briefly entered the Infiniti before cоnfronting Otero and initiating a fistfight with him. Robert Acevedo and Anna Acevedo then got out of the Infiniti and, shortly after, Otero was hit from behind, causing him to fall to the sidewalk. When the defendant and Robert Acevedo and Anna Acevedo became aware of the police presence, they got into the Infiniti and drove away. As a result of the altercation, Otero suffered a deep cut to his thumb and seven stab wounds to his torso and arms that required surgical intervention. Otero was unable to walk and exercise as he once had. On the basis of this evidence, the jury reasonably could have inferred, beyond a reasonable doubt, that the defendant participated in an assault upon Otero and, given the nature of Otero’s wounds, that the defendant intended to cause Otero serious physical injury. See State v. Hines,
The defendant also claims that there was no evidence that he knew that a knife was used in the assault on Otero. The crime of which the defendant was found guilty does not require that he knew of the presence of a knife, if indeed, that is the instrument that caused Otero’s injuries. See General Statutes § 53a-8 (a).
Our Supreme Court has held that “to establish acces-sorial liability under § 53a-8 for manslaughter in the first degree with a firearm . . . the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person . . . and that the principal, in committing the act, used, carried or threatened to use a firearm.” State v. Gonzalez,
Therefore, in the present case, the state was not required to prove that the defendant intended to cause serious physical injury by means of a dangerous instrument, or to prove that the defendant was even aware that another participant had a dangerous instrument or knife. See State v. Avila,
II
The defendant’s second claim is that the court abused its discretion by denying his motion to suppress Otero’s out-of-court and in-court identifications. Specifically, he claims that, although the court found that the police identification procedure was unnecessarily suggestive,
We first set forth the principles of law that guide our analysis. The parameters of the admissibility of pretrial photographic identifications and later in-court identifications by victims and witnesses in criminal cases are well established. At the outset, “[i]t is absolutely clear that the admission of evidence concerning a pretrial identification procedure that was unnecessarily suggestive and resulted in an unreliable identification violates a person’s rights to due process under both the federal and state constitutions.” State v. Reddick,
Finally, if the court determines that an out-of-court identification has occurred under conditions that are unnecessarily suggestive and unreliable, the burden at trial is on the state to establish by clear and convincing evidence under the totality of the circumstances that the in-court identification is based upon the witness’ independent recollection, untainted by the faulty pretrial identification process.
The issue of whether an out-of-court identification was unnecessarily suggestive involves a mixed question of law and fact. State v. Marquez,
Finally, if we find that the court incorrectly permitted, as rehable, evidence flowing from an unreliable and unduly suggestive identification procedure, there remains the further issue of whether the ensuing judgment of conviction may be affirmed on the ground that the due process violation was, nevertheless, harmless in light of all the evidence correctly adduced at trial аnd untainted by the admission of an unreliable identification. This question requires, in part, that we discuss whether the harmless error doctrine is applicable in this legal context and, if so, the parameters of a harmless error analysis in the context of a constitutional error.
We first examine the question of whether the identification was unnecessarily suggestive.
Following Rivera, Otero testified and made an in-court identification of the defendant. He also testified that he had made an out-of-court identification. Otero stated that in the weeks following the incident he received secondhand and thirdhand reports, giving him names of people who might have been involved, including the name “Hershey,” which he was told was the defendant’s street name.
Bilbo testified that in May, 2008, he showed Otero a photographic array with eight photographs that did not include the defendant. From this array, Otero was not able to make any positive identifications, although he did indicate that two of the photographs were similar to the person who attacked him. One of the photographs tentatively selected by Otero was that of Robert Acevedo. Bilbo indicated, as well, that in June, 2008, he prepared a photographic array for Otero and that this
Confronted with the inconsistency between Otero’s testimony that he positively identified the defendant from the one photograph shown to him and Bilbo’s testimony that Otero did not make an identification, the court concluded, after hearing a motion to suppress, that Otero’s testimony was more credible in this regard than Bilbo’s.
While in a claim of a wrongfully admitted photographic identification, our review of the record is more scrupulous than the norm, it is not our function to make our own credibility determination from the bare record. In this instance, the record provides ample basis for the court to have concluded, as it did, that Otero identified the defendant as his assailant from the one photograph shown to him by Bilbo.
On the basis of these facts, there can be no question that this identification procedure was improper and that it was clearly not made necessary by any extenuating circumstances. Indeed, to characterize the process as merely suggestive belies the facts found by the court. It is undisputed that after Otero had told Bilbo of his belief in the defendant’s involvement in the assault that Bilbo then showed the defendant’s photograрh to Otero while identifying the person in the photograph as the defendant and simultaneously telling Otero that the defendant was a suspect whose arrest he would be seeking. It would be difficult to conceive of a less neutral or more preemptive identification process than the one that occurred in this instance. It was against the backdrop of this dramatically improper identification process
Our Supreme Court has stated that “almost any one-to-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive . . . because it conveys the message to the victim that the police believe the suspect is guilty.” (Citation omitted; internal quotation marks omitted.) State v. Wooten, supra,
As to whether an overly suggestive identification procedure is necessary, the court will look to whether exigent circumstances existed, such as a show-up shortly after a crime while the victim’s memory is fresh and to quickly eliminate any innocent persons. State v. Wooten, supra,
Having reached the conclusion that the out-of-court identification procedure
A
The Opportunity of the Witness to View the Defendant At the Time of the Assault
This consideration implicates factors that relate to the victim’s condition at the time as well as the external environment. As to the former, and contrary to the trial court’s finding that Otero consumed a “couple of beers” in the hour and one-half before the incident, Otero acknowledged that between 11:30 p.m. and 1 a.m., moments before the altercation, he consumed “[a]t least four” beers, which he described as twelve ounce bottles of Heineken beer.
Another factor relating to the victim’s opportunity to observe his attacker is the amount of time involved in the incident. In this regard, Otero’s testimony was inconsistent as to how long the altercation lasted.
In its analysis of this factor, the court concluded that Otero had an adequate opportunity to see the assailant, and the court made reference to Otero’s testimony that he was face-to-face with the assailant for five to ten seconds. The court, however, made no explicit determination of the length of time Otero and his assailant were face-to-face, other than stating it was only a few seconds. Rather, the court based its conclusion on its view that “a good hard look will pass muster, even if it occurs during a fleeting glance”; (internal quotation marks omitted); quoting State v. Cubano,
B
The Witness’ Degree of Attention
To buttress its conclusion regarding Otero’s opportunity to observe the defendant, the court noted not only that Otero gave an apt description of the defendant’s physical appearance but that he had been concentrating on his attacker. In this regard, the court noted, “[Otero’s] observation of and description of such [a] facial feature [as freckles] is not merely indicative of [a] perfectly adequate opportunity to observe but also confirms that his concentration was on the perpetrator’s face, unlike moments later when he was struck from behind and unable to see or identify his other attackers . . . .” This characterization, however, is inaccurate as, during the trial, Rousseau testified that when he met with Otero at the hospital shortly after the assault, Otero gave him descriptions of three people, one light-skinned black male, twenty-seven to twenty-eight years old, five feet, eight inches to five feet, nine inches tall, and 180 pounds, a light-skinned black male with freckles, twenty-seven to twenty-eight years old, five feet, nine inches, 200 pounds and stocky as the front seat passenger, and a black female, twenty-three to twenty-four years old, five feet, three inches, 120 pounds, whom he did not think was involved in the assault. Furthermore, in this regard, Bilbo testified that when he showed Otero an array of eight photographs, including a photograph of Robert Acevedo, Otero picked out Robert Acevedo and another person as similar to the person who had attacked him. This uncontra-dicted testimony of Otero’s detailed descriptions of three individuals allegedly at the scene of the attack and his successful selection of the photograph of Robert Acevedo as looking similar to his attacker contradict the court’s conclusion regarding the level of Otero’s concentration on his attacker.
Also relevant to Otero’s opportunity to view the defendant as his initial assailant
Thus, although Otero testified that he and the defendant were face-to-face as they exchanged punches, the undisputed testimony from the record reveals that their confrontation in this melee of a few seconds took place in the context of a heated verbal exchange during which Otero was struck twice by his assailant, in the shoulder and facial area, and during which Otero struck the assailant two times. Although there was no direct evidence regarding Otero’s emotional condition at the time, it is reasonable to infer that, just having nearly been struck by an automobile and in the midst of a heated physical and verbal exchange, he was agitated and under stress. The notion that a person’s level of stress has a correlation to that person’s accuracy of observation and recall is not novel and has support in decisional law as well as in social science.
C
The Accuracy of the Witness’ Prior Description of the Defendant
As noted by the trial court, Otero’s identification of the defendant was accurate except with respect to his age. Rivera testified that Otero described his assailant as a fight-skinned black male, approximately five feet, eight inches tall and weighing approximately 180 pounds.
Rousseau testified that, at the hospital, Otero told him that he did not think that he could identify any of his attackers. We know from the record that, at the time of the attack Otero was thirty-six years old, and so he was describing the two males who attacked him as eight to nine years younger than he was. We know, as well, from the record, that, on February 15, 2008, the defendant was thirty-seven years old, or nine to ten years older than the assailant initially described by Otero on the day of the incident. While, in other respects, Otero’s description of his initial assailant appears to be consistent with the defendant (as well as with the other male who is described), we do not have, from the record, any reference data with which to draw any conclusions regarding the relative distinctiveness of the assailant’s description.
D
The Level of Certainty Demonstrated at the Confrontation
This factor warrants little discussion because, at the time of the confrontation, Otero was told, and not asked, by Bilbo that the photograph he was being shown was that of the defendant and that the defendant was a suspect in the case whose arrest Bilbo was seeking. We know, as well, that before this procedure, Otero had heard from “[s]econd, thirdhand” sоurces that the defendant had been involved in the altercation and that Otero, in fact, had relayed the defendant’s name to the police. Therefore, Otero went to the police department with the defendant in his mind as one of the assailants, a belief that immediately was buttressed by Bilbo’s confirming to him that the defendant was a suspect whose arrest he was in the process of seeking.
E
The Time Between the Crime and the Confrontation
The next consideration relates to the timing of the identification. As noted, by June, 2008, following the February, 2008 incident, Bilbo was in possession of a photographic array that included a photograph of the defendant. Otero, however, was not shown the array, and instead, he was shown a single photograph of the defendant months later.
The New Jersey Supreme Court, in a recent opinion, fashioned a protocol for police identification procedures. The court observed: “Memories fade with time. And as the [s]pecial [m] aster observed, memory decay ‘is irreversible’; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability. That basic principle is not in dispute.” State v. Henderson, supra,
At trial, the court’s assessment of reliability required a balancing analysis. Now, we, too, must do so on review of this mixed question of law and fact.
Contrary to the finding by the trial court, our application of the factors listed in Manson v. Brathwaite, supra,
We turn now to the question of harm. At the outset, we note that our Supreme Court has, as a matter of policy, emphatically rejected the notion that the doctrine of harmless error is available to uphold a conviction in which the trial court admitted unnecessarily suggestive and unreliable witness identification testimony. State v. Gordon, supra,
Our Supreme Court recently has stated: “When an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . [W]e must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered
In analyzing harm in other constitutional contexts, our Supreme Court has also opined: “Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Emphasis added; internal quotation marks omitted.) State v. Rolon,
The relationship between properly admitted evidence and improperly admitted evidence impheating a constitutional right is significant to our analysis. While consideration of both the good and bad evidence is appropriate, the properly admitted evidence has to be beyond strong in order to uphold a conviction. In State v. Angel T.,
Even though we are persuaded that the legal posture of the case at hand is indistinguishable from Gordon, we conduct a harmless error analysis. At the outset, we note that the state’s case against the defendant was not overwhelming. To the contrary, there was no physical evidence at the scene, nor was there any forensic evidence. No knife or any dangerous instrumentality was found at the crime scene or connected to this incident, and there were no statements from the defendant. Rather, the state’s evidence consisted, mainly, of the testimony of Otero and Miaño. The state’s additional witnesses, with one exception, were all police officers whose information, in large measure secondhand, came from Otero and Miaño. The one witness for the state who was not a police officer, Rego, an employee of Club Blu, testified regarding the physical layout of the scene and the injury to Otero’s thumb and stomach, evidence that did not, in any manner, implicate the defendant.
As to Miaño, a fair review of her testimony reveals that she stated that the defendant traveled with her and others to and from the area of the altercation on the night in question. She placed the defendant at the scene of the altercation and as a participant. However, her testimony regarding the circumstances of the altercation was confused and imprecise, her ability to observe the events accurately wаs unclear, and her familiarity with Otero together with her relationship with Robert Acevedo reasonably could have put her objectivity in doubt for the fact finders.
Furthermore, Miaño testified that she, together with the defendant and two others, Robert Acevedo and Anna Acevedo,
As to the altercation itself, Miaño acknowledged that when she, Robert Acevedo and Anna Acevedo got into the automobile, she was uncertain of the defendant’s whereabouts and was unsure as to whether the defendant had gotten into the automobile before the altercation took place. Although Miaño asserted that the defendant was present during the altercation and that she saw one of the two men push the other, she also acknowledged that she did not see the argument that she claimed occurred between the defendant and Otero, or the physical altercation that she claimed took place between them.
Additionally, from our review of Miano’s testimony, we acknowledge that the jury could have resolved any credibility and impartiality issues in favor of believing her testimony and could have drawn reasonable inferences from it, and, on that basis alone, the evidence may have been sufficient to sustain the jury’s guilty verdict. Our conclusion that the jury could have found the defendant guilty on the basis of Miano’s and other properly admitted testimony should not, however, be equated with a finding that the properly admitted evidence of the defendant’s guilt was so overwhelming that we can determine, beyond a reasonable doubt, that it was not a factor in the jury’s verdict. Indeed, the state’s evidence was far from overwhelming.
As noted, harmlessness must be analyzed in context. Thus, in order to affirm the judgment, we must be able to declare that, in light of the propеrly admitted evidence, the improperly admitted evidence could not have affected the jury verdict. State v. Gonzalez, supra,
The point made by Justice Brennan and echoed by Justice Richard N. Palmer in his concurrence in State v. Outing, supra,
On the basis of our review of this record, we are рersuaded that there is no reasonable basis to conclude that the jury was not likely influenced by Otero’s improperly admitted out-of-court and in-court identifications of the defendant. We conclude, therefore, that, to the extent the improper admission of unreliable identification evidence is subject to harmless error analysis on appeal, the state has not met its burden of demonstrating beyond a reasonable doubt that the court’s incorrect admission of Otero’s identifications of the defendant constituted harmless error.
The judgment is reversed and the case is remanded for a new trial.
In this opinion PETERS, J., concurred.
Notes
Prior to oral argument in this court, the defendant withdrew his claim that the trial court abused its discretion by denying his motion for rectification in which he had asked that the record reflect that he has four gold front teeth.
Miaño testified that Robert Acevedo’s nickname or street name is Hershey. Otero, on the other hand, was under the impression that Hershey was the defendant’s street name.
The photograph was admitted into evidence.
In his report, Robles noted that two of the participants were dressed in red minidresses. The photograph that Otero took of Miaño and Anna Acevedo reveals that the two women were wearing red minidresses.
Miaño testified that when she got into the Infiniti, Anna Acevedo stated:
“I’m gonna beat your blank when we get out of the car.”
It should be noted, however, that on direct examination Miaño stated that she did see Mood on the defendant’s shirt after the altercation. On cross-examination, though, she admitted that she had not, in fact, seen any blood on the defendant.
Robert Acevedo and Anna Acevedo also were arrested and charged in separate files. Robert Acevedo pleaded guilty to conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (4) and was sentenced to five years in prison. Anna Acevedo pleaded guilty to assault in the third degree in violation of General Statutes § 53a-61, reckless endangerment in the first degree in violation of General Statutes § 53a-63, unlawful restraint in the second degree in violation of General Statutes § 53a-96, threatening in the second degree in violation of General Statutes § 53a-62 and breach of the peace in the second degree in violation of General Statutes § 53a-181. She received suspended sentences. Neither Robert Acevedo nor Anna Acevedo testified at trial.
The defendant was not charged with use of a deadly weapon.
General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids anotherperson to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument . . . .”
The court stated, as a preliminary matter, that “[i]t is enough for the state to prove that the defendant, acting with the intent to cause serious physical injury to [Otero] . . . intentionally aided another person to cause serious physical injury to [Otero] by means of a dangerous instrument.”
There is no evidence of the type of instrument that caused Otero’s injuries. Throughout his brief the defendant argues that there was no evidence that he knew one of the other assailants had a knife and, in making this argument, he attempts to distinguish the knowing presence of a knife from that of a gun. Prom the nature and extent of Otero’s injuries, the jury reasonably could infer that a dangerous instrument was used and that the defendant was aware of the use of a dangerous instrument by one of the assailants. See State v. Barnett,
The issue in Gonzalez concerned a jury instruction regarding an element of the offense of manslaughter in the first degree with a firearm; see General Statutes §§ 53a-8 and 53a-55a; “namely, the defendant’s intention that the principal would use, carry or threaten the use of a firearm during the commission of the offense.” State v. Gonzalez, supra,
General Statutes § 53a-55a (a) provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .”
The state conceded at oral argument that the identification procedure employed by Jeremy Bilbo, a Hartford police detective, was unnecessarily suggestive.
We note that at trial, understandably, the state did not provide any evidence that the in-court identification was untainted by the unreliable and unnecessarily suggestive out-of-court identification, as the trial court had determined that the out-of-court identification was reliable. Nevertheless, on review, and in light of our determination that the admission of the out-of-court identification was improper, we review the record to determine if, in fact, the state satisfied its burden of proving that the in-court identification was untainted. Because the state made no effort to do so and the record reflects this lack of effort, we conclude that the state did not show, at trial, that the in-court identification was free of taint.
While we recognize that the court found and the state has conceded that the pretrial identification procedure was unnecessarily suggestive, we briefly explore this issue as a preface to our later discussion of whether the record supports a conclusion that, in assessing reliability, the court properly weighed the factors for admissibility against the corrupting influence of the pretrial identification procedure utilized in this instance.
Later in the trial, Miaño testified that Hershey was the street name for Robert Acevedo, who she said had been her boyfriend at the time of the incident and the operator of the car that nearly struck Otero.
The record reveals that the court conducted the hearing on the defendant’s motion to suppress after the trial had commenced and following the testimony of Rivera.
The lexicon of witness identification does not fit the factual circumstances we confront. When Otero told Bilbo that he had heard from the street of the defendant’s involvement in the incident and he had learned that the defendant was incarcerated, Bilbo, in turn, confirmed Otero’s belief and buttressed it by stating that he was seeking the defendant’s arrest while simultaneously displaying a photograph of the defendant wearing a shirt with the word “Artis” across its front. What ensued could more fairly be termed a “confirmation” rather than an identification. Nevertheless, the court determined that it was an identification. As such, its use at trial became a leg of the state’s proof. Because neither party disputes the court’s characterization of this event as an identification, we, too, treat it as the same for the purposes of this appeal.
At trial, Bilbo claimed that he did not show the photograph of the defendant to Otero for identification purposes but, rather, only for information purposes to bring Otero abreast of the investigation, as Otero had been interested in the investigation. He explained that he was simply trying to inform Otero that the case was progressing, that the defendant was a suspect whose arrest he would be seeking and that it was only in this context that he showed the defendant’s photograph to Otero. Despite this unusual claim, the state offered Otero’s identification of the defendant from this photograph as an out-of-court identification and argued to the jury in the same vein. The court charged, as well, that this was evidence of an out-of-court identification of the defendant by Otero. Therefore, notwithstanding Bilbo’s claim to the contrary, Otero’s “identification” of the defendant in response to seeing his photograph while being told simultaneously by Bilbo that it was, in fact, a photograph of the defendant, became part of an essential element of the state’s case identifying the defendant as a participant in the assault.
Contrary to the dissent’s assertion, our analysis tracks the court’s factual findings, parting from them only where specifically noted on the ground that the findings are erroneous. We do not, however, accord deference to the court’s analysis of those factual findings, the weight accorded to them by the trial court in its assessment of reliability, and the court’s balancing, if any, of these factors with the corrupting influence of the identification procedure, as that analysis, on appeal, rеquires de novo review. “The ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact. Thus, we give deference to the trial court’s finding of historical fact . . . but may give different weight to those facts and may reach a different conclusion.” (Internal quotation marks omitted.) State v. Marquez, supra,
The dissent attempts to minimize the significance of the court’s erroneous factual conclusion regarding the amount of alcohol consumed by Otero as a “likely error in finding that the victim consumed only a couple of beers that night . . . .” (Internal quotation marks omitted.) The dissent fails to note that Otero acknowledged not only that he consumed four, twelve ounce bottles of beer but that he did so in the time of approximately one and one-half hours immediately preceding the assault. Finally, the dissent seeks to marginalize this issue by noting Otero’s testimony, notwithstanding the absence of any corresponding court finding, that, at the time of the assault, he weighed 250 pounds, as though his weight alone, if proven, would eliminate the impact of Otero’s alcoholic consumption. Most importantly, it is not evident from the record that the trial court gave any consideration to the likely effect on Otero of his consumption of forty-eight ounces of beer in a period of less than two hours immediately preceding the attack. Rather, the court appears to have relied on a lack of direct evidence to conclude that the alcohol consumption did not impact Otero’s powers of concentration and observation in any manner at all.
See generally J. Dysart, R. Lindsay, T. MacDonald & C. Wicke, “The Intoxicated Witness; Effects of Alcohol on Identification Accuracy from Showups,” 87 J. Applied Psychol. 170, 174 (2002); see also G. Wells, A. Memon & S. Penrod, “Eyewitness Evidence: Improving Its Probative Value,” 7 Psychol. Sci. in the Pub. Int. 2, 54 (2006).
On October 16, 2009, Otero stated that the fistfight alone lasted ten seconds. On October 19, 2009, Otero testified that it was no more than ten seconds from the time the passenger emerged from the front passenger seat of the automobile until he was struck from behind. On that same date, he testified that he and his assailant exchanged words for “not even two seconds” before the fistfight started in which the assailant struck the first blow to his face.
Although this testimony took place before the court in the absence of the jury, it is nevertheless pertinent to our inquiry, as our review focuses on the court’s determination of reliability and not on the jury’s ultimate conclusions.
We acknowledge that both this court and our Supreme Court have found that a mere matter of seconds can provide a proper opportunity for a witness to view an assailant or incident. See State v. Piskorski, supra,
Of course, Otero’s selection of the photograph of Robert Acevedo as looking, in appearance, similar to his attacker, is particularly interesting, as Rivera, the first police officer to arrive at the scene of the altercation, reported that Otero initially claimed that he had been attacked by the vehicle’s operator, whom Miaño identified as Robert Acevedo and whose descrip-tíon fits the defendant’s with the possible exception of the defendant’s freckled facial complexion.
In its factual findings attendant to its ruling on the defendant’s motion to suppress, the court incorrectly determined that Bilbo testified that Miaño told him that the defendant had been the front seat passenger. From our review of the record, we find no such testimony from Bilbo. In fact, to the contrary, Miaño testified that she had been the front seat passenger. While this erroneous factual discrepancy may seem trivial, it takes on more importance in light of subsequent descriptions of the physical characteristics of Robert Acevedo and the defendant. As noted, Otero told the first responding officer that the initial assailant had been the driver of the vehicle and described him as a light-skinned black male, approximately twenty-seven to twenty-eight years old and 180 pounds. The other male in the vehicle was described similarly, except that his weight was put at 200 pounds, a weight the court characterized as fitting the defendant “right on the button . . . .”
If the evidence that the initial aggressor was the car’s driver and the general description points to Robert Acevedo as the initial aggressor, the state’s case against the defendant is substantially weakened, as Otero was not able to provide any closeup description of the subsequent assailants due to the fact that they attacked him from behind.
In State v. Outing, supra,
The literature of social science is in accord. See G. Wells, A. Memon & S. Penrod, “Eyewitness Evidence: Improving Its Probative Value,” 7 Psychol. Sci. in the Pub. Int. 2, 52-53 (2006); see also C. Morgan HI, G. Hazlett, A. Doran, S. Garrett, G. Hoyt, P. Thomas, M. Baranoski & S. Southwick, “Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress,” 27 International J.L. & Psychiatry 265, 274 (2004) (“[c]ontrary to the popular conception that most people would never forget the face of a clearly seen individual who had physically confronted them and threatened them for more than 30 min[utes] . . . [t]hese data provide robust evidence that eyewitness memory for persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error”).
While an initial description of the assailant as 180 pounds differs only slightly from a description of the assailant as weighing 200 pounds, the difference has added meaning to a fact finder attempting to distinguish between two men whose descriptions are otherwise very similar, as is the case with the defendant and Robert Acevedo.
Although Manson v. Brathwaite, supra,
As noted by Justice Richard N. Palmer’s concurrence in Outing, social science research has demonstrated that “a witness may develop unwarranted confidence in his or her identification if he or she is privy to postevent or postidentification information relating to thе event or to the identification . . . .” State v. Outing, supra,
In weighing this criterion, we are mindful that studies conducted since Manson and decisional law have cast doubt on the correlation between certainty of identification and accuracy. See A. Bradfield, G. Wells & E. Olson, “The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy,” 87 J. Applied Psychol. 112 (2002); G. Wells & A. Bradfield, “ ‘Good, You Identified the Suspect’: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience,” 83 J. Applied Psychol. 360 (1998); G. Wells, M. Small, S. Penrod, R. Malpass, S. Fulero & C. Brimacombe, “Eyewitness Identification Procedures: Recommendations for lineups and Photospreads,” 22 L. & Hum. Behav. 603, 635 (1998) (“confidence statements from eyewitnesses can be affected dramatically by events occurring after the identification (postidentification events) that have nothing to do with the witness’s memory”); see also G. Wells, A. Memon & S. Penrod, “Eyewitness Evidence: Improving Its Probative Value,” 7 Psychol. Sci. in the Pub. Int. 2, 65 (2006) (“[t]hough confidence-accuracy correlations are sometimes relatively high, most research yields relatively low correlations”); K Deffenbacher, “Eyewitness Accuracy and Confidence: Can We Infer Anything About Their Relationship?” 4 L. & Hum. Behav. 243 (1980); R. Lindsay, G. Wells & C. Rumpel, “Can People Detect Eyewitness-Identification Accuracy Within and Across Situations?” 66 J. Applied Psychol. 79, 80-82 (1981); State v. Henderson, supra,
Suffice to say, it is doubtful that much reliance should be placed on the certainty of a witness who has been told repeatedly by associates in the community and then by the police that an individual was involved in the assault upon him before being shown that individual’s photograph while simultaneously identifying him by name and as a suspect about to be arrested in connection with the offense under investigation.
The timing of Bilbo’s display of the defendant’s photograph to Otero was confused at trial. Although Otero testified to his belief that he was shown this photograph in May, 2008, on the same day that he was shown a photographic array that did not include a photograph of the defendant, Bilbo testified that he showed the photograph of the defendant to Otero six or seven months later. While not drawing any conclusion as to the exact date on which Bilbo first showed Otero a photograph of the defendant, and although acknowledging that the time between the assault and the single photograph identification “might be viewed as inordinate,” the court dismissed the significance of this factor in light of Otero’s opportunity to view his assailant and the level of certainty of his identification. Thus, the court appears to have dismissed this factor as relatively insignificant. Most importantly, because the court did not make a factual finding as to when the defendant’s photograph was shown to Otero, it was not in a position to assess this factor fairly.
Because the determination of reliability involves a mixed question of fact and law, our review is plenary. State v. Outing, supra,
The state attempts to avoid the holding of Gordon by asserting that Gordon was tacitly overruled in State v. Milner,
To be sure, neither we nor the dissent have been able to find any other cases in which Gordon has been overruled or where the court has ruled in a manner inconsistent with Gordon’s holding. To the contrary, the court, in State v. Perez,
Finally, on this point, the dissent suggests, as a reason for not following Gordon's precedent, that no other jurisdiction has followed Gordon and that harmless error is available for all but structural constitutional principles. From a constitutional perspective, we do not disagree. As noted by the dissent, the United States Supreme Court, in Arizona v. Fulminante,
Furthermore, in the cases we have reviewed, the issue confronted in Gordon and which we now face has not been reached because the reviewing court has held either that the pretrial identification procedure was not unnecessarily suggestive; see State v. Holliman,
Accordingly, on the basis of our review of decisional law, while the case at hand may present, perhaps, the first circumstance in which Gordon’s holding is directly applicable, we find no support for the notion that the holding of Gordon should be discarded on the ground that the strong policy it enunciates has been eroded by the passage of time or by new information that yields misidentification testimony less of a concern to the criminal justice process. To the contrary, over the intervening decades the increased awareness of the impact and yet fallibility of eyewitness identification has been brought to light through widely accepted research and significant improvements in DNA analysis. These developments would appear to suggest the need for more heightened safeguards regarding witness identification procedures and not a relaxing of the court’s tolerance for improper police procedures.
In suggesting that, perhaps, harmless error analysis should be available in cases in which there is more than one eyewitness, the dissent appears to be conflating the nature of harmless error analysis with whether such an analysis is appropriate in the first place. Obviously, if harmless error is available in all situations involving the admission of an unnecessarily suggestive and unreliable identification procedure, the presence of other eyewitness testimony would tend to make the one faulty identification less crucial to the state’s case. But that observation concerns the process of such an analysis. Indeed, the Gordon court found that the evidence of the defendant’s guilt was substantial. That conclusion, contrary to the dissent’s implication, does not render specious the Supreme Court’s policy of not affirming convictions involving the admission of unreliable and unnecessarily suggestive identifications. Therefore, and contrary to the dissent’s claim, application of the policy enunciated in Gordon is not absurd. Indeed, the availability of overwhelming admissible evidence of a defendant’s guilt should, in prudence, eliminate the proffer of inadmissible evidence and should also discourage law enforcement from procedures that jeopardize fundamental constitutional rights. If such a policy is to be deemed absurd, that conclusion is not ours to make.
Miaño testified that Robert Acevedo drove the four of them to the club in Hartford in his silver Infiniti automobile. Robert Acevedo was the boyfriend of Miaño at the time of the incident, and Anna Acevedo is Robert Acevedo’s sister.
Miano’s testimony about the initial pushing between the defendant and Otero is somewhat muddled. Initially, she stated that she saw the defendant push Otero, but later she stated that Otero pushed the defendant. Elsewhere, as noted, Miaño indicated that she did not see the altercation between the two.
Concurrence Opinion
concurring in part and dissenting in part. I agree with the majority that the trial court properly denied the motion for a judgment of acquittal, postver-dict, filed by the defendant, Troy Artis, as to the charge of accessory to assault in the first degree by means of a dangerous instrument and, therefore, join in part I of the majority opinion. Because I believe that the trial court did not abuse its discretion in admitting the victim’s identification of the defendant and that, even if it did, such error was harmless beyond a reasonable doubt, I respectfully dissent from the remainder of the majority opinion.
I
RELIABILITY OF THE VICTIM’S IDENTIFICATIONS
I do not believe that the trial court abused its discretion in admitting the victim’s out-of-court and in-court identifications as reliable, even though the identification procedure was unnecessarily suggestive. The record adequately supports the subordinate facts found by the court in its meticulous and nuanced oral decision. Additionally, in accordance with the reliability factors set forth in Manson v. Brathwaite,
The standard of review governing the admissibility of an out-of-court identification is well settled. “[B]ecause the issue of the reliability of an identification involves the constitutional rights of an acсused .'. . 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. . . . [T]he 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
“Furthermore, [w] e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where 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 factbound 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.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Ledbetter,
The majority largely ignores the findings of the trial court and substitutes its judgment in place of the court’s findings. Contrary to the majority’s conclusion that many of the court’s findings were clearly erroneous, I believe that they are adequately supported by the record. See State v. Wheat,
“[Reliability is the linchpin in determining the admission of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of [the victim’s] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) Id., 553. Our Supreme Court recently held that this standard, originally derived from Neil v. Biggers,
A
The Victim’s Opportunity to Observe the Assailant
Regarding the first reliability factor, the victim’s opportunity to observe the assailant at the time of the crime, the court found that there was sufficient lighting for the victim to observe the defendant’s face. As noted by the majority, Jose Rivera, a Hartford police officer, testified that, in his experience, the area where the incident occurred is well lit. Hector Robles, another Hartford police officer, testified that he saw a scuffle, which included two women in red minidresses, from approximately 150 feet away and that, after breaking up the fight, three people entered a newer model gray Infiniti automobile and drove away. Later in the evening, Robles discovered a trail of blood splatter, which he followed “down to the northeast comer of High and Allyn” Streets in Hartford near the site of the altercation at issue. Robles’ ability to observe both the scuffle from 150 feet away and the trad of blood supports the court’s finding that the area was sufficiently well lit for the victim to see the defendant’s face. Additionally, as explained by the trial court, the victim’s ability to observe the make and color of the car and his ability to describe the assailant’s face as freckled “is also indicative of sufficient opportunity and illumination to observe from a slight distance of at most a few feet.” Therefore, there is clearly adequate support for the court’s finding that there was sufficient fighting for the victim to observe the defendant’s face.
B
The Victim’s Degree of Attention
Regarding the second factor, the victim’s degree of attention, the court found that the victim “got a good hard look at his assailant.” The court cited the evidence that the victim provided a description of the assailant’s freckles, which “confirms that his concentration was on the perpetrator’s face . . . .” The court also cited the evidence that “the victim and the other person were face to face at a very slight distance from one another [in] afistfight, arm’s length apart.” Therefore, according to the court, the evidence “clearly establishes that the victim’s concentration was on and directed toward the face of the person with whom he was fighting.”
The majority, however, asserts that the court “made no explicit determination of the length of time [the victim] and his assailant were face-to-face” and “substantially compressed the time period in which a victim may be found to have a ‘good hard look.’ ” I disagree. I believe that the court found that the victim and his assailant were face to face for a period of five to ten seconds.
The majority further asserts that the incident lasted only “a few seconds ... in the context of a heated verbal exchange during which [the victim] was struck twice by his assailant, in the shoulder and facial area, and during which [the victim] struck the assailant two times,” and that, in light of the stress of the incident, the accuracy of the victim’s observation and recall was compromised. This court, however, is not permitted to engage in speculation or fact-finding. Because “a trial court is far better equipped than this court to make” factual determinations; (internal quotation marks omitted) State v. Ledbetter, supra,
C
Accuracy of the Victim’s Prior Description of the Assailant
As to the third factor, the accuracy of the victim’s prior description of the assailant, the court found that the description given to Rousseau “was entirely accurate with reference to race, gender, height . . . and weight.” The court also stated: “Based on my observation of the defendant in the course [of] trial . . . the description, ‘a stocky build,’ was entirely accurate.” Moreover, the court explained, “most importantly, the victim did describe the one salient, distinguishing facial feature, a freckled face.”
D
Level of Certainty Demonstrated at the Identification
Regarding the fourth factor, the level of certainty,
The majority states that this factor “warrants little discussion because, at the time of the confrontation, [the victim] was told, and not asked, by Bilbo that the photograph he was being shown was that of the defendant and that the defendant was a suspect in the case whose arrest Bilbo was seeking.” The corruptive influence of the suggestive procedure, although undoubtedly relevant to the ultimate determination of reliability, does not, under present law, negate the court’s finding that the victim had a high level of certainty as to the identification. The trial court was in a better position to determine the credibility of the victim’s testimony regarding his certainty; see State v. Garcia,
E
Time between the Crime and the Identification
Regarding the last factor, the time between the incident and the identification, it is unclear what the court found as to the date of the identification. The victim and Bilbo gave contradictory testimony regarding when the identification procedure occurred. The victim stated that the identification occurred on May 28, 2008, whereas Bilbo stated that it occurred six or seven months after June 5, 2008, in the late fall or early winter of 2008. In its findings, the court recounted this contradictory testimony but never explicitly stated which date it found more credible.
F
Ultimate Determination of Reliability
Certainly, there are valid reasons to question the reliability of the victim’s identification, namely, the highly suggestive identification procedure, the nine year age discrepancy in the victim’s description,
A comparison of the facts of tMs case to other Connecticut cases in wMch tMs court and our Supreme Court have concluded that the identification was sufficiently reliable supports the trial court’s conclusion that the identification was reliable. In State v. Ledbetter, supra,
Applying the Manson reliability factors and indulging “in every reasonable presumption in favor of the trial court’s ruling”; (internal quotation marks omitted) id., 648;
II
HARMLESS ERROR ANALYSIS
Even assuming that the trial court improperly admitted the victim’s out-of-court and in-court identificatiоns, I believe that harmless error analysis is available and that the court’s error was harmless beyond a reasonable doubt because of Christina Miano’s identification testimony.
The majority relies on State v. Gordon,
On a more fundamental level, since it was decided, Gordon has never once been applied to reverse a conviction, much less a conviction involving an assailant known by one of the witnesses. Just six years and seven months after Gordon was decided, our Supreme Court in State v. Milner,
Interestingly, Gordon is one of the cases cited by the court in Milner in the previous quotation. See State v. Milner, supra,
The majority notes that Gordon was cited approvingly in State v. Perez,
Moreover, the legal landscape supporting the premise of the Gordon holding — that, when a defendant’s constitutional rights have been violated, harmless error analysis is the exception to the general rule, only to be used “sparingly, in a few, discrete circumstances”; State v. Gordon, supra,
As explained in State v. Lopez,
Therefore, the statement in State v. Gordon, supra,
Applying the harmless error doctrine to this case, and conceding that the state’s burden is a heavy one, I conclude nonetheless that any error in admitting the victim’s identification was harmless beyond a reasonable doubt. The following standard of review governs this issue. “The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . When an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Gonzalez,
My conclusion that the admission of the victim’s identification was harmless is grounded in the fact that the jury heard testimony from Miaño, an eyewitness who knew all of the parties involved in the incident and spent a significant amount of time with the defendant on the night in question. Miaño provided the following relevant testimony. On the night in question, she traveled with her then boyfriend, Robert Acevedo; Robert’s sister, Anna Acevedo; and the defendant, who was Anna Acevedo’s boyfriend at the time. The four rode in Robert Acevedo’s silver Infiniti automobile to Club NV. While inside Club NV, Miaño briefly visited with the victim, who was good friends with the father of Miano’s children. After Robert Acevedo attempted to hit the victim with his automobile in retaliation for speaking
Although, as the majority points out, Miano’s testimony is less than clear as to exactly what occurred during the attack, she unhesitatingly identified the defendant as the individual engaged in the one-on-one altercation with the victim, testifying that she did not have any doubts that the defendant was the first person out of the automobile confronting the victim. She also clearly identified the defendant as one of the three individuals “around” the defendant when he was on the ground.
The defendant was not convicted of stabbing the victim, as the court granted the defendant’s motion for a judgment of acquittal as to the charge of assault in the first degree while aided by two or more persons. The defendant was convicted only of accessory to assault in the first degree by means of a dangerous instrument.
Thus, at the least, the jury could have inferred on the basis of the testimony of the victim and Miaño that the defendant struck the victim while he was on the ground, that the defendant intended to aid Robert Acevedo or Anna Acevedo in causing serious physical injury to the victim, and that Robert Acevedo or Anna Acevedo used a dangerous instrument to cause the serious physical injury. The victim testified, however, that he had no idea who stabbed him or who was hitting him after he was on the ground.
Finally, I underscore that this is not a case in which the victim was the only witness to idеntify an unknown assailant. It also is not a case in which a witness obtained a fleeting glance of an anonymous bank robber. See State v. Ledbetter, supra,
In light of the likely impact of the victim’s identification and the result of the trial, I believe that any error did not contribute
I would affirm the judgment of the trial court.
It is important to remember that the trial court’s findings only were for the purpose of ruling on the defendant’s motion to suppress the victim’s identifications. After a trial court makes the threshold determination of reliability, it is ultimately up to the jury to make credibility assessments, weigh the evidence and decide, on its own, whether the identification was sufficiently reliable. See State v. Outing, supra,
The victim initially testified that he only had “[a] couple beers.” In light of his subsequent clarification, however, it seems probable that he had at least four beers.
The court stated: “It is recognized that the defendant’s viewing of his opposing combatant was veiy brief, according to [the victim] — a duration of five or ten seconds.” (Emphasis added.) The court also stated, earlier in its oral findings, that “[p]unching continued for approximately ten seconds.”
State v. Cubano, supra,
The majority also cites “the conflicting testimony regarding the location of the assailant immediately before the incident” as “erod[ing] confidence in the accuracy of [the victim’s] observations at the moment.” I do not agree. Trial courts often are tasked with sorting through conflicting testimony to reach factual conclusions. See State v. Jimenez,
The court noted that “there was no evidence that the defendant had any other conspicuous features, facial or otherwise, that would or should have been noticed in these circumstances: tattoos, scars — dental abnormalities, et cetera. And similarly, there was no evidence [that the defendant] customarily [wore] any distinctive attire or jewelry, scarf, bandana, gold chain, earring, et cetera.”
1 recognize that our Supreme Court and the high courts of our sister states have considered the growing body of scientific knowledge regarding the ability of an eyewitness to recall events and that the area of eyewitness identification is undergoing some long overdue and much-needed reevaluation. See Eyewitness Identification Task Force, state of Connecticut, Report Pursuant to Public Act 11-252, § 2 (February 8, 2012) available at http:// www.cga.ct.gov/jud/eyewitness/docs/Final%20Report.pdf (last visited February 21,2012) (recommending mandatory sequential rather than simultaneous presentation of photographic arrays using double-blind procedure or, if not practicable, blind procedure); Substitute House Bill No. 5501, February Sess. 2012 (adopting recommendations of eyewitness identification task force); Report on Bills Favorably Reported by Committee, Judiciary, House Bill No. 5501 (April 5, 2012). These courts have noted that a victim’s degree of certainty may not be a valid predictor of reliability. See State v. Ledbetter, supra,
The victim was asked during cross-examination: “You wanted someone arrested for this. Right?” The victim responded: “Not just anyone, just justice.” The court’s credibility determination is also supported by the fact that the victim freely admitted when he could not identify individuals. The victim explained that during the investigation, also conducted by Bilbo, into an unrelated incident in which the victim was shot, he could not identify any individuals because he focused on the gun rather than the assailant’s face. Additionally, after examining a photographic array containing Robert Acevedo’s photograph, the victim told Bilbo that he could not identify anyone but that two photographs, one of which was Robert Acevedo’s, looked most like an individual involved in the incident.
The court did, however, find the victim’s testimony more credible than Bilbo’s as to whether the victim actually identified the defendant.
The court also noted that the victim’s description did not include any clothing description. It explained, however, that prior to being hit from behind, the victim was focused directly on the assailant’s face rather than on his clothing.
Other cases with arguably weaker indicia of reliability include State v. St. John,
In State v. Liptak, supra,
Although I recognize that I need not address the issue of harmlessness in light of my conclusion that the victim’s identifications properly were admitted, I nonetheless choose to express my view on this topic because it presents an alternate ground for affirming the judgment of the trial court.
The trial court found that the police built their case on the information furnished by Miaño. I also note, as discussed herein, that while Miaño unambiguously identified the defendant as one of the individuals engaged in the three-on-one altercation while the victim was on the ground, the victim admitted that he could not identify any of the individuals who struck him when he was on the ground.
I respectfully disagree with the majority’s contention that this quotation from Milner is mere dicta. See Voris v. Molinaro,
Gordon, well-intentioned though it may have been, essentially has been ignored from the start. Research has failed to locate a single other jurisdiction that follows the rule that harmless error analysis is unavailable when an identification is found to be both unnecessarily suggestive and unreliable. Moreover, application of this rule would lead to absurd results in some cases. For example, imagine a bank robbery case in which the out-of-court identification made by a teller is unnecessarily suggestive and unreliable but is admitted at trial. The bank robber is clearly depicted on videotape; he is found outside the bank in possession of marked bills; his mother testifies that he admitted to her that he robbed the bank; five independent witnesses who were inside the bank identify him and he confesses on television. Under Gordon, harmless error analysis would not be available following a conviction of the bank robber, and this court would be required to reverse the conviction.
The majority dismisses the fact that Connecticut appellate courts “forgo harmless error analysis only in rare instances involving a structural defect of constitutional magnitude”; State v. Jenkins, supra,
The majority states that Miaño “was unsure whether the defendant had gotten into the motor vehicle before the altercation.” Miaño testified that she thought the defendant, who, up until that point was missing, opened the automobile door, never fully sat down, and then exited the automobile.
Mano did pull back from this statement at various times, testifying that while the victim was on the ground, Anna Acevedo, Robert Acevedo, and the defendant were “around him” but that she did not know exactly what they were doing. Later in her testimony, however, Mano testified that she did not have any doubts that Anna Acevedo and Robert Acevedo joined the altercation.
The jury found the defendant not guilty of conspiracy to commit assault in the first degree while aided by two or more persons and conspiracy to commit assault in the first degree with a dangerous instrument.
Defense counsel conducted the following cross-examination of the victim:
“Q. And you testified the other day that after this unknown parly interjected themselves in, now, a second altercation, you never saw the passenger hit you again, did you?
“A. No.
“Q. You don’t — in fact, you don’t know what the passenger did after this unknown person interjected themselves in the altercation, do you?
“A. Correct.
“Q. For all you know, that person could have left the scene.
“A. Yes, sir.”
Miaño testified that she had known the defendant for at least one month prior to the incident and that she “hung out with” him along with Robert Acevedo and Anna Acevedo.
The majority asserts that Miano’s “familiarity with [the victim] together with her relationship with Robert Acevedo reasonably could have put her objectiviiy in doubt for the fact finders.” Contrary to this speculation that Miaño may have been biased in favor of the victim, the jury, in fact, heard evidence indicating that Miaño may have been motivated to minimize the inculpatory nature of her testimony. Miaño testified that she did not want to be involved in the case because she feared her family would face retaliation in response to her cooperation. The majority also emphasizes Miano’s testimony that she was “tipsy” on the night of the incident. Miaño explained, however, that she had no trouble walking, could see clearly, and could hear fine.