State v. Patterson , 170 Conn. App. 768 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. CLARENCE
MALCOLM PATTERSON
(AC 37982)
Lavine, Alvord and Harper, Js.
Argued November 28, 2016—officially released February 21, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number one,
Colin, J.)
Heather Clark, assigned counsel, for the appellant
(defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Jonathan Lewin, deputy assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE J. The defendant, Clarence Malcolm Pat-
terson, appeals from the judgment of conviction, ren-
dered after a jury trial, of one count of burglary in the
second degree in violation of General Statutes § 53a-
102 and one count of attempted larceny in the fifth
degree in violation of General Statutes §§ 53a-49 and
53a-125a. On appeal, the defendant claims that (1) the
trial court erroneously denied his motion to suppress
two photographic lineup identifications and one private
actor identification, (2) the state improperly cross-
examined his expert witness when it questioned him
about the opinions of other experts and about a hypo-
thetical question that included facts not in evidence,
and (3) the prosecutor engaged in multiple acts of prose-
cutorial impropriety. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. At approximately noon on May 2, 2013, Lester
Segura was in his bedroom with his girlfriend, Angie
Espitia, when he heard someone enter his residence.
Segura hid behind his bedroom door and peered around
it to see the defendant standing in his residence. From
his room, Segura asked the defendant why he was there
and asked him several times to leave. The defendant
responded that he knocked on the front door and
noticed that it was open, so he ‘‘just came in.’’ During
this exchange, Segura looked around the door three
times. He observed the defendant for a total of fifteen
to twenty seconds but saw the defendant’s ‘‘full face’’
for approximately three to four seconds.
When the defendant exited the residence through
the front door, Segura went outside and observed the
defendant ‘‘walking fast’’ down the street toward a
liquor and dress store. Gabriel Duarte, an employee of
the store, was sweeping the sidewalk when he observed
the defendant exit Segura’s residence. Duarte was
‘‘face-to-face’’ with the defendant for approximately
five seconds.
Segura went back inside his residence and noticed
that his computer, iPad, and tools were on the couch
where he had not left them. He then went into his
brother’s room and saw that somebody had moved his
brother’s coin jar. Espitia called 911, but before the
police arrived, Segura realized that he recognized the
defendant from ‘‘[i]n the store, [and] out on the street.’’
He also thought that he had seen the defendant pre-
viously on the local news. He quickly checked News
Channel 12 from his cell phone and found the defen-
dant’s photograph, which was displayed in relation to
another burglary that took place approximately two
weeks prior.
On May 8, 2013, Segura identified the defendant in a
double-blind,1 sequential2 photographic lineup3 as the
man he saw in his residence. One and one-half weeks
before trial, Duarte identified the defendant in a differ-
ent double-blind, sequential photographic lineup as the
man he saw leaving Segura’s residence. Duarte told
police that he had seen the defendant prior to May 2,
2013, walking around the neighborhood. He also stated
that the defendant previously had shopped at Duarte’s
store and that Duarte had once purchased a toy bubble
gun from the defendant.4
The defendant was charged with burglary in the sec-
ond degree and attempted larceny in the fifth degree.
On July 14, 2014, the defendant filed a motion to sup-
press any identifications of him by Segura and Duarte.
On August 18, 2014, the court conducted an evidentiary
hearing, and on August 19, 2014, the court denied the
defendant’s motion.
During the defendant’s case-in-chief, he called Sam-
uel R. Sommers, an associate professor at Tufts Univer-
sity, to testify about the unreliability of eyewitness
identifications. The state cross-examined Sommers
about other experts’ opinions pertaining to the reliabil-
ity of these studies. The state also posed a hypothetical
question to Sommers. Defense counsel did not object
to either line of questioning.
During his closing and rebuttal arguments, the prose-
cutor stated that Sommers’ testimony actually sup-
ported the state’s theory that Segura and Duarte made
accurate identifications of the defendant, reiterating the
hypothetical he posed to Sommers. In addition, without
tying his assertion to any evidence admitted at trial,
the prosecutor opined that the defendant planned on
selling Segura’s property to a pawn shop.
On August 22, 2014, the jury found the defendant
guilty on both counts. The court sentenced the defen-
dant to ten years incarceration for the burglary in the
second degree conviction and six months for the
attempted larceny in the fifth degree conviction, for a
total effective sentence of ten and one-half years. This
appeal followed. Additional facts will be set forth as
necessary.
I
IDENTIFICATIONS
The defendant’s first claim is that the court errone-
ously denied the defendant’s motion to suppress the
identifications of him by Segura and Duarte. Specifi-
cally, the defendant claims that the photographs viewed
by Segura and Duarte were unduly suggestive and that
the process5 by which police showed Duarte the photo-
graphs was unduly suggestive.6 The defendant also
claims that Segura’s private actor identification, when
he identified the defendant from the news article, was
the product of Segura’s unduly suggestive conduct.7 The
state claims that the police actions were not unduly
suggestive because the police conducted double-blind,
sequential lineups, and the photographs were not
unduly suggestive because the defendant’s photograph
‘‘was not highlighted in comparison to the other photo-
graphs.’’ The state also claims that ‘‘Segura’s use of his
cell phone to access an online . . . picture did not
constitute an unnecessarily suggestive method of identi-
fication.’’ We agree with the state and conclude that no
part of the identification was the product of unnecessar-
ily suggestive conduct and, therefore, do not reach the
question of whether the identifications were other-
wise unreliable.
The following additional facts, which are either in
the record or which the court found in ruling on the
motion to suppress, are relevant to this claim. During
the 911 phone call made by Espitia, Segura described
the defendant as a ‘‘bald [and] black’’ man. Shortly after,
Daniel Musso, an officer of the Stamford Police Depart-
ment (department), responded to the 911 call made by
Espitia. When he arrived at Segura’s residence, Segura
described the defendant as a ‘‘black bald man’’ between
the ages of forty and fifty years old. He also told Musso
that he had seen the defendant prior to the incident
and showed Musso the photograph of the defendant he
found from the news. Musso did not ask Segura to
locate the photograph and did not see the photograph
until after he started his investigation.
Peter Dispagna, a sergeant with the department, cre-
ated two different photographic lineups, both of which
included a photograph of the defendant.8 In the photo-
graphic lineup shown to Segura, the defendant was
the oldest person depicted in the photographs.9 The
defendant’s height fell within the range of the other
individuals’ heights, and the defendant and three other
individuals were bald while the rest of the individuals
had hair of varying lengths.10 The seven other individu-
als wore black and white shirts while the defendant
wore an orange shirt. In the photographic lineup shown
to Duarte, the defendant was not the oldest person
depicted but was the only person who was bald.11
On May 8, 2013, William Moore, an investigator with
the department, conducted a double-blind, sequential
photographic lineup with Segura. He read Segura the
instructions on the witness instruction sheet before
he conducted the photographic lineup, which included
instructions that ‘‘[t]he perpetrator may or may not be
among the persons in the photographic line up,’’ and
‘‘[t]he persons in the photographic lineup . . . may not
look exactly as they did on the date of the offense
because features like facial or head hair can change.’’
Segura looked at all of the photographs as Moore turned
them over one by one, and he immediately identified
the defendant.
Approximately one and one-half weeks before the
trial, Damien Rosa, an officer with the department, con-
ducted a double-blind, sequential photographic lineup
with Duarte. Rosa read the same instructions to Duarte
as were read to Segura in English and in Spanish. After
observing all of the photographs, Duarte immediately
identified the defendant. Dispagna remained in the
room while Rosa conducted the photographic lineup
but did not assist Rosa in conducting the lineup or ‘‘say
a word throughout the entire process.’’
Prior to trial, the defendant filed a motion to suppress
any identifications of him by Segura and Duarte, includ-
ing the photographic lineup identifications and Segura’s
private actor identification of the defendant from the
news article. On August 18, 2014, the court held an
evidentiary hearing on the motion to suppress, in which
a number of witnesses, including Musso and Duarte,
testified. On August 19, 2014, the court rendered an oral
decision, denying the defendant’s motion to suppress.
It found that neither the photographs themselves nor
the procedures used by police to obtain the identifica-
tions were ‘‘unnecessarily suggestive.’’12 It also found
Segura’s ‘‘conduct [not] to be unnecessarily sug-
gestive.’’13
A
Photographic Lineup Identifications
The defendant claims on appeal that the court errone-
ously denied his motion to suppress the photographic
lineup identifications by Segura and Duarte. With regard
to Segura’s photograph lineup identification, the defen-
dant argues that the photographs in the lineup were
unnecessarily suggestive because only one individual
in the photographs ‘‘was close in age to the defendant.’’
In addition, ‘‘[m]any of the individuals in the photo-
graphs . . . were significantly shorter than the defen-
dant and had hair,’’ and ‘‘the defendant was the only
individual wearing a colored shirt.’’ With regard to
Duarte’s identification, the defendant argues that the
photographs used in the procedure were unnecessarily
suggestive because of the ‘‘lack of likeness shared by
the individuals pictured and the prominence of the
defendant’s photograph.’’ He also argues that the con-
duct of police was unnecessarily suggestive because
Dispagna, who was ‘‘someone who knew the defen-
dant,’’ was present during the procedure. We disagree.
‘‘Upon review of a trial court’s denial of a motion to
suppress, [t]he court’s conclusions will not be disturbed
unless they are legally and logically inconsistent with
the facts. . . . Because the issue of the reliability of
an identification involves the constitutional rights of an
accused . . . we are obliged to examine the record
scrupulously to determine whether the facts found are
adequately supported by the evidence and whether the
court’s ultimate inference of reliability was reasonable.’’
(Internal quotation marks omitted.) State v. Elliston,
86 Conn. App. 479, 482–83, 861 A.2d 563 (2004), cert.
denied, 273 Conn. 906, 868 A.2d 746 (2005).
‘‘[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 sugges-
tive; and second, if it is found to have been so, it must be
determined whether the identification was nevertheless
reliable based on examination of the totality of the
circumstances. . . . Therefore, [t]he critical question
. . . is what makes a particular identification proce-
dure suggestive enough to require the court to proceed
to the second prong and to consider the overall reliabil-
ity of the identification. . . . In deciding [the first
prong] . . . the entire procedure, viewed in light of the
factual circumstances of the individual case . . . must
be examined to determine if a particular identification
is tainted by unnecessary suggestiveness.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Grant, 154 Conn. App. 293, 303, 112 A.3d 175 (2014),
cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). An
‘‘analysis of unnecessary suggestiveness must be con-
ducted in light of the totality of the circumstances
. . . .’’ (Internal quotation marks omitted.) State v.
Manson, 118 Conn. App. 538, 545, 984 A.2d 1099 (2009),
cert. denied, 295 Conn. 902, 988 A.2d 878 (2010).
With regard to the first prong, ‘‘the court should focus
on two factors. The first factor concerns the composi-
tion of the photographic array itself.’’ (Internal quota-
tion marks omitted.) State v. Outing, 298 Conn. 34, 49,
3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct.
1479, 179 L. Ed. 2d 316 (2011). ‘‘To determine whether
a photographic array is unnecessarily suggestive, a
reviewing court considers various factors, including,
but not limited to: (1) the degree of likeness shared by
the individuals pictured . . . (2) the number of photo-
graphs included in the array . . . (3) whether the sus-
pect’s photograph prominently was displayed or
otherwise was highlighted in an impermissible manner
. . . (4) whether the eyewitness had been told that the
array includes a photograph of a known suspect . . .
(5) whether the eyewitness had been presented with
multiple arrays in which the photograph of one suspect
recurred repeatedly . . . and (6) whether a second
eyewitness was present during the presentation of the
array.’’ (Internal quotation marks omitted.) State v.
Smith, 107 Conn. App. 666, 673–74, 946 A.2d 319, cert.
denied, 288 Conn. 902, 952 A.2d 811 (2008).
‘‘The second factor, which is related to the first but
conceptually broader, requires the court to examine
the actions of law enforcement personnel to determine
whether the witness’ attention was directed to a suspect
because of police conduct. . . . In considering this
[factor, the court should] look to the effects of the cir-
cumstances of the pretrial identification, not whether
law enforcement officers intended to prejudice the
defendant. . . . It stands to reason that police officers
administering a photographic identification procedure
have the potential to taint the process by drawing the
witness’ attention to a particular suspect. This could
occur either through the construction of the array itself
or through physical or verbal cues provided by an offi-
cer. . . . The failure of a police officer to provide an
affirmative warning to witnesses that the perpetrator
may or may not be among the choices in the identifica-
tion procedure is one circumstance that may increase
the likelihood of a mistaken identification.’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) State v. Outing, supra, 298 Conn. 49.
We conclude that, under the totality of the circum-
stances, the compositions of the photographic lineups
were not unnecessarily suggestive. After a review of
the record, we agree with the court’s finding that ‘‘there
was nothing improper about the degree of likeness
shared by the individuals pictured in each photo array.’’
The differences in hair styles between the individuals
are slight; for example, there is little variation between
being ‘‘bald’’ and a having ‘‘flat top’’ hairstyle. There is
nothing in the photographs that indicate that there are
height differences between the individuals because the
photographs only show the individuals’ heads and
shoulders, and there are no visible height indicators.
The differences in age are not dispositive because the
analysis focuses on the ‘‘likeness’’ of the individuals,
and most of the individuals look similar in age to the
defendant. The only difference that arguably could dif-
ferentiate the defendant’s photograph from the others
is that he is the only one wearing a colored shirt. Yet,
there is nothing in the record to indicate that the orange
shirt influenced Segura’s decision in choosing the defen-
dant’s photograph. See, e.g., State v. Smith, supra, 107
Conn. App. 671 (distinction that defendant was only
individual wearing a red shirt did not make photo-
graphic array unnecessarily suggestive); see also State
v. Vaughn, 199 Conn. 557, 564, 508 A.2d 430 (‘‘[a]ny
array composed of different individuals must necessar-
ily contain certain differences’’), cert. denied, 479 U.S.
989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986). Even though
Segura identified the defendant from the news article
prior to the photographic lineup, the defendant pro-
vided no evidence that either Segura or Duarte knew
that the defendant’s photograph was included in the
photographic array.
We also conclude that the photographic lineup proce-
dures in the present case were not unnecessarily sug-
gestive. The police did nothing to bring Segura’s or
Duarte’s unwarranted attention to the defendant’s pho-
tograph.14 The defendant failed to produce any evidence
that either Moore or Rosa influenced Segura’s or
Duarte’s selection of the defendant’s photograph. In
fact, neither Moore nor Rosa were aware of who the
target was or whether the defendant was included
within the photographic lineup. In addition, the witness
instruction sheet was read to both Segura and Duarte,
and the instructions gave an affirmative warning that
the suspect’s photograph may or may not be part of
the photographic lineup. Specifically with regard to
Duarte’s photographic lineup procedure, Dispagna was
not near either Rosa or Duarte during the procedure
and did not speak to Duarte until after the completion
of the photographic lineup. In short, both photographic
lineup procedures were conducted in a nonsugges-
tive manner.
Accordingly, we conclude that the identifications
were not products of unnecessarily suggestive actions
on the part of the police.
B
Private Actor Identification
The defendant also argues on appeal that the court
erroneously denied his motion to suppress the private
actor identification by Segura. The defendant asserts
that prior to May 2, 2013, ‘‘Segura read a news article
related to a burglary [and] the defendant’s picture was
displayed in that article next to a female, but no other
males.’’ Not until after Segura observed the defendant
in his residence did he ‘‘conduct . . . Internet research
to relocate that news article’’ in order to identify the
defendant to the police. Thus, the defendant argues that
because Segura already had seen the defendant in an
incriminating news article prior to the incident, Segura’s
conduct of searching for the defendant’s incriminating
photograph in order to make an identification was
unnecessarily suggestive. We disagree.
‘‘Because the [fourteenth] [a]mendment is directed
at the states, it can be violated only by conduct that
may be fairly characterized as state action.’’ (Internal
quotation marks omitted.) State v. Holliman, 214 Conn.
38, 43, 570 A.2d 680 (1990). Accordingly, ‘‘the [d]ue
[p]rocess [c]lause does not require a preliminary judi-
cial inquiry into the reliability of an eyewitness identifi-
cation when the identification was not procured under
unnecessarily suggestive circumstances arranged by
law enforcement.’’ Perry v. New Hampshire, U.S.
, 132 S. Ct. 716, 730, 181 L. Ed. 2d 694 (2012); see also
State v. Holliman, supra, 46–49 (federal constitutional
provisions are not implicated when defendant alleges
identification product of unnecessarily suggestive pri-
vate conduct). Our Supreme Court recently has held
that no state constitutional provisions are automatically
implicated when a defendant makes a claim of unneces-
sarily suggestive private conduct. See State v. Johnson,
312 Conn. 687, 704–705, 94 A.3d 1173 (2014). Our
Supreme Court, nevertheless, believes that even though
a claim of unnecessary private conduct has no constitu-
tional underpinning, ‘‘as a matter of evidentiary law,
the criteria established for determining the admissibility
of identifications in the due process context are appro-
priate guidelines by which to determine the admissibil-
ity of identifications that result from procedures
conducted by civilians.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 700. Therefore, ‘‘while
the reliability of an eyewitness identification, or the
lack thereof, ordinarily goes to the weight of the evi-
dence, and not its admissibility, unreliable identification
evidence that is tainted by unduly suggestive private
conduct, like such evidence that is tainted by improper
state action, is inadmissible . . . .’’ (Emphasis omitted;
footnote omitted.) Id.
‘‘Accordingly, we will engage in the two-pronged
inquiry traditionally applied to identifications involving
state action to determine the admissibility at trial of [a
private actor] identification. [F]irst, it must be deter-
mined whether the identification procedure was unnec-
essarily suggestive, and second, if it is found to be so,
it must be determined whether the identification was
nevertheless reliable based on an examination of the
totality of the circumstances.’’ (Internal quotation
marks omitted.) State v. Holliman, supra, 214 Conn.
46.15
We agree with the court’s finding that Segura’s ‘‘con-
duct’’ was not ‘‘unnecessarily suggestive.’’ The defen-
dant cites to no case law, and we are aware of none,
which suggests that searching for an individual’s photo-
graph online after observing that individual in person
constitutes unnecessarily suggestive conduct.16
Accordingly, we conclude that the identification Seg-
ura made from the news article was not a product of
unnecessarily suggestive conduct, and the trial court
did not err in denying the defendant’s motion to
suppress.
II
CROSS-EXAMINATION OF EXPERT WITNESS
The defendant’s second claim is that the state improp-
erly cross-examined Sommers, the defendant’s expert
witness, about the testimony of another expert in a
different trial and about the opinions of other experts.
The defendant also claims that the state impermissibly
cross-examined Sommers about a hypothetical question
that included facts not in evidence. The defendant
acknowledges that his claim is unpreserved but con-
tends that reversal is appropriate pursuant to the plain
error doctrine.17 The state claims that both lines of ques-
tioning were proper. Because defense counsel did not
object to the questions the state asked during cross-
examination, the defendant failed to preserve his claim,
and we will not review it.
The following additional facts are relevant to this
claim. On direct examination, Sommers testified about
the different types of scientific and statistical studies
that have been conducted to test the reliability of eye-
witness identifications. On cross-examination, the state
extensively questioned Sommers about whether he
agreed with the testimony of another expert in a differ-
ent trial and of the opinions of other experts that the
procedures used to study the accuracy of eyewitness
identifications may not yield reliable results. Defense
counsel did not object to these lines of questioning at
any time.
The state also presented a hypothetical question to
Sommers: ‘‘And so isn’t it fair to say if I take the train
every day, the same train, the 9:05 out of New Haven
to Stamford every day and I’m on that train, I see the
same person sitting in the same seat on the same car
that I sit in every day multiple times. . . . I never speak
to him, I don’t even know his name. But then one–at
one point I see this same person commit a crime. And
then at some point later on I’m asked to identify this
same person. Wouldn’t this witness’s identification be
more accurate?’’ Defense counsel did not object to the
state’s hypothetical question.
The defendant argues on appeal that the state improp-
erly cross-examined Sommers about ‘‘out-of-court opin-
ions, which were not Dr. Sommers’ prior inconsistent
statements.’’ The defendant also argues that the state
impermissibly posed a hypothetical question to Som-
mers which was ‘‘based on facts that did not bear any
relationship to the evidence adduced.’’ The defendant
concedes that his evidentiary claim is not preserved
but argues that reversal is appropriate under the plain
error doctrine. We do not agree.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
[The supreme] court is not bound to consider claims
of law not made at the trial. . . . In order to preserve an
evidentiary ruling for review, trial counsel must object
properly. . . .
‘‘[B]ecause the sine qua non of preservation is fair
notice to the trial court . . . the determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below with
sufficient clarity to place the trial court on reasonable
notice of that very same claim.’’ (Citations omitted;
internal quotation marks omitted.) State v. Jorge P., 308
Conn. 740, 753–54, 66 A.3d 869 (2013); see also State
v. Duteau, 68 Conn. App. 248, 256, 791 A.2d 591 (‘‘This
court shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent to
the trial. . . . Practice Book § 60-5. Appellate review
of evidentiary rulings is ordinarily limited to the specific
legal issue raised by the objection of trial counsel. . . .
By failing to object . . . the defendant failed to pre-
serve this claim.’’ [Internal quotation marks omitted.]),
cert. denied, 260 Conn. 939, 835 A.2d 58 (2002).
After a careful review of the transcript of Sommers’
testimony, we could not find a single objection made
by the defendant to the claimed improper lines of ques-
tioning by the state during cross-examination. If the
defendant had objected, we would address the claim.
We conclude that the defendant’s evidentiary claim on
appeal was not preserved, and we decline to review it.
Moreover, as the defendant’s claim does not involve
error so obvious that it affects the fairness of or public
confidence in the judicial proceeding, we conclude that
he cannot prevail under the plain error doctrine. See
footnote 17 of this opinion.
III
PROSECUTORIAL IMPROPRIETY
A
Analysis of the Claimed Impropriety
The defendant’s third claim is that the prosecutor
engaged in multiple acts of prosecutorial impropriety
during the prosecutor’s closing and rebuttal arguments,
which deprived the defendant of his right to due pro-
cess.18 The defendant claims that the prosecutor imper-
missibly: (1) argued facts not in evidence, (2)
mischaracterized Sommers’ testimony, (3) appealed to
the emotions of the jury, and (4) expressed his personal
opinion about the credibility of Segura’s identifications.
We agree with the defendant that the prosecutor
engaged in acts of impropriety when he argued facts
not in evidence and when he mischaracterized part of
Sommers’ testimony, but we, nevertheless, conclude
that the prosecutor’s actions were not so egregious as
to deprive the defendant of his right to due process.
We first note that the defendant did not object to
most of the alleged improprieties at issue, and his claim
is not preserved.19 We will, nevertheless, review the
claim ‘‘without resort to an extraordinary level of
review.’’ State v. James R., 138 Conn. App. 181, 186, 50
A.3d 936, cert. denied, 307 Conn. 940, 56 A.3d 949 (2012).
‘‘[A] claim of prosecutorial [impropriety], even in the
absence of an objection, has constitutional implications
and requires a due process analysis under State v. Wil-
liams, [204 Conn. 523, 540, 529 A.2d 653 (1987)].’’ State
v. Ritrovato, 280 Conn. 36, 59 n.17, 905 A.2d 1079 (2006).
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question that may only be resolved in the
context of the entire trial . . . .’’ (Internal quotation
marks omitted.) State v. Angel T., 292 Conn. 262, 275,
973 A.2d 1207 (2009).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however] [c]ounsel must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment and fair comment cannot be determined precisely
by rule and line, and something must be allowed for
the zeal of counsel in the heat of argument. . . . Thus,
as the state’s advocate, a prosecutor may argue the
state’s case forcefully, [provided the argument is] fair
and based upon the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical devices is simply fair
argument.’’ (Internal quotation marks omitted.) State v.
Medrano, 308 Conn. 604, 611, 65 A.3d 503 (2013).
1
Arguing Facts Not in Evidence
The defendant claims that the prosecutor argued
facts that were not in evidence during his closing and
rebuttal arguments when he suggested to the jury that
the defendant would sell stolen property at a pawn shop
and when he used a misleading hypothetical. We agree.
‘‘In fulfilling his duties, a prosecutor must confine
the arguments to the evidence in the record. . . . State-
ments as to facts that have not been proven amount to
unsworn testimony that is not the subject of proper
closing argument. . . . [Although] the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment [on], or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider. . . .
Moreover, when a prosecutor suggests a fact not in
evidence, there is a risk that the jury may conclude that
he or she has independent knowledge of facts that could
not be presented to the jury.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Ross, 151 Conn.
App. 687, 697–98, 95 A.3d 1208, cert. denied, 314 Conn.
926, 101 A.3d 272 (2014).
‘‘In deciding cases, however, [j]urors are not expected
to lay aside matters of common knowledge or their own
observations and experiences, but rather, to apply them
to the facts as presented to arrive at an intelligent and
correct conclusion. . . . Therefore it is entirely proper
for counsel to appeal to a jury’s common sense in clos-
ing remarks.’’ (Internal quotation marks omitted.) State
v. Rolli, 53 Conn. App. 269, 281, 729 A.2d 245, cert.
denied, 249 Conn. 926, 733 A.2d 850 (1999). ‘‘A prosecu-
tor may invite the jury to draw reasonable inferences
from the evidence; however, he or she may not invite
sheer speculation unconnected to evidence.’’ State v.
Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002).
a
Pawn Shop
We agree with the defendant’s claim that the prosecu-
tor argued facts not in evidence when the prosecutor
stated that the defendant planned to sell Segura’s prop-
erty to a pawn shop. The prosecutor stated that ‘‘Mr.
Patterson didn’t want to hurt anybody. He was just
there to get some money, get some jewelry, get some
iPads, get some Sony laptops. Get that, go out on the
street, sell it; just like he sells bubble guns to Mr.
Duarte.’’ He also stated that ‘‘once [the defendant] took
those belongings, he intended to . . . get some profit
from that in terms of selling them on the street . . .
or go[ing] in[to] a pawn shop.’’ (Emphasis added.) Dur-
ing his rebuttal argument, the prosecutor reiterated this
argument when he stated that Mr. Patterson ‘‘was going
to pawn that—pawn that merchandise, sell it on the
street like he did to Mr. Duarte.’’ (Emphasis added.)
We have reviewed the record, and we cannot find
any evidence that could give rise to a reasonable infer-
ence that the defendant planned to sell Segura’s prop-
erty at a pawn shop, and the state has not brought any
to our attention. It is common belief that people who
steal things often sell them. However, there was no
evidence produced at trial that the defendant planned
to sell the items he attempted to steal. This could be
interpreted as an attempt by the prosecutor to paint
the defendant as an experienced criminal.
b
Hypothetical Question
We also agree with the defendant’s claim that the
prosecutor, in essence, argued facts that were not in
evidence when the prosecutor presented the ‘‘improper,
misleading hypothetical train ride question’’ he had
questioned Sommers about on cross-examination. The
prosecutor stated that ‘‘if . . . you see a stranger on
the train every day, we take the same train together.
We don’t really know each other’s names, we don’t talk.
We just see each other. And I see the same person
commit a crime and I tell police . . . Dr. Sommers said
that there’s no reason to do a double-blind lineup. In
this case, the same facts apply and we did do a line up
and he picked the right guy.’’ (Emphasis added.) During
his rebuttal argument, the prosecutor invited the jury
to ‘‘recall the train example I used with Dr. Sommers.
I gave an example to Dr. Sommers when he was—when
he was sitting there about if you took the same train
every day, you never talked to this person, you never
even—you never had a conversation, didn’t know his
name, never talked to him. You took the train with him
and you recognized him from just from that train.
. . . Dr. Sommers sat there and said there would be
no reason to even do a lineup . . . [H]e said that that
was enough. If you saw somebody doing a crime, even
if you didn’t know their name, didn’t—and never really
talked to him and just saw him on the train the same
time every day. You saw that person commit a crime,
that that identification would be accurate . . . the
same facts apply. Mr. Segura had seen the . . . defen-
dant . . . in the past. . . . He saw him around the
neighborhood . . . .’’ (Emphasis added.)
We understand that the use of hypotheticals in an
argument inherently poses challenges to the advocate.
Given the circumstances in the present case, however,
we conclude that the facts in the hypothetical did not
accurately reflect the evidence adduced at trial. See
State v. Leroy, 38 Conn. App. 282, 286, 661 A.2d 106(‘‘[t]he facts assumed in a hypothetical question must
have their basis in the evidence on the record’’ [internal
quotation marks omitted]), cert. denied, 235 Conn. 904,
665 A.2d 904 (1995). The hypothetical posited that one
would be more likely to make an accurate identification
of an individual if he or she saw that individual every
day at the same time and in the same place as opposed
to never having seen that individual before. In the pre-
sent case, neither Segura nor Duarte testified that they
observed the defendant every day at the same time and
in the same place. Rather, Segura testified that he had
only seen the defendant on a couple of occasions ‘‘[i]n
the store, [and] out on the street,’’ and Duarte had
only seen the defendant on three or four occasions in
different places. Because the facts in the hypothetical
were wholly different from the facts that were adduced
at trial, the argument was improper.
2
Mischaracterization of Expert Testimony
The defendant claims that the prosecutor mischarac-
terized Sommers’ testimony. We agree in part with
the defendant.
First, the prosecutor stated that ‘‘Dr. Sommers said
if an [identification] is done quickly, you point to that
photo quickly, that increases your accuracy.’’ Second,
the prosecutor stated that ‘‘Dr. Sommers said that . . .
a photo lineup didn’t even need to be done and that
[Duarte’s and Segura’s] identification[s] [were]
enough.’’ (Emphasis added.) The prosecutor next stated
that ‘‘[the police officers] weren’t even doing anything
that they had to do. Dr. Sommers said it. They didn’t
have to do [the photographic lineup].’’20 (Emphasis
added.)
We conclude that the first comment regarding the
speed with which an identification is made was proper.
The prosecutor merely invited the jury to make the
reasonable inference that because Sommers testified
that an identification is more likely to be accurate if one
makes it quickly, Segura’s and Duarte’s identifications
were accurate due to the speed in which they made the
identifications. We conclude, however, that the second
set of comments regarding the need for a lineup were
improper. We acknowledge that prosecutors must be
given some leeway in ‘‘the heat of argument’’; (internal
quotation marks omitted) State v. Medrano, supra, 308
Conn. 611; but our review of the record reveals no
testimony during which Sommers explicitly stated that
a ‘‘photo lineup didn’t need to be done’’ in the present
case and that it was unnecessary for police to conduct
a photographic lineup with Segura and Duarte. Instead
of urging the jury to make a reasonable inference from
Sommers’ testimony that the identifications were accu-
rate, the prosecutor prefaced his statements with ‘‘Som-
mers said that,’’ which communicated to the jury that
the prosecutor was recollecting actual statements made
by Sommers. See State v. Ross, supra, 151 Conn. App.
698–99 (prefacing phrases with ‘‘ ‘he stated’ ’’ and ‘‘ ‘he
told you’ ’’ improperly ‘‘place[d] words in the mouth of
a witness’’); State v. Sargent, 87 Conn. App. 24, 40, 864
A.2d 20 (prefatory phrase that ‘‘[the witness] indicated
to you’’ conveyed to jury that prosecutor was recounting
witness’ actual testimony), cert. denied, 273 Conn. 912,
870 A.2d 1082 (2005). Therefore, the prosecutor in part
improperly mischaracterized Sommers’ testimony.
3
Appealing to the Emotions of the Jury
The defendant claims that the prosecutor improperly
appealed to the emotions of the jury. We disagree.
The prosecutor stated that Segura and Espitia were
‘‘pretty much teenagers’’ and that this was a ‘‘very stress-
ful event.’’ The prosecutor also stated that Segura and
Espitia did not know ‘‘if [the incident] was a life or
death situation.’’
‘‘It has long been held that [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . When the prosecutor appeals to emotions,
he invites the jury to decide the case, not according to
a rational appraisal of the evidence, but on the basis
of powerful and irrelevant factors which are likely to
skew that appraisal. . . . Therefore, a prosecutor may
argue the state’s case forcefully, [but] such argument
must be fair and based upon the facts in evidence and
the reasonable inferences to be drawn therefrom. . . .
Nonetheless, closing arguments often have a rough and
tumble quality about them, [and] some leeway must be
afforded to the advocates in offering arguments to the
jury in final argument. [I]n addressing the jury, [c]ounsel
must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument.’’ (Citation omitted; internal quotation
marks omitted.) State v. Cromety, 102 Conn. App. 425,
433–34, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931
A.2d 932 (2007).
After reviewing the record, we conclude that the pros-
ecutor based his comments on facts that were drawn
from the evidence and that the jury could have drawn
reasonable inferences from these facts. The prosecu-
tor’s comments were not calculated to lead the jury to
find the defendant guilty out of sympathy for Segura and
Espitia. Instead, the prosecutor took the opportunity to
cast Segura and Espitia in a sympathetic light without
distracting the jury from the main point of his argument,
mainly, that the defendant was the person responsible
for attempting to steal Segura’s property. See, e.g., State
v. Ceballos, 266 Conn. 364, 394–95, 832 A.2d 14 (2003).
We conclude that the prosecutor did not improperly
appeal to the emotions of the jury.
4
Expressing Personal Opinion
Finally, the defendant claims that the prosecutor
impermissibly expressed his personal opinion about the
credibility of the identification evidence. We disagree.
The prosecutor argued that the police ‘‘had four iden-
tifications ten minutes after the crime. . . . [The pho-
tographic lineup identification by Segura] wasn’t
necessary for me to bring charges against [the defen-
dant]. I already had the identification ten minutes after
this crime had already occurred.’’
‘‘[A] prosecutor may not express his own opinion,
directly or indirectly, as to the credibility of the wit-
nesses. . . . Nor should a prosecutor express his opin-
ion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . It is not, however, improper for the pros-
ecutor to comment upon the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .
‘‘Although prosecutors generally should try to avoid
using phrases that begin with the pronoun I . . . we
recognize that the use of the word I is part of our
everyday parlance and . . . because of established
speech patterns, it cannot always easily be eliminated
completely from extemporaneous elocution. . . . Fur-
thermore, [t]he state’s attorney should not be put in
the rhetorical straightjacket of always using the passive
voice, or continually emphasizing that he is simply say-
ing I submit to you that this is what the evidence shows
. . . . Therefore, if it is clear that the prosecutor is
arguing from the evidence presented at trial, instead of
giving improper unsworn testimony with the suggestion
of secret knowledge, his or her occasional use of the
first person does not constitute misconduct. (Citations
omitted; internal quotation marks omitted.) State v.
Luster, 279 Conn. 414, 435–36, 902 A.2d 636 (2006).
Contrary to the defendant’s characterization of the
prosecutor’s comment, the prosecutor did not give a
personal opinion. We note that the prosecutor used the
term ‘‘I’’ in his statement, but he merely highlighted to
the jury the evidence presented at trial, namely, that
Segura had seen the defendant three times in his home
and once when he was walking outside. The argument
explains why the prosecutor charged the defendant,
not whether he believed the identification was accurate.
Thus, the prosecutor did not commit an impropriety.
B
Due Process Analysis
Because we conclude that the prosecutor committed
improprieties, we now turn to the second step of our
two part analysis. ‘‘To determine whether any improper
conduct by the [prosecutor] violated the defendant’s
fair trial rights is predicated on the factors set forth
in [Williams], with due consideration of whether that
[impropriety] was objected to at trial. . . . These fac-
tors include [1] the extent to which the [impropriety]
was invited by defense conduct or argument . . . [2]
the severity of the [impropriety] . . . [3] the frequency
of the [impropriety] . . . [4] the centrality of the
[impropriety] to the critical issues in the case . . . [5]
the strength of the curative measures adopted . . . and
[6] the strength of the state’s case.’’ (Internal quotation
marks omitted.) State v. Devito, 159 Conn. App. 560,
573, 124 A.3d 14, cert. denied, 319 Conn. 947, 125 A.3d
1012 (2015). ‘‘[W]hen a defendant raises on appeal a
claim that improper remarks by the prosecutor deprived
the defendant of his constitutional right to a fair trial,
the burden is on the defendant to show, not only that
the remarks were improper, but also that, considered
in light of the whole trial, the improprieties were so
egregious that they amounted to a denial of due pro-
cess.’’ State v. Payne, 303 Conn. 538, 562–63, 34 A.3d
370 (2012).
After considering the Williams factors, and while
remaining cognizant of the fact that the defendant
objected to only one of the improprieties; see State v.
Stevenson, 269 Conn. 563, 591, 849 A.2d 626 (2004);
we conclude that the prosecutor’s comments during
closing and rebuttal arguments did not deprive the
defendant of a fair trial.
The first factor, whether the defendant invited the
improprieties, weighs in favor of the defendant. There
is nothing in the record to suggest that the defendant
invited the prosecutor to make any of the comments
at issue.
The second factor, the severity of the improprieties,
weighs in favor of the state. Defense counsel did not
object to the pawn shop comments or to the use of the
hypothetical. ‘‘[W]e consider it highly significant that
defense counsel failed to object to any of the improper
remarks, request curative instructions, or move for a
mistrial. Defense counsel, therefore, presumably [did]
not view the alleged impropriety as prejudicial enough
to seriously jeopardize the defendant’s right to a fair
trial. . . . Given the defendant’s failure to object, only
instances of grossly egregious [impropriety] will be
severe enough to mandate reversal.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
State v. Thompson, 266 Conn. 440, 479–80, 832 A.2d 626(2003). We do not consider the prosecutor’s comments
to even approach the sort of grossly egregious miscon-
duct requiring reversal. To the extent that defense coun-
sel objected to the mischaracterization of Sommers’
testimony, we note that defense counsel failed to take
any curative measures, such as asking the court for
a jury instruction to disregard the comments, which
indicates that defense counsel presumably did not think
that the comments were so severe as to have a negative
effect on the jury. Whether defense counsel objected
to the impropriety, moreover, is only one factor in
determining whether an impropriety was so severe as
to affect the outcome of a trial—the existence of an
objection, by itself, is not enough to deem an impropri-
ety so severe that it violates the defendant’s right to a
fair trial. See, e.g., State v. Warholic, 278 Conn. 354,
399, 897 A.2d 569 (2006) (‘‘despite defense counsel’s
objection to this line of questioning, [the impropriety]
was not severe’’).
The third factor, the frequency of the comments,
weighs in favor of the state. The pawn shop comment
and the mischaracterization of Sommers’ testimony
were confined to a small portion of closing and rebuttal
arguments, ‘‘where we typically allow some latitude
. . . .’’ (Internal quotation marks omitted.) State v.
Ross, supra, 151 Conn. App. 701. While the prosecutor
used the hypothetical during both cross-examination
and closing arguments, and it cannot be considered an
isolated incident; see State v. Warholic, supra, 278
Conn. 398; it is significant to note that the hypothetical
was only mentioned three times throughout the trial,
two of which that were confined to closing and rebuttal
arguments. See State v. Medrano, supra, 308 Conn. 620.
The fourth factor, whether the improprieties related
to a critical issue in the case, does not clearly favor
either party. The main issue in the case was the identity
of the perpetrator of the crime. The pawn shop state-
ments were unrelated to this issue, as they were only
comments about what the defendant planned to do with
the stolen items. However, both the hypothetical and
the mischaracterization of Sommers’ testimony com-
mented on the reliability of Segura’s and Duarte’s identi-
fications. Because the prosecutor’s case primarily relied
on the reliability of these identifications, the statements
were relevant to the critical issue of the case. See State
v. Sargent, supra, 87 Conn. App. 41.
The fifth factor, whether the court gave curative
instructions, weighs in favor of the state. The court did
not give a special instruction to the jury to disregard
the statements at issue. The court did, however, give
a general instruction that closing arguments are not
considered evidence but are only ‘‘intended to help [the
jury] interpret the evidence’’ and that if a member of
the jury remembers a fact differently than what was
presented during closing arguments, his or her ‘‘mem-
ory . . . controls.’’ Importantly, ‘‘the defendant, by fail-
ing to bring them to the attention of the trial court,
bears much of the responsibility for the fact that these
claimed improprieties went uncured.’’ (Internal quota-
tion marks omitted.) State v. Stevenson, supra, 269
Conn. 597. In the present case, the failure by the defen-
dant to request specific curative instructions presum-
ably indicates that defense counsel did not believe that
the general instructions given by the court failed to
protect his rights. See id. Moreover, the defendant has
not demonstrated that the jury failed to follow the
court’s instructions.
The sixth factor, the strength of the state’s case,
weighs in favor of the state. It presented a solid case
against the defendant for both the burglary in the sec-
ond degree charge and attempted larceny in the fifth
degree charge. For the burglary charge, Segura testified
that he clearly saw the defendant’s face while the defen-
dant was in his residence. He also quickly identified the
defendant in a double-blind, sequential photographic
lineup and from the news article as the man who was
in his residence. Duarte testified that he saw the defen-
dant’s face as he exited Segura’s residence, and he iden-
tified the defendant in a double-blind, sequential
photographic lineup more than one year later as the
man he saw exiting the residence. A jury reasonably
could have inferred that the defendant was in Segura’s
residence with the intent to commit a crime. For the
attempted larceny charge, Segura testified he found
his property on his couch after the defendant left his
residence. He also testified that his brother’s coin jar
had been moved. A jury reasonably could have inferred
that the defendant moved all of the items in an attempt
to take them out of the residence without Segura’s per-
mission.
After considering all of the Williams factors in the
context of the entire trial, we conclude that the defen-
dant was not deprived of his right to a fair trial because
there was no reasonable likelihood that the jury’s ver-
dict would have been different absent the sum of the
improprieties.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘A double-blind photographic identification procedure is one in which
the officer conducting [the procedure] has not been involved in the investiga-
tion and does not know who the target is.’’ (Internal quotation marks omit-
ted.) State v. Grant, 154 Conn. App. 293, 305 n.4, 112 A.3d 175 (2014), cert.
denied, 315 Conn. 928, 109 A.3d 923 (2015).
2
‘‘A sequential photographic identification procedure involve[s] showing
the witness the suspect and other fillers on the identification procedure one
at a time, rather than the traditional practice of simultaneous presentation.’’
(Internal quotation marks omitted.) State v. Grant, 154 Conn. App. 293, 305
n.5, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).
3
Peter Dispagna, a sergeant of the Stamford Police Department (depart-
ment), testified during the suppression hearing that the department is no
longer permitted to use ‘‘photo arrays.’’ Instead, the department uses photo-
graphic lineups. A photographic lineup is a standard procedure in which a
witness is shown eight photographs, and there is one photograph per page.
See General Statutes § 54-1p.
4
Duarte testified that he saw the defendant ‘‘in the street’’ approximately
three or four times. It is unclear from Duarte’s testimony as to whether he
purchased the toy bubble gun from the defendant on the street or some-
where else.
5
The defendant does not argue that Segura’s identification was the product
of unnecessarily suggestive police conduct but only contends that Duarte’s
identification was the product of unnecessarily suggestive police conduct.
6
The defendant also claims that the photographic lineup identifications
were otherwise unreliable. Because we conclude that the photographic
lineups were not unduly suggestive, we need not address this claim. See
State v. Grant, 154 Conn. App. 293, 299 n.1, 112 A.3d 175 (2014) (‘‘[b]ecause
we determine that the identification procedures utilized by the police were
not unnecessarily suggestive, it is unnecessary for us to address . . . his
[unreliability] claim’’), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).
7
Because we conclude that the private actor identification was not subject
to unnecessarily suggestive conduct, we do not reach the question of whether
the identifications were otherwise unreliable. See State v. Holliman, 214
Conn. 38, 49, 570 A.2d 680 (1990) (‘‘[s]ince we conclude that the [private
actor] identification procedure was not unnecessarily suggestive, we will
not gratuitously lengthen this opinion by considering the reliability of the
resulting identification’’).
8
Dispagna chose the fourteen other photographs used in the two eight
person photographic lineups through the standard computer system utilized
by the department called ‘‘RMS,’’ or record management system (system).
The system contains an icon that allows an officer to enter certain parame-
ters into the system, such as age, weight, height, and hair type. Then, the
system brings up photographs of individuals that match the parameters.
9
Dispagna testified during the suppression hearing that as opposed to
matching ages, he tried to ‘‘match the facial wrinkles’’ of the defendant to
the other individuals. In addition, Dispagna testified that the defendant did
not ‘‘look a day over thirty-five so [Dispagna] fe[lt] very comfortable in
showing . . . younger m[e]n.’’ Neither the dates of birth nor the ages of
the individuals were included in the photographic lineup shown to Segura.
10
The hair styles included ‘‘bald,’’ ‘‘very slight,’’ ‘‘close on the sides [and]
a little lower on top,’’ and ‘‘flat-top.’’
11
Most of the individuals only had slight amount of hair. Only one individ-
ual was characterized has having ‘‘a lot of hair.’’
12
The court found that ‘‘there was nothing improper about the degree of
likeness shared by the individuals pictured in each photo array. There was
nothing improper about the number of photos used, the defendant’s photo
was not prominently displayed or otherwise impermissibly highlighted, there
is no evidence that either witness was told that the suspect was in the array,
there is no evidence that the officers administering the procedures did
anything to influence the two witnesses in making their identification,’’ and,
therefore, the defendant ‘‘failed to meet his burden of proving that the photo
arrays were unnecessarily suggestive.’’
The court also found that ‘‘the identifications were reliable based on the
totality of the circumstances.’’
13
The court found that ‘‘based on the testimony of Mr. Segura and Mr.
Duarte, as well as the other evidence presented, the court does not find
their conduct to be unnecessarily suggestive.’’
The court also found that under the ‘‘the totality of the circumstances,’’
their conduct was ‘‘reliable at a level sufficient for the issue to go to the jury.’’
14
Both identification procedures were double-blind, sequential photo-
graphic lineups, which the defendant in his brief does not contend was an
unnecessarily suggestive procedure.
15
In conducting the required two-pronged inquiry of whether Segura’s
conduct was unnecessarily suggestive and whether the identification was
nevertheless reliable, the trial court acknowledged Chief Justice Rogers’
concurrence in Johnson, in which the chief justice suggested that the
Supreme Court should abandon the two-pronged test adopted in Holliman
and ‘‘instead hold, as did the United States Supreme Court in Perry v. New
Hampshire, U.S. , 132 S. Ct. 716, 730, 181 L. Ed. 2d 694 (2012), that
potentially unreliable eyewitness identifications resulting from suggestive
procedures undertaken by private actors should be evaluated like any other
potentially unreliable evidence—namely, by a fully informed, properly
instructed jury within the confines of a trial employing the usual array of
constitutional safeguards.’’ State v. Johnson, supra, 312 Conn. 707 (Rogers,
C. J., concurring). The Chief Justice articulated a number of reasons why
the two-pronged inquiry should be eliminated; see id., 710–13; and we agree
that the safeguards discussed in her concurring opinion are sufficient to
ensure that eyewitness identifications admitted at trial are reliable.
16
In coming to this conclusion, we note that there is very little case law
that discusses the issue of whether an eyewitness identification should be
excluded because it was the product of unnecessarily suggestive private
conduct and is otherwise unreliable. See, e.g., State v. Johnson, supra, 312
Conn. 706 (declining to review defendant’s claim that victim’s identification
was product of unnecessarily suggestive private conduct because defendant
did not preserve claim for review); State v. Holliman, supra, 214 Conn.
47–48 (private actor’s identification was not unnecessarily suggestive in
light of exigent circumstances); see also Perry v. New Hampshire, supra,132 S. Ct. 730 (preliminary judicial assessment of eyewitness identifications
made under suggestive circumstances are not necessary because reliability
can be adequately tested through general rights and opportunities granted
to defendants in criminal trials); People v. Marte, 12 N.Y.3d 583, 589, 912
N.E.2d 37, 884 N.Y.S.2d 205 (2009) (declining to create constitutional rule
of exclusion to cases where identification results from suggestive conduct
by private citizen), cert. denied, 559 U.S. 941, 130 S. Ct. 1501, 176 L. Ed. 2d
117 (2010).
17
The defendant seeks redress pursuant to the plain error doctrine for
both evidentiary claims. ‘‘[The plain error] doctrine, codified at Practice
Book § 60-5, is an extraordinary remedy used by appellate courts to rectify
errors committed at trial that, although unpreserved, are of such monumental
proportion that they threaten to erode our system of justice and work a
serious and manifest injustice on the aggrieved party. . . . [T]he plain error
doctrine is reserved for truly extraordinary situations [in which] the exis-
tence of the error is so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly.’’ (Internal quotation marks omit-
ted.) State v. Sease, 147 Conn. App. 805, 815 n.7, 83 A.3d 1206, cert. denied,
311 Conn. 932, 87 A.3d 531 (2014). We conclude that the defendant fails to
meet this demanding standard.
18
The defendant also claims that the prosecutor committed prosecutorial
improprieties during his cross-examination of Sommers. We decline to
review his unpreserved evidentiary claim, ‘‘which masquerades as a constitu-
tional claim of prosecutorial misconduct.’’ State v. Lindo, 75 Conn. App.
408, 421, 816 A.2d 64, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).
19
The defendant did object to the prosecutor mischaracterizing Sommers’
testimony during rebuttal arguments.
20
The defendant also claims that the prosecutor mischaracterized Som-
mers’ testimony when he stated that Segura ‘‘identified [the defendant] six
times,’’ when he stated that Segura made ‘‘three identifications [of the
defendant] while he was behind the door,’’ and when he stated that Segura
‘‘made four identifications ten minutes after the crime.’’ (Emphasis added.)
The defendant argues that Sommers actually testified that in order for an
observation to be considered an ‘‘identification’’ in the scientific sense, it
must comport with ‘‘three stages of memory,’’ so labeling Segura’s observa-
tions as ‘‘identifications’’ mischaracterized Sommers’ testimony and bol-
stered Segura’s credibility. We find no merit to this argument because when
reviewing the comments in context, the prosecutor did not refer to Sommers’
testimony but merely to the fact that Segura observed the defendant during
the incident and was able to choose the defendant from a photographic
lineup.