State v. Artis ( 2014 )

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STATE OF CONNECTICUT v. TROY ARTIS
(SC 19035)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued December 11, 2013—officially released October 21, 2014
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Anthony Bochiccio, senior assis-
tant state’s attorney, for the appellant (state).
Lisa J. Steele, assigned counsel, for the appellee
(defendant).
Nicole E. Feit and David W. Ogden, pro hac vice,
filed a brief for the American Psychological Association
as amicus curiae.
Todd D. Fernow, Timothy H. Everett and John T.
Walkley filed a brief for the Connecticut Criminal
Defense Lawyers Association as amicus curiae.
Charles D. Ray filed a brief for the Innocence Project
as amicus curiae.
Opinion
PALMER, J. Following an incident in which the defen-
dant, Troy Artis, allegedly aided two other individuals
in assaulting and seriously wounding the victim, Alexis
Otero, a jury found the defendant guilty of accessory
to assault in the first degree by means of a dangerous
instrument in violation of General Statutes §§ 53a-59
(a) (1) and 53a-8 (a). The trial court rendered judgment
in accordance with the jury verdict,1 and the defendant
appealed to the Appellate Court, claiming, inter alia,
that the trial court improperly had denied his motion
to suppress Otero’s out-of-court and in-court identifica-
tions of the defendant as one of his assailants. State v.
Artis, 136 Conn. App. 568, 585, 47 A.3d 419 (2012).
The Appellate Court, with one judge dissenting in part,
agreed with the defendant, concluding that the trial
court’s denial of the defendant’s motion to suppress
Otero’s identifications violated the defendant’s right to
due process because the use of an unnecessarily sugges-
tive procedure by the police rendered the identifications
unreliable. See id., 608. Relying on State v. Gordon, 185
Conn. 402, 441 A.2d 119 (1981), cert. denied, 455 U.S.
989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982), in which
this court concluded that ‘‘sound judicial policy requires
reversal whenever the erroneous admission of an
unnecessarily suggestive and unreliable identification
has violated a defendant’s constitutional rights’’; id.,
420; the Appellate Court reversed the trial court’s judg-
ment. See State v. Artis, supra, 608–609, 613, 617. The
Appellate Court further determined that, even if the
rule of per se reversibility that this court adopted in
Gordon was not applicable, the defendant nevertheless
was entitled to a new trial because the state had failed
to meet its burden of establishing that its use of Otero’s
identification testimony was harmless beyond a reason-
able doubt. Id., 617. We granted the state’s petition for
certification to appeal, limited to the following three
issues: First, ‘‘[d]id the Appellate Court majority prop-
erly determine that admission of [Otero’s] in-court and
out-of-court identifications following a suggestive
police display of the defendant’s photograph was a . . .
due process violation under Manson v. Brathwaite, 432
U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)?’’2 State
v. Artis, 307 Conn. 909, 910, 53 A.3d 999 (2012). Second,
‘‘[i]f the answer to the first question is affirmative,
should this court expressly overrule the holding [in
Gordon] that harmless error review is unavailable for
identification evidence . . . ?’’ Id. Third, ‘‘if so, did the
Appellate Court majority properly determine that the
identification evidence was not harmless?’’ Id. We need
not address the first issue because, even if we assume,
without deciding, that the trial court improperly denied
the defendant’s motion to suppress Otero’s identifica-
tion testimony, we conclude, contrary to our holding
in Gordon, that the improper admission of such evi-
dence is subject to harmless error analysis. We also
conclude that the state’s use of Otero’s identification
testimony was harmless. Accordingly, we reverse the
judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following procedural history and facts that the jury
reasonably could have found. ‘‘At approximately 11 p.m.
on February 14, 2008, [Otero] drove some of his friends
to Club Blu on Ann Street in [the city of] Hartford where
he was sometimes employed as a bouncer. Approxi-
mately [one-half] hour later, Otero walked two blocks
from Club Blu to Club NV near the corner of Allyn and
High Streets.
‘‘[That] same evening, Christina Miano also went to
Club NV together with her . . . boyfriend, Robert
Acevedo, and his sister, Anna Acevedo, and Anna’s boy-
friend, the defendant. Robert Acevedo drove the four
of them to Hartford in his silver Infiniti . . . . At
approximately 11 p.m., as the four walked toward Club
NV, the defendant, who carried a knife on his belt,
asked Robert Acevedo for the keys to the Infiniti so he
could put his knife [away] before undergoing a security
check at Club NV. Miano and Anna Acevedo went on
ahead to Club NV, where they socialized apart from the
defendant and Robert Acevedo.
‘‘Near closing time, Otero, who knew Miano, visited
with her for several minutes. At the time, he [was
unaware] that Miano 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 Miano and Anna Acevedo.
‘‘At closing time, Otero left Club NV to return to Club
Blu. Miano 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 Acev-
edo as the three, uncertain of the defendant’s where-
abouts, waited for him to join them. Miano 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 Miano,
Robert Acevedo thought that Otero had ‘disrespect[ed]’
him by talking with her.
‘‘Shortly thereafter, the defendant opened the rear
passenger door of the Infiniti 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 fist-
fight that lasted somewhere between two and ten sec-
onds. Seconds after the fistfight 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. Miano 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 . . . . Miano then ‘grabbed Anna off’ Otero,
and the two women began to argue. During the assault
on Otero, Miano 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. The defendant, Miano,
Robert Acevedo and Anna Acevedo got into the Infiniti
and drove away. Anna Acevedo continued to express
displeasure with Miano and wanted to fight her. Robert
Acevedo instructed the two women to stop, and he took
Miano to her mother’s home in order to separate the
two women. According to Miano, while they were driv-
ing from the scene, Anna Acevedo asked the defendant,
‘where’d that blood come from?’ Miano stated that she
never looked at the defendant again after he got back
into the automobile. Later, another police officer found
blood splattered on the sidewalk.
‘‘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 . . . and subsequently
was charged3 with assault in the first degree while aided
by two or more persons in violation of . . . § 53a-59
(a) (4), conspiracy to commit assault in the first degree
while aided by two or more persons in violation of
General Statutes §§ 53a-48 and 53a-59 (a) (4), accessory
to assault in the first degree in violation of §§ 53a-8 and
53a-59 (a) (1), and conspiracy to commit assault in the
first degree with a dangerous instrument in violation
of §§ 53a-48 and 53a-59 (a) (1).’’ (Footnotes altered.)
State v. Artis, supra, 136 Conn. App. 570–74.
During trial, the defendant filed a motion to suppress
Otero’s out-of-court identification and to preclude any
in-court identification, claiming that the out-of-court
identification was the product of an unnecessarily sug-
gestive procedure and that any subsequent in-court
identification would be tainted by the improper out-of-
court identification. At the hearing on the defendant’s
motion, Otero testified ‘‘that in the weeks following the
incident he received secondhand and thirdhand reports
. . . [with the] names of people who might have been
involved [in the assault], including the name ‘Hershey,’
which he was told was the defendant’s street name.4
Otero stated that in May, 2008, while at the Hartford
police station, he was shown a photographic array of
eight individuals from which he was not able to make
a positive identification. The defendant’s photograph
was not part of this array. Otero testified that after he
had been told by others, secondhand and thirdhand,
that the defendant had been involved in the attack . . .
he looked the defendant up on the [D]epartment of
[C]orrection website and discovered that the defendant
was incarcerated. He stated that on the day he gave
Hartford Detective [Jerry] Bilbo the defendant’s name,
Bilbo then brought up the defendant’s photograph on
his computer. Otero testified that while he expected to
see several photographs on the computer screen, there
was only one photograph, that of the defendant, and
that upon seeing the defendant’s photograph, he imme-
diately identified him as the initial assailant.
‘‘[Bilbo also testified at the suppression hearing. He
explained] that in May, 2008, he showed Otero a photo-
graphic 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
[that Otero] tentatively selected . . . was that of
Robert Acevedo. Bilbo indicated, as well, that in June,
2008, he prepared a photographic array for Otero and
that this array included the defendant’s photograph.
However, he did not show this array to Otero because
he did not believe that Otero could identify any of his
attackers. Nevertheless, Bilbo testified that six or seven
months later he did show Otero a booking photograph
of the defendant, with the name ‘Artis’ printed across
the front of the shirt of the person depicted, while telling
Otero that it was a photograph of the defendant, that
the defendant was a suspect in the case, and that he
was seeking an arrest warrant for him. Contrary to
Otero’s testimony, Bilbo claimed that Otero was not
able to identify the defendant from this one photograph
even though he told Otero that it was a photograph of
the defendant. Bilbo stated, as well, that when shown
the photograph of the defendant, Otero responded that
he did not know who his attackers were and acknowl-
edged that he could not identify them. Bilbo did not,
at any time before or after he showed Otero the single
booking photograph, display the photographic array to
him that included the defendant’s photograph.
‘‘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 [found] . . . that Otero’s testimony was more
credible in this regard than Bilbo’s. The court, therefore,
concluded that Otero had made an out-of-court pretrial
identification of the defendant as the initial assailant.’’
(Footnotes altered.) Id., 590–92. Following the suppres-
sion hearing testimony, the trial court denied the defen-
dant’s motion to suppress Otero’s out-of-court identi-
fication and to preclude any subsequent in-court identi-
fication of the defendant. Although the trial court found
that Otero’s initial identification of the defendant was
unnecessarily suggestive, the court further determined
that his identification was reliable and, therefore,
admissible, and that any subsequent in-court identifica-
tion of the defendant by Otero also would be admissi-
ble.5 Following the trial court’s ruling, Otero, while
testifying before the jury, identified the defendant as
the man with whom he had engaged in a fistfight before
being repeatedly stabbed. Otero further described his
initial, out-of-court identification of the defendant.
Miano, who testified after Otero, also identified the
defendant, who was well-known to her, as the man who
initially had confronted Otero. In addition, she testified
that, after observing that Otero was on the ground, she
saw Robert Acevedo, Anna Acevedo, and the defendant
fighting with him. Neither Robert Acevedo nor Anna
Acevedo testified at the defendant’s trial. At the conclu-
sion of the trial, the court granted the defendant’s
motion for a judgment of acquittal with respect to the
charge of assault in the first degree while aided by two
or more persons. The jury found the defendant guilty
of accessory to assault in the first degree by means
of a dangerous instrument and not guilty of the two
remaining conspiracy charges.
On appeal to the Appellate Court, the defendant chal-
lenged the trial court’s denial of his motion to suppress.6
In a divided opinion, the Appellate Court majority
agreed with the defendant, concluding that the unneces-
sarily suggestive identification procedure used by Bilbo
had created a substantial likelihood of misidentifica-
tion. See id., 593, 595–617. In reaching its determination,
the Appellate Court majority stated that ‘‘[i]t would be
difficult to conceive of a less neutral or more preemp-
tive identification process than . . . that [employed by
Bilbo]’’; id., 593; and reasoned that the trial court had
‘‘failed to give proper weight to the corrupting effect
of this most inappropriate identification confirmation
procedure.’’ Id., 607–608. ‘‘[A]pplication of the factors
[enumerated] in Manson v. Brathwaite, supra, 432 U.S.
114–16,7 considered against the backdrop of the extraor-
dinarily overbearing manner of the identification proce-
dure, leads [the court] to the conclusion that the pretrial
identification of the defendant by Otero was not reliable
and that Otero’s subsequent in-court identification was
not sufficiently removed from the taint of the earlier
out-of-court identification to be independently reli-
able.’’ (Footnote added.) State v. Artis, supra, 136 Conn.
App. 608.
Adhering to this court’s holding in State v. Gordon,
supra, 185 Conn. 419–20, the Appellate Court majority
also concluded that the defendant was entitled to a new
trial regardless of whether the improper admission of
Otero’s identification testimony was harmless. See
State v. Artis, supra, 136 Conn. App. 608–609, 613. The
court further explained that, even if harmless error
review were applicable to the admission of unnecessar-
ily suggestive and unreliable eyewitness identification
testimony, the state could not meet its burden of demon-
strating that the admission of Otero’s identification tes-
timony was harmless beyond a reasonable doubt. See
id., 617. Specifically, the Appellate Court concluded that
the following factors demonstrated that the improper
admission of Otero’s identification testimony influ-
enced the result of the trial: (1) Otero’s ‘‘identifications
of the defendant were key elements, if not the center-
piece, of the state’s case’’; id.; (2) eyewitness identifica-
tion evidence generally has a powerful influence on a
jury’s deliberations; id., 616; (3) Miano did not provide
strong independent evidence of the defendant’s guilt
because ‘‘her testimony regarding the circumstances of
the altercation was confused and imprecise, her ability
to observe the events accurately was 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’’; id., 614; and
(4) the state had relied on Otero’s testimony in closing
argument to the jury. Id., 616–17.
Judge Lavine dissented in part from the majority opin-
ion of the Appellate Court. He concluded that the trial
court properly had denied the defendant’s motion to
suppress because Otero’s out-of-court identification of
the defendant, although the product of a suggestive
police procedure, was admissible because it bore suffi-
cient indicia of reliability. See id., 618, 629 (Lavine, J.,
concurring in part and dissenting in part). Judge Lavine
further concluded that, even if Otero’s identification
testimony had been improperly admitted, harmless
error review of the state’s use of that testimony was
not barred under Gordon because, inter alia, this court
had overruled Gordon’s rule of automatic reversal sub
silentio in State v. Milner, 206 Conn. 512, 536 n.11, 539
A.2d 80 (1988). See State v. Artis, supra, 136 Conn. App.
632–33 (Lavine, J., concurring in part and dissenting
in part). Judge Lavine finally concluded that the admis-
sion of Otero’s testimony was harmless, stating that,
‘‘[b]ecause the defendant was convicted for his partici-
pation in the three-on-one altercation, and [Otero] could
not identify any of the individuals involved in that alter-
cation, the jury must have believed Miano’s testimony.
Simply put, in light of the other evidence, [Otero’s]
identification of the defendant as the assailant in the
one-on-one altercation provided only incidental support
for the defendant’s conviction.’’ (Emphasis in original.)
Id., 642 (Lavine, J., concurring in part and dissenting
in part).
On appeal to this court following our grant of certifi-
cation, the state first challenges the Appellate Court’s
determination that the trial court improperly had denied
the defendant’s motion to suppress Otero’s identifica-
tion testimony. The state further contends that, even if
that identification testimony was improperly admitted
into evidence, we should expressly overrule Gordon
and reverse the judgment of the Appellate Court
because the admission of Otero’s testimony was harm-
less error. Although it is a close question as to whether
Otero’s out-of-court identification of the defendant was
reliable and, therefore, admissible, despite the proce-
dure by which the police obtained it—a procedure that
the state concedes was unnecessarily suggestive—we
need not decide that issue because, even if we assume
that Otero’s identification testimony should have been
suppressed, the state’s use of that testimony is subject
to harmless error review, and the state has proven
beyond a reasonable doubt that the admission of the
testimony was harmless.8
I
We first address the state’s claim that we should
overrule State v. Gordon, supra, 185 Conn. 419–20, inso-
far as it rejected harmless error analysis in favor of a
rule of per se reversibility in cases involving the state’s
use of unreliable eyewitness identification evidence
that is the product of an unnecessarily suggestive police
procedure. According to the state, ‘‘[r]eversing convic-
tions based on harmless evidence creates, rather than
corrects, erroneous outcomes. . . . The harmless
error doctrine avoids wrongful convictions without giv-
ing guilty perpetrators the windfall of appellate rever-
sal.’’ (Citations omitted; emphasis in original.) The
defendant urges us to decline the state’s request to
reconsider and reject our holding in Gordon because
unreliable eyewitness identification testimony is
‘‘extremely powerful evidence’’ that invariably compro-
mises the jury’s fact-finding function. We agree with
the state that the introduction of such testimony in
violation of a defendant’s right to due process is not
one of the rare instances of structural error in which
the automatic reversal of a conviction is warranted.
Revisiting prior precedent implicates the doctrine of
stare decisis, which ‘‘counsels that a court should not
overrule its earlier decisions unless the most cogent
reasons and inescapable logic require it. . . . Stare
decisis is justified because it allows for predictability
in the ordering of conduct, it promotes the necessary
perception that the law is relatively unchanging, it saves
resources and it promotes judicial efficiency. . . . It is
the most important application of a theory of deci-
sionmaking consistency in our legal culture and . . .
is an obvious manifestation of the notion that deci-
sionmaking consistency itself has normative value.’’
(Internal quotation marks omitted.) State v. Salamon,
287 Conn. 509, 519, 949 A.2d 1092 (2008).
Nevertheless, ‘‘[w]hen a previous decision clearly cre-
ates injustice, the court should seriously consider
whether the goals of stare decisis are outweighed,
rather than dictated, by the prudential and pragmatic
considerations that inform the doctrine to enforce a
clearly erroneous decision. . . . The court must weigh
[the] benefits of [stare decisis] against its burdens in
deciding whether to overturn a precedent it thinks is
unjust. . . . It is more important that the court should
be right upon later and more elaborate consideration
of the cases than consistent with previous declarations.
. . . Moreover, [e]xperience can and often does demon-
strate that a rule, once believed sound, needs modifica-
tion to serve justice better. . . . Indeed, [i]f law is to
have current relevance, courts must have and exert the
capacity to change a rule of law when reason so
requires. . . . In accordance with these principles, we
have not hesitated to revisit and overrule our prior
holdings, including prior holdings applicable to criminal
matters . . . once we are convinced that they were
incorrect and unjust.’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 520–21; see also Jaiguay v.
Vasquez, 287 Conn. 323, 351 n.22, 948 A.2d 955 (2008)
(‘‘[s]tare decisis . . . is neither an end in itself nor an
inexorable command’’). In the present case, we must
decide whether these principles dictate either that we
reaffirm our holding in Gordon or that we overrule it.
In Gordon, a jury found the defendant, Mitchell Gor-
don, guilty of sexual assault in the first degree and
robbery in the third degree predicated on, inter alia,
the victim’s out-of-court identification of Gordon as her
assailant shortly after the incident, as well as her in-
court identification of him. See State v. Gordon, supra,
185 Conn. 403–404, 407, 417–19. On appeal to this court,
we concluded that the initial identification procedure,
pursuant to which officers informed the victim that
Gordon had been located near the scene of the crime
and displayed him alone in a room to the victim from
behind a one-way mirror at the police station, was
unnecessarily suggestive and that the identification was
unreliable. See id., 414–18. We further determined that
the victim’s in-court identification of Gordon was not
based on observation independent of the highly sugges-
tive out-of-court identification procedure. See id., 418–
19. Finally, we rejected the state’s contention that the
admission of the victim’s identifications was harmless
error, stating: ‘‘Ordinarily the burden of establishing
that harm resulted from a trial court error rests on the
appellant. . . . However, there are some constitutional
rights so basic to a fair trial that their infraction can
never be treated as harmless error. . . . If error
touches a less basic constitutional right, we sometimes
apply the harmless error exception, but only sparingly,
in a few, discrete circumstances. . . .
‘‘Thus we refuse to expand our harmless constitu-
tional error doctrine to the discrete circumstances of
unnecessarily suggestive and unreliable identifications,
the admission of which significantly impairs the truth
finding function of the jury. . . . Were we to do so we
would fail to correct negligent infractions of constitu-
tional rights and tempt some public officials to overstep
the law in their zeal to convict the guilty. Some would
yield to such temptation. The devastating nature of both
negligently and deliberately obtained, unreliable eye-
witness identifications would inevitably lead to the con-
viction of innocent persons. Hence sound judicial policy
requires reversal whenever the erroneous admission of
an unnecessarily suggestive and unreliable identifica-
tion has violated a defendant’s constitutional rights.’’9
(Citations omitted; internal quotation marks omitted.)
Id., 419–20.
Upon reexamination of Gordon, we conclude that
its reasoning is fundamentally flawed for two reasons.
First, our holding was based on the faulty premise that
harmless error review only applies ‘‘in a few, discrete
circumstances.’’ (Internal quotation marks omitted.) Id.,
419. As we explain hereinafter, automatic reversal, not
harmless error review, is the exceptional remedy for
instances of constitutional impropriety. Second, the
state’s use of unreliable eyewitness identifications
resulting from unduly suggestive police procedures is
not one of the rare circumstances necessitating a new
trial, as such identification evidence does not inevitably
undermine the integrity or legitimacy of the adjudica-
tory process. Rather, reviewing courts are fully capable
of ascertaining whether the admission of such tainted
evidence, like the improper admission of any other evi-
dence, affected the fact finder’s ultimate determination.
Logic and reason compel the conclusion, therefore, that
appellate courts should not reverse an otherwise trust-
worthy conviction merely because it was based in part
on improperly obtained and unreliable eyewitness testi-
mony, if the state can establish that the erroneous
admission of that evidence was harmless.
Although the court in Gordon concluded that harm-
less error review was applicable only when a defen-
dant’s ‘‘less basic constitutional right[s]’’ are infringed
on; (internal quotation marks omitted) id., 419; we agree
with Judge Lavine that ‘‘the legal landscape supporting
the premise of the . . . holding [in Gordon]—that,
when a defendant’s constitutional rights have been vio-
lated, harmless error analysis is the exception to the
general rule, only to be used sparingly, in a few, discrete
circumstances; [id.]—has changed substantially since
Gordon was decided. As [this court] explained in State
v. Jenkins, 271 Conn. 165, [186–87] 856 A.2d 383 (2004):
It is well settled that most improprieties, even those of
constitutional magnitude, can be harmless and, there-
fore, do not require the reversal of a defendant’s convic-
tion. . . . [T]he appellate harmless error doctrine is
rooted in that fundamental purpose of our criminal
justice system—to convict the guilty and acquit the
innocent. The harmless error doctrine recognizes the
principle that the central purpose of a criminal trial is
to decide the factual question of the defendant’s guilt
or innocence . . . and promotes public respect for the
criminal process by focusing on the underlying fairness
of the trial rather than on the virtually inevitable pres-
ence of immaterial error. . . . Accordingly, we forgo
harmless error analysis only in rare instances involv-
ing a structural defect of constitutional magnitude.
. . . Structural defect cases defy analysis by harmless
error standards because the entire conduct of the trial,
from beginning to end, is obviously affected . . . . Ari-
zona v. Fulminante, [499 U.S. 279, 309–10, 111 S. Ct.
1246, 113 L. Ed. 2d 302 (1991)]. . . .
***
‘‘Therefore, the statement in State v. Gordon, supra,
185 Conn. 419, that Connecticut appellate courts some-
times apply the harmless error exception, but only spar-
ingly, in a few, discrete circumstances, lacks viability.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Artis, supra, 136 Conn.
App. 635–37 (Lavine, J., concurring in part and dis-
senting in part); see also Rose v. Clark, 478 U.S. 570,
579, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (‘‘if the
defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any
other errors that may have occurred are subject to
harmless-error analysis’’).
As Judge Lavine explained, the court’s assertion in
Gordon that appellate courts infrequently apply the
harmless error doctrine to constitutional violations is
an inaccurate statement of the law, at least as that law
has developed since Gordon was decided. In view of
the fact that our holding in Gordon is founded on a
flawed premise, we must determine whether that hold-
ing nevertheless is sustainable on the ground that the
admission of unnecessarily suggestive and unreliable
eyewitness identifications is one of the rare forms of
structural error to which harmless error review does
not apply. As we now explain, the improper admission
of such evidence does not constitute structural error.
We previously have stated that structural defect cases
‘‘contain a defect affecting the framework within which
the trial proceeds, rather than simply an error in the
trial process itself. . . . Such errors infect the entire
trial process . . . and necessarily render a trial funda-
mentally unfair . . . . Put another way, these errors
deprive defendants of basic protections without which
a criminal trial cannot reliably serve its function as a
vehicle for [the] determination of guilt or innocence
. . . and no criminal punishment may be regarded as
fundamentally fair.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Jenkins, supra, 271 Conn.
187. Thus, ‘‘when the consequences of the deprivation
of the defendant’s constitutional right are necessarily
unquantifiable and indeterminate, [the deprivation of
that right] unquestionably qualifies as structural error.’’
(Internal quotation marks omitted.) State v. Lopez, 271
Conn. 724, 738, 859 A.2d 898 (2004). ‘‘A structural error
creates a defect in the trial mechanism such that, while
it is virtually impossible to pinpoint the exact harm, it
remains abundantly clear that the trial process was
flawed significantly. For this reason, [e]rrors of this
magnitude are per se prejudicial and require that the
underlying conviction be vacated.’’ (Emphasis added;
internal quotation marks omitted.) Id., 739. Examples
of such structural errors include, among others, racial
discrimination in the selection of a grand jury or petit
jury and the denial of a defendant’s right to counsel,
right to a public trial, or right to self-representation.
See, e.g., Batson v. Kentucky, 476 U.S. 79, 100, 106 S.
Ct. 1712, 90 L. Ed. 2d 69 (1986) (racial discrimination
in selection of petit jury); Vasquez v. Hillery, 474 U.S.
254, 263–64, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)
(racial discrimination in selection of grand jury); Waller
v. Georgia, 467 U.S. 39, 49 n.9, 104 S. Ct. 2210, 81 L.
Ed. 2d 31 (1984) (denial of right to public trial); Faretta
v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 45 L.
Ed. 2d 562 (1975) (denial of right to self-representation);
Gideon v. Wainwright, 372 U.S. 335, 344–45, 83 S. Ct.
792, 9 L. Ed. 2d 799 (1963) (denial of right to counsel);
see also Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437,
71 L. Ed. 749 (1927) (denial of right to impartial judge).
Another example of structural error, namely, instruc-
tional error concerning the reasonable doubt standard,
is illustrative. As the United States Supreme Court
explained in Sullivan v. Louisiana, 508 U.S. 275, 113
S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the ‘‘right to a jury
verdict of guilt beyond a reasonable doubt is . . . a
basic protection [the] precise effects [of which] are
unmeasurable, but without which a criminal trial cannot
reliably serve its function . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id., 281. The court
further stated that an incorrect definition of reasonable
doubt in a jury instruction ‘‘vitiates all the jury’s find-
ings. A reviewing court can only engage in pure specula-
tion—its view of what a reasonable jury would have
done. And when it does that, the wrong entity judge[s]
the defendant guilty.’’ (Emphasis omitted; internal quo-
tation marks omitted.) Id. Accordingly, the court con-
cluded that ‘‘[t]he deprivation of [the] right [to a jury
verdict of guilty beyond a reasonable doubt], with con-
sequences that are necessarily unquantifiable and inde-
terminate, unquestionably qualifies as structural error.’’
(Internal quotation marks omitted.) Id., 281–82.
In reaching its conclusion, the court in Sullivan dis-
tinguished improper reasonable doubt instructions
from ‘‘errors [that] occur during the presentation of the
case to the jury, and [that] may therefore be quantita-
tively assessed in the context of other evidence pre-
sented . . . .’’ (Citation omitted; internal quotation
marks omitted.) Id., 281. When this type of impropriety
occurs, the defendant’s conviction will not be reversed
if the state demonstrates, in light of independent evi-
dence establishing the defendant’s guilt, that the viola-
tion of the defendant’s constitutional right was harmless
beyond a reasonable doubt. See, e.g., State v. Mitchell,
296 Conn. 449, 459–60, 996 A.2d 251 (2010). As we dis-
cussed previously, most constitutional violations are
subject to such harmless error review. See, e.g., Moore
v. Illinois, 434 U.S. 220, 232, 98 S. Ct. 458, 54 L. Ed. 2d
424 (1977) (harmless error review applies to admission
of pretrial identification in violation of right to counsel);
Milton v. Wainwright, 407 U.S. 371, 377–78, 92 S. Ct.
2174, 33 L. Ed. 2d 1 (1972) (admission of postindictment
confession in violation of right to counsel subject to
harmless error review); Chambers v. Maroney, 399 U.S.
42, 53, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (admission
of evidence in violation of fourth amendment does not
warrant reversal if it was harmless); Harrington v. Cali-
fornia, 395 U.S. 250, 252–54, 89 S. Ct. 1726, 23 L. Ed.
2d 284 (1969) (no reversal required when admission
of evidence in violation of right to confront witnesses
constituted harmless error); State v. Mitchell, supra,
459 (harmless error doctrine applies to admission of
statements taken in violation of Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).
The state’s use of an unreliable eyewitness identifica-
tion that was the product of an unnecessarily suggestive
procedure does not infect or permeate the entire trial
process in the same manner as structural errors do;
rather, the use of such evidence simply results in the
introduction of additional, albeit improper, evidence
into the proceedings. A reviewing court can examine
the relative weight and import of such evidence to deter-
mine whether it may have influenced the jury’s verdict
in light of the other evidence adduced by the state.
Furthermore, we reject the defendant’s contention that
the highly persuasive nature of eyewitness identifica-
tion evidence mandates the conclusion that its improper
admission is tantamount to structural error in that
harmless error analysis would be an inadequate remedy
for the due process violation. On the contrary, even the
unconstitutional admission of a defendant’s involuntary
confession, which ‘‘is probably the most probative and
damaging evidence that can be admitted against him’’;
Arizona v. Fulminante, supra, 499 U.S. 296; is subject
to harmless error review. Id., 295–96. In sum, we see
no reason to treat the improper admission of eyewitness
identification evidence as structural error because it
simply is not error of a structural nature. We also see
no reason to treat the admission of such evidence as
qualitatively different, for purposes of harmless error
review, from any other improperly admitted evidence.
Moreover, it is significant that, because of the constitu-
tional magnitude of the error, the burden falls on the
state to prove that the admission of the tainted identifi-
cation was harmless beyond a reasonable doubt. See,
e.g., State v. Rose, 305 Conn. 594, 625–26, 46 A.3d 146(2012). Therefore, if there is any reasonable doubt that
the admission of the identification was harmful, the
defendant will be entitled to a new trial.
This conclusion accords with the view of federal and
sister state courts, which uniformly apply harmless
error analysis to claims that the admission of an unnec-
essarily suggestive and unreliable eyewitness identifica-
tion deprived a defendant of a fair trial. See, e.g., Man-
son v. Brathwaite, supra, 432 U.S. 118 n.* (Stevens, J.,
concurring); Commonwealth v. Jones, 423 Mass. 99,
105–106, 666 N.E.2d 994 (1996); State v. Van Egmond,
206 Neb. 356, 359, 293 N.W.2d 74 (1980); People v. John-
son, 80 N.Y.2d 798, 799, 599 N.E.2d 682, 587 N.Y.S.2d
278 (1992); State v. Souza, 110 R.I. 261, 268–69, 292
A.2d 214 (1972). Indeed, the defendant has not identified
a single case other than Gordon, and our research has
not disclosed one, in which a court has held that the
improper admission of such identification evidence is a
type of structural error requiring per se reversal. Indeed,
this court never has applied Gordon to grant an auto-
matic reversal of a conviction in a case involving eyewit-
ness identification testimony, the use of which violated
principles of due process. On the contrary, since our
decision in Gordon, we have indicated that harmless
error review would apply in such circumstances. State
v. Milner, supra, 206 Conn. 536 n.11.
It appears that our holding in Gordon may have been
predicated on policy considerations above and beyond
any constitutional requirements. See State v. Gordon,
supra, 185 Conn. 420 (‘‘sound judicial policy requires
reversal [of a conviction] whenever the erroneous
admission of an unnecessarily suggestive and unreliable
identification has violated a defendant’s constitutional
rights’’). To the extent that Gordon rests on such inde-
pendent policy concerns, we are not persuaded that
they outweigh the policy favoring harmless error
review. As we have recognized, ‘‘[a] criminal trial is a
search for truth’’; (internal quotation marks omitted)
State v. Morales, 232 Conn. 707, 723, 657 A.2d 585 (1995);
and, when the state’s improper use of inadmissible evi-
dence, including unreliable eyewitness identification
testimony, does not impair that truth-seeking func-
tion—that is, when there is no reasonable possibility
that the result of the trial would have been different
without that evidence—preservation of the defendant’s
conviction serves the strong public interest in con-
victing the guilty without unfairly prejudicing the
defendant.
We acknowledge the powerful effect that eyewitness
identification testimony has on juries and recognize that
the improper admission of that evidence will constitute
harmful error in many instances, particularly when
there is no other such eyewitness identification testi-
mony. See, e.g., Watkins v. Sowders, 449 U.S. 341, 352,
101 S. Ct. 654, 66 L. Ed. 2d 549 (1981) (Brennan, J.,
dissenting) (‘‘‘[E]yewitness testimony is likely to be
believed by jurors, especially when it is offered with a
high level of confidence, even though the accuracy of
an eyewitness and the confidence of that witness may
not be related to one another at all. All the evidence
points rather strikingly to the conclusion that there is
almost nothing more convincing than a live human
being who takes the stand, points a finger at the defen-
dant, and says ‘‘That’s the one!’’’ ’’ [Emphasis omitted.]).
Nevertheless, the improper use of eyewitness identifica-
tion testimony does not implicate the structural integ-
rity of a trial, and we cannot say that such testimony
is always so powerful and prejudicial, considering that
testimony in light of the other evidence, that harmless
error review is necessarily inadequate to safeguard the
defendant’s right to a fair trial.10 For these reasons, we
improperly concluded otherwise in Gordon, which we
hereby overrule.11
II
Having concluded that harmless error review applies
to the admission of unreliable eyewitness identifica-
tions that are the product of unnecessarily suggestive
procedures, we now must determine whether the pur-
portedly improper admission of Otero’s identification
testimony was harmless beyond a reasonable doubt.
The state maintains that the testimony was indeed
harmless because Miano’s testimony, including her
identification of the defendant, with whom she was
acquainted, provided strong, independent evidence of
the defendant’s guilt. The state further argues that
Otero’s identification of the defendant as the man with
whom he had engaged in a fistfight before being stabbed
did not influence the jury’s finding of guilt because
Otero specifically ‘‘disclaimed any knowledge of
whether the defendant participated in the assault for
which he was convicted,’’ and, therefore, the jury, in
finding the defendant guilty of accessory to assault in
the first degree by means of a dangerous instrument,
must have relied solely on Miano’s identification of the
defendant as one of the three individuals who accosted
Otero while he was on the ground. The defendant main-
tains that the state’s reliance on Miano’s testimony as
proof of harmlessness is misplaced because Miano was
biased against the defendant, her testimony was ‘‘impre-
cise and confused,’’ her ability to observe accurately
was questionable, and she acknowledged that she was
under the influence of alcohol on the evening of the
incident. We agree with the state.
The following additional facts are relevant to our
resolution of this issue. At trial, Otero testified that,
after being knocked to the ground, he was assaulted
by three or four individuals and that, although he was
unable to see any of his assailants, he heard Miano
telling them to stop. He further stated that he had had
no contact with Miano since the night of the assault.
Miano also testified as to what she had observed that
evening, stating that Robert Acevedo, her boyfriend at
the time, drove her, Anna Acevedo and the defendant,
who was dating Anna Acevedo, to Club NV at around
11 p.m. At that time, she had known the defendant for
approximately one to two months, through her friend-
ship with Anna Acevedo. After leaving Club NV, Miano
briefly spoke to Otero while she, Anna Acevedo, and
Robert Acevedo were in Robert Acevedo’s car waiting
for the defendant. Miano testified that, although she
had been ‘‘tipsy’’ earlier from consuming two or three
alcoholic beverages, her vision and hearing were not
impaired after she left Club NV.
As Otero was walking away from Robert Acevedo’s
vehicle, Robert Acevedo, who Miano believed was upset
with Otero for having spoken to her, attempted to strike
Otero with his vehicle. The defendant then arrived and,
after briefly entering the car, left to confront Otero.
Miano, who was distracted by her cell phone, was not
aware of the resulting scuffle until she saw the defen-
dant pushing Otero while they were standing in front
of the vehicle. At this point, Robert Acevedo and Anna
Acevedo got out of the vehicle. As soon as Miano
noticed that Otero had fallen to the ground, she also
exited the vehicle. Miano then observed Robert Acev-
edo, Anna Acevedo, and the defendant fighting with
Otero, although she acknowledged that she never saw
any of them actually strike Otero. Miano also testified
that, as she was attempting to pull Anna Acevedo off
of Otero and help him stand up, police officers
approached the scene. Miano, Robert Acevedo, Anna
Acevedo, and the defendant then quickly returned to
the vehicle, and Robert Acevedo drove to Miano’s
house. Soon thereafter, Miano ceased all contact with
the Acevedos and the defendant. Finally, Miano testified
that she initially had avoided the police when they
sought her assistance in connection with their investiga-
tion of the incident because she feared that Robert
Acevedo, the defendant, or one of his friends might
harm her or her children if she did so.
The principles governing our review of the state’s
claim are well established. ‘‘[W]hether an error is harm-
ful depends on its impact on the trier of fact and the
result of the case. . . . This court has held in a number
of cases that when there is independent overwhelming
evidence of guilt, a constitutional error would be ren-
dered harmless beyond a reasonable doubt. . . . When
an [evidentiary] impropriety is of constitutional propor-
tions, 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 evi-
dence may have had a tendency to influence the judg-
ment of the jury, it cannot be considered harmless. . . .
That determination must be made in light of the entire
record [including the strength of the state’s case without
the evidence admitted in error].’’ (Internal quotation
marks omitted.) State v. Mangual, 311 Conn. 182, 214–
15, 85 A.3d 627 (2014).
As we noted previously, the defendant was convicted
of being an accessory to assault in the first degree
by means of a dangerous instrument. A person is an
accessory to assault in the first degree by means of a
dangerous instrument when he has the specific intent
to cause serious physical injury to an individual and
solicits, requests, commands, importunes or intention-
ally aids another person, who, using a dangerous instru-
ment, causes serious injury to that individual while also
possessing the specific intent to do so. See General
Statutes §§ 53a-59 (a) (1) and 53a-8 (a); see also State
v. Williams, 237 Conn. 748, 754, 679 A.2d 920 (1996)
(discussing intent element of § 53a-59 [a] [1]).
Applying these principles to the present case, we
conclude that, even if the admission of Otero’s identifi-
cation testimony was improper, such testimony was
harmless in light of Miano’s independent identification
of the defendant, whom she knew, as the individual who
initially had confronted Otero and, more importantly, as
one of the three individuals who subsequently assaulted
Otero while he was on the ground. In contrast, Otero
merely identified the defendant, a stranger to him, as
the man with whom he initially had engaged in a fist-
fight; Otero specifically disclaimed any knowledge of
the identity of the individuals who assaulted him after
he was knocked to the ground. Consequently, in finding
the defendant guilty of accessory to assault in the first
degree by means of a dangerous instrument, the jury
must have credited the testimony of Miano,12 who drove
with the defendant to and from Club NV and had known
him socially for one to two months. Accordingly, it is
highly unlikely that Otero’s identification of the defen-
dant as the man with whom he had a brief fistfight had
any effect on the jury’s finding of guilt with respect to
the charge of assault in the first degree as an accessory.
Cf. State v. Mitchell, supra, 296 Conn. 462–63 (purport-
edly improper admission of defendant’s statements into
evidence was harmless error because statements were
of limited probative value and victim identified defen-
dant); State v. Dupigney, 78 Conn. App. 111, 120–22,
826 A.2d 241 (admission of evidence identifying defen-
dant as shooter, even if improper, was nevertheless
harmless beyond reasonable doubt because, inter alia,
three independent witnesses also identified defendant
as shooter), cert. denied, 266 Conn. 919, 837 A.2d 801(2003).
Although the state, during closing argument, men-
tioned Otero’s identification of the defendant, the state
also argued to the jury that Miano’s testimony alone
was more than sufficient to establish that the defendant
was one of the individuals who had surrounded and
then assaulted Otero. Moreover, the state relied heavily
on Miano’s identification of the defendant in arguing
that the state had proven the defendant’s guilt beyond
a reasonable doubt. Finally, defense counsel cross-
examined Otero extensively and impeached him
through the testimony of Bilbo, the police officer who
directly contradicted Otero’s claim that he made a defin-
itive out-of-court identification of the defendant.
We conclude, therefore, that, even if the defendant’s
due process rights were violated by the state’s use of
Otero’s identification testimony, the admission of that
evidence was harmless beyond a reasonable doubt.
Accordingly, we agree with the state that the defen-
dant’s conviction should be affirmed.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
1
The trial court imposed a total effective sentence of nine years imprison-
ment, to run concurrently with the term remaining on a preexisting sentence,
followed by eight years of special parole. State v. Artis, 136 Conn. App. 568,
575, 47 A.3d 419 (2012).
2
In Manson v. Brathwaite, supra, 432 U.S. 98, the United States Supreme
Court held that the admission of an eyewitness’ out-of-court identification,
obtained as a result of an unnecessarily suggestive identification procedure,
that is, a procedure that is both suggestive and not justified by exigent
circumstances, violates a defendant’s right to due process under the federal
constitution when ‘‘the ‘indicators of [a witness’] ability to make an accurate
identification’ are ‘outweighed by the corrupting effect’ of law enforcement
suggestion . . . .’’ Perry v. New Hampshire, U.S. , 132 S. Ct. 716,
725, 181 L. Ed. 2d 694 (2012), quoting Manson v. Brathwaite, supra, 116.
Furthermore, an in-court identification by an eyewitness whose out-of-court
identification was unreliable as a result of an unnecessarily suggestive identi-
fication procedure also is inadmissible unless it ‘‘is purged of the taint of
the defective pretrial procedure by establishment of the fact that it is based
[on] disassociated and independent observation.’’ State v. Smith, 165 Conn.
680, 685, 345 A.2d 41 (1974).
3
Robert Acevedo and Anna Acevedo also were charged in separate cases.
Robert Acevedo pleaded guilty to conspiracy to commit assault in the first
degree and was sentenced to five years imprisonment. Anna Acevedo
pleaded guilty to assault in the third degree, reckless endangerment in the
first degree, unlawful restraint in the second degree, threatening in the
second degree and breach of the peace in the second degree, and received
a suspended sentence.
4
‘‘Later in the trial, Miano 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.’’ State v. Artis,
supra, 136 Conn. App. 590 n.17.
5
In Manson v. Brathwaite, supra, 432 U.S. 98, the court identified the
following nonexclusive list of factors that are relevant to a determination
of whether, under the totality of the circumstances, an out-of-court identifica-
tion resulting from an unnecessarily suggestive police procedure is neverthe-
less reliable: ‘‘[T]he 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
confrontation, and the time between the crime and the confrontation.’’
Id., 114. The trial court expressly considered these factors in reaching its
conclusion that Otero’s identification of the defendant was reliable even
though the police had employed an unnecessarily suggestive identifica-
tion procedure.
6
The defendant also raised a claim of evidentiary insufficiency with
respect to the charge of accessory to assault in the first degree. See State
v. Artis, supra, 136 Conn. App. 575. The Appellate Court rejected this claim;
id., 585; which is not at issue in the present appeal.
7
See footnote 5 of this opinion.
8
In support of its claim that the Appellate Court incorrectly concluded
that Otero’s identification of the defendant was unreliable, the state argues
that the Appellate Court improperly substituted its own judgment concerning
the weight to be afforded the various factors relevant to the reliability
of Otero’s identification. The state also provides an extensive analysis in
explaining why, in its view, this court should take a cautious approach with
respect to the utility of social science research on the subject of eyewitness
identifications. See, e.g., United States v. Johnson, 745 F.3d 227, 228 (7th
Cir. 2014) (although ‘‘th[e] court has suggested that police show photographs
sequentially rather than as part of an array . . . [s]ome recent research has
called into question the view that sequential presentation of photographs
is superior to photo[graphic] spreads’’ [citations omitted]). We do not
address this issue, however, in view of our conclusion that, even if Otero’s
identification testimony should have been excluded as unreliable, its admis-
sion was harmless.
9
Justice Anthony J. Armentano, joined by Justice Arthur H. Healey, dis-
sented in part in Gordon on the ground that the improper admission of
eyewitness identification testimony should be subject to harmless error
analysis and that the improperly admitted identification testimony in that
case was harmless beyond a reasonable doubt. See State v. Gordon, supra,
185 Conn. 426 (Armentano, J., concurring in part and dissenting in part).
10
Judge Lavine provided the following persuasive illustration of this point:
‘‘For example, imagine a bank robbery case in which the out-of-court identifi-
cation made by a teller is unnecessarily suggestive and unreliable but is
admitted at trial. The bank robber is clearly depicted on [a video recording];
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 [a reviewing] court would
be required to reverse the conviction.’’ State v. Artis, supra, 136 Conn. App.
634 n.15 (Lavine, J., concurring in part and dissenting in part).
11
The defendant also asserts that we should not overrule Gordon because
‘‘[t]here is no deterrent effect when an appellate court, having concluded
that [an identification] procedure was unnecessarily suggestive, and the
identification unreliable, nevertheless upholds the conviction under the
harmless error doctrine.’’ We disagree. The suppression of unnecessarily
suggestive and unreliable identifications is sufficient to deter police over-
reaching in the same manner and to the same extent that the suppression
of improperly obtained confessions, the admission of which also is reviewed
for harmless error, adequately deters police coercion. See Arizona v. Fulmi-
nante, supra, 499 U.S. 295–96. Moreover, harmless error analysis creates
no incentive for law enforcement officers to overstep the law, as such
officials cannot know whether their actions subsequently will be deemed
harmless.
12
The defendant’s contention that ‘‘the jury could have reasonably doubted
[Miano’s] objectivity’’ because she was ‘‘friends with Otero and intervened
in the scuffle to pull Anna [Acevedo] off of him’’ is belied by the record. At
trial, Miano stated that she briefly had encountered Otero, who was a friend
of the father of her children, only twice in her life prior to seeing him at
Club NV on the night of the assault, and Otero testified that he and Miano
had not been in contact since then. Indeed, Miano even forgot Otero’s last
name during her testimony. Suffice it to say that the record is devoid of
any evidence that Miano was biased against the defendant as a result of
her extremely attenuated relationship with Otero.