State v. Dickson ( 2016 )

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STATE v. DICKSON—SECOND CONCURRENCE
ESPINOSA, J., with whom ZARELLA, J., joins, con-
curring. I agree with the majority that the judgment of
conviction of the defendant, Andrew Dickson, should
be affirmed. Therefore, I concur in the result. I disagree,
however, with the majority’s decision to overrule State
v. Smith, 200 Conn. 465, 512 A.2d 189 (1986), and State
v. Tatum, 219 Conn. 721, 728, 595 A.2d 322 (1991). In
my view, the majority’s decision is yet another instance
in which this court acts under the mistaken belief that
justice is served when this court crafts a new legal rule
in order to allow itself to step in and perform a function
that is the proper province of the trial court. I therefore
agree with and join the concurring opinion of Justice
Zarella. I particularly note my agreement with him that
the majority lacks authority to announce a prophylactic
rule predicated on federal constitutional law. If any
court has that authority—an issue I need not resolve
as it is not implicated in this appeal—it is the United
States Supreme Court. The majority’s failure to offer
any explanation for its authority to issue such a rule,
even resisting the increasingly popular resort to this
court’s supervisory powers, highlights the fact that the
majority lays claim to a power that is without any foun-
dation. Compounding the error, the majority not only
acts without authority, but in doing so it micromanages
the trial courts—again.
In Smith, this court acknowledged that there is
always an ‘‘element of suggestiveness’’ involved in an
in-court identification procedure; State v. Smith, supra,
200 Conn. 469; because such a procedure ‘‘conveys the
message that the state has arrested and placed on trial a
person it believes has committed the crime.’’ Id., 468–69.
The court further recognized, however, that, unless the
in-court identification had been preceded by an unnec-
essarily suggestive pretrial identification procedure that
was ‘‘ ‘conducive to irreparable misidentification,’ ’’ the
suggestiveness involved in an in-court identification
does not implicate the due process clause. Id., 470.
Accordingly, the court explained, because the ‘‘manner
in which in-court identifications are conducted is not
of constitutional magnitude,’’ the admissibility of such
identifications ‘‘rests within the sound discretion of the
trial court.’’ Id. Justice Zarella’s concurring opinion
thoroughly and cogently explains why the principles
that this court relied on in Smith to conclude that in-
court identifications do not violate a defendant’s right
to due process remain valid and controlling. Today,
however, the majority departs from all other jurisdic-
tions by adopting a prophylactic rule that applies to
all first time in-court identifications. In doing so, the
majority invades the province of the trial court.
The unwieldy nature of the majority’s rule illustrates
that it attempts to perform a task more suited to the
trial court. In order to make its general rule ‘‘fit’’ to the
task, the majority tries to anticipate possible contingen-
cies, constructing a rule that reads like a complicated
flowchart. A brief summary of the general rule and all
of its permutations is illustrative.
The general rule announced by the majority is that
‘‘in-court identifications that are not preceded by a suc-
cessful identification in a nonsuggestive identification
procedure . . . must be prescreened by the trial
court.’’ (Footnote omitted.) So, when there has been no
pretrial identification, and the state intends to present a
first time in-court identification, it must first ask permis-
sion from the trial court.
But what if the defendant is a person known to the
witness? In that case, the majority explains, the state
need only give notice to that effect on the record to
satisfy the prescreening requirement.
What if the defendant fails to dispute or concedes
the ability of the witness to identify him? The state
must provide notice on the record of that fact to satisfy
the prescreening requirement.
What if the defendant concedes that he performed
the actions at issue, and only disputes that his actions
constituted a crime? The state must provide notice on
the record of such concession to satisfy the prescreen-
ing requirement.
If the trial court determines that the state may not
perform a first time identification in court, then the
state may request permission to perform an out-of-court
identification procedure, and the court ordinarily
should grant the state’s request.
But what if the witness already has participated in a
nonsuggestive identification procedure, and failed to
identify the defendant? In order to be allowed to con-
duct a second identification procedure, the state must
‘‘provide a good reason’’ why the court should allow it.
The majority acknowledges that it cannot ‘‘catalogue’’
all of the reasons that could justify a court’s decision
to allow a second identification procedure, but offers
two examples: if the state already conducted a photo-
graphic array and now wishes to conduct a lineup, or
when the witness was threatened or intimidated before
the first identification procedure. See footnote 30 of
the majority opinion.
If the witness did identify the defendant in a previous,
nonsuggestive procedure, but with ‘‘some uncertainty,’’
the majority states, due process generally does not
require that the court prescreen the in-court identifica-
tion. The level of uncertainty goes to the weight of the
evidence, not its admissibility. If the uncertainty of the
witness during the prior identification procedure was
so great that it amounted to a failure to identify the
defendant, however, the in-court identification proce-
dure would be subject to prescreening.
What if the witness learned that the defendant had
been charged with a crime and the witness attended
pretrial proceedings, thus observing the defendant? If
the state was not responsible for the pretrial confronta-
tion, then those facts go to the weight of the evidence,
not its admissibility.
What if the state was responsible for the presence
of the witness at the pretrial proceedings? In that case,
the trial court must determine under the totality of the
circumstances whether ‘‘the witness would have been
able to identify the defendant in court even without the
prior suggestive confrontation.’’ If the answer is yes,
then the in-court identification should be allowed. If
the answer is no, then no in-court identification should
be allowed.
The many alternatives that the majority attempts to
anticipate in its rule reveal that it has taken upon itself
a task for which this court is not suited. The supervision
of procedures and the managing of evidence should
be left to the sound discretion of the trial court. The
defendant’s protections against the suggestiveness of
an in-court identification, as Justice Zarella explains in
his concurring opinion, are the ‘‘traditional protections
of our adversary system, such as confrontation, the
attendant right to cross-examine state witnesses, clos-
ing argument, jury instructions, the presumption of
innocence, and the government’s burden to prove guilt
beyond a reasonable doubt.’’ The trial court, presiding
over the proceedings, is in the best position to ensure
that all of these traditional protections operate to
ensure that the defendant receives a fair trial. The
majority’s effort to substitute its own broad rule for the
myriad decisions that a trial judge must make as a case
evolves is ill-adapted to the task at hand, as illustrated
by the multiple contingencies that the majority attempts
to anticipate.
What is more troubling than the poor fit of the majori-
ty’s rule is that today’s decision is part of an emerging
pattern of judicial activism in this court. I have already
noted this trend in a previous dissenting opinion, but
because of the risk posed to the rule of law, the observa-
tion bears repeating. Today’s decision is one among a
disturbing line of cases in which this court has exceeded
‘‘the constitutional bounds of its power in order to
impose its personal notion of what justice and fairness
require.’’ State v. Santiago, 318 Conn. 1, 389, 122 A.3d
1 (2015) (Espinosa, J., dissenting). For instance, in
recent decisions, this court also has strained beyond
its own role: to usurp the role of the legislature in setting
public policy for the state; see, e.g., id., 389 (Espinosa,
J., dissenting) (explaining that majority decision abol-
ishing death penalty constituted ‘‘legislating from the
bench’’ [emphasis omitted]); see also State v. Peeler,
321 Conn. 375, 377, A.3d (2016) (according stare
decisis effect to State v. Santiago, supra, 1); to cross
the line from adjudication into advocacy; see, e.g.,
Lapointe v. Commissioner of Correction, 316 Conn.
225, 440, 112 A.3d 1 (2015) (Espinosa, J., dissenting)
(explaining that majority, by resolving appeal on basis
that habeas petitioner expressly had abandoned, and
by announcing radical new rule allowing for de novo
review of habeas court’s factual findings, effectively
‘‘doff[ed] [its] judicial robe and donn[ed] an advocate’s
suit’’); and, in disregard of applicable standards of
review, to substitute its own judgment, or in the most
extreme case, its own findings, for that of the trial court.
See, e.g., In re Oreoluwa O., 321 Conn. 523, 547–48,
A.3d (2016) (Espinosa, J., dissenting) (detailing
manner in which majority opinion ignored applicable
standard of review of evidentiary sufficiency, and,
rather than considering evidence in light most favorable
to sustaining judgment of trial court, as required,
instead drew inferences least likely to support judg-
ment); Lapointe v. Commissioner of Correction, supra,
298 (applying de novo review of habeas court’s credibil-
ity findings).
This line of recent decisions risks creating the percep-
tion that the court is not content to be confined by the
rule of law to its role as a state, appellate tribunal, and
instead is willing to appropriate authority that properly
belongs to other courts or branches of government, to
advocates rather than judges, or, in some instances,
possibly to no one at all. For instance, in the present
case, as Justice Zarella explains thoroughly in his con-
curring opinion, by announcing its prophylactic rule
predicated on federal constitutional law, the majority
purports to exercise authority that, if enjoyed by any
court at all, belongs only to the United States Supreme
Court. See Ohio v. Robinette, 519 U.S. 33, 43, 117 S. Ct.
417, 136 L. Ed. 2d 347 (1996) (Ginsburg, J., concurring).
Moreover, as Justice Robinson observes in his concur-
ring opinion, because the state has prevailed in this
appeal, the majority’s conclusion is ‘‘virtually unreview-
able,’’ unless the United States Supreme Court departs
from its normal practice of denying petitions for certio-
rari filed by prevailing parties. As I have explained in
this concurring opinion, the majority’s rule also
encroaches on the role of the trial court by attempting
to supervise proceedings at that court by universal rule,
rather than allowing the trial court to manage the pro-
ceedings in each case as they develop. Because I believe
that this court best serves the rule of law and justice
by recognizing the limits of its role and acting within
those limits, I respectfully concur in the judgment.