State v. Scott ( 2019 )

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STATE OF CONNECTICUT v. EMMIT SCOTT
(AC 38035)
DiPentima, C. J., and Alvord and Moll, Js.
Syllabus
Convicted of the crime of robbery in the first degree in connection with his
alleged conduct in robbing the victims, G and R, of money and cell
phones, the defendant appealed to this court, claiming, inter alia, that
the trial court deprived him of his federal and state rights to due process
when it denied his motion to suppress R’s out-of-court and subsequent
in-court identifications of him. The defendant and an accomplice, H,
had approached G and R in the early morning hours while they were
in G’s car in the driveway of R’s home. The defendant went to the front
passenger side of the vehicle and, at gunpoint, demanded money and
drugs, struck R with the gun, forced him to get out of the car, and took
money and his cell phone from him. The defendant and H then searched
the car and took G’s cell phone and cash from the vehicle. H fatally
shot G as the defendant and H left the scene. The police later learned
that the defendant and H were to be arraigned in court on unrelated
charges. L, an inspector with the state’s attorney’s office, accompanied
R to the courthouse, where R watched the arraignment proceeding and
thereafter identified the defendant and H as the assailants. H thereafter
was convicted of several crimes after he was tried separately before
the same trial judge who presided at the defendant’s trial. The trial judge
at H’s trial also denied H’s motion to suppress R’s identifications, which
involved the same identification procedure, and during H’s sentencing
indicated admiration for R for his conduct in cooperating with law
enforcement and testifying. On H’s appeal, the Supreme Court in State
v. Harris (330 Conn. 91), modified the reliability standard under the
federal constitution set out in Neil v. Biggers (409 U.S. 188) with respect
to the admissibility of eyewitness identification testimony to provide
broader protection under article first, § 8, of the Connecticut constitu-
tion. Held:
1. The defendant could not prevail on his claim that he was deprived of his
right to due process under the federal and state constitutions when the
trial court denied his motion to suppress the out-of-court and subsequent
in-court identifications of him by R:
a. Even if R’s identification of the defendant at the arraignment was
unnecessarily suggestive, it was sufficiently reliable under the factors
set forth in Biggers, as the trial court found, under the first two factors,
that R was attentive during the encounter and had ample time to observe
the assailant, who had nothing covering his face, that R was face to
face with the assailant in a well lit area while the assailant went through
R’s pockets, and that R was next to the car while the defendant rum-
maged through it, and those findings were supported by the evidence,
as the court was entitled to credit R’s testimony that the assailants were
at the car a little more than ten minutes and that the car’s interior lights
illuminated the defendant’s face as he as rummaged through the car, R
had a good view of the assailant for a considerable period of time, and
R was not under the influence of drugs or alcohol at the time of the
robbery and consciously tried to record a memory of the passenger side
assailant so that he could later retaliate against him; moreover, under the
third Biggers factor, R’s detailed description of the defendant conformed
with considerable accuracy to information in the record concerning the
defendant’s physical appearance, as the defendant did not dispute that
he had a full beard, consistent with R’s description of the assailant at
the time of the robbery, any difference in appearance between R’s
description of the assailant’s beard and the appearance of the defendant’s
beard two weeks later at the arraignment did not render R’s identification
of the defendant unreliable, the fourth Biggers factor, which pertained
to R’s level of certainty, strongly favored the reliability of the identifica-
tion, as R stated that he was 100 percent certain immediately after he
identified the defendant at the arraignment, and the fifth Biggers factor,
the two week length of time between the crime and the arraignment,
did not undermine the reliability of R’s identification; furthermore, R’s
failure to identify the defendant in police photographic arrays prior to
the arraignment did not undermine the reliability of his identification
of the defendant at the arraignment, as a photograph of the defendant
in one of the arrays had been outdated, R testified that it was the
defendant’s whole body structure, demeanor and the way he walked
that caused him to be 100 percent certain of his identification, the court
was not required to credit the testimony of the defendant’s eyewitness
identification expert as to whether R’s identification was undermined
by certain factors and was entitled to afford weight to the factors on
which it relied, and because R’s pretrial identification of the defendant
was sufficiently reliable, the court correctly denied the defendant’s
motion to suppress R’s subsequent in-court identification of him.
b. The defendant’s claim that R’s identifications of him should have
been suppressed under article first, § 8, of the Connecticut constitution
was unavailing: the trial court’s application of the Biggers framework
was harmless, as it was not reasonably possible that the court would have
reached a different conclusion under the modified reliability standard
adopted in Harris, and the defendant’s claim to the contrary notwith-
standing, the variable of unconscious transference—the mistaken iden-
tity of a face seen in one context as a face seen in another context—
was not fatal to the trial court’s application of Biggers, as the factors
in Harris were generally comparable to the Biggers factors and were
intended to more precisely define the focus of the relevant inquiry;
moreover, there was no indication in the record that the trial court
declined to consider any portion of the testimony of the defendant’s
eyewitness identification expert because it believed that the evidence
was not relevant under Biggers, and the defendant did not identify any
evidence that he was prevented from presenting at the suppression
hearing or at trial on the ground that it was not relevant under Biggers.
2. The evidence was sufficient to support the defendant’s conviction of
robbery as against G:
a. The jury could have reasonably inferred that R knew that G had cash
and his cell phone in the car prior to the defendant’s and H’s search of
the vehicle, and that either the defendant, H or both had taken the
property: R knew that G kept cash in the car’s center console, the
defendant and H searched the car until one of them said, ‘‘bingo, I got
it,’’ and then they exited the car and left, and R concluded that G’s cash
and cell phone were missing after checking the car to see if the defendant
and H had taken G’s cash; moreover, the defendant was not engaged
in innocent, ordinary conduct when he approached the car with a gun,
asked G and R where the drugs and money were, and struck R with
the gun before searching the car, and there was no testimony regarding
other possible explanations for the missing money and cell phone.
b. Notwithstanding the defendant’s claim that he could have been con-
victed of robbery in the first degree only as an accessory, the evidence
was sufficient to prove that he acted as a principal, as he and H
approached G’s car at the same time, both had guns, the defendant
asked G and R where the drugs and money were, struck R with his gun,
and forced G and R to exit the car, and both the defendant and H
searched the car and left once G’s cell phone and cash were found
and taken.
3. The trial court did not abuse its discretion in denying the defendant’s
motion to disqualify the trial judge: there was no concern that the trial
judge would have felt motivated, in ruling on the defendant’s motion to
suppress, to vindicate his conclusion at H’s trial with respect to the
identification of H, the trial judge was not confronted with the same
question in considering the defendant’s motion to suppress R’s identifica-
tion of him that he considered in H’s motion to suppress, and heard
different testimony and considered different evidence at the defendant’s
trial, which included the accuracy of R’s description of the passenger
side assailant and whether the other arraignees at the arraignment were
similar in appearance to the defendant, and the judge’s ruling on the
defendant’s motion to suppress involved considerations that were inde-
pendent of R’s credibility; moreover, the trial judge in the defendant’s
case did not make any statement to indicate that he prejudged the
ultimate issues on which he was to rule, and his remarks about R at
H’s sentencing did not indicate that he prejudged the issues raised in
the defendant’s motion to suppress or reflect an opinion so extreme as
to display clear inability to render fair judgment.
Argued January 5, 2017, and February 4, 2019—officially
released July 23, 2019
Procedural History
Substitute information charging the defendant with
two counts of the crime of robbery in the first degree,
and with the crimes of murder and felony murder,
brought to the Superior Court in the judicial district of
New Haven, where the court, B. Fischer, J., denied
the defendant’s motion to suppress certain evidence;
thereafter, the matter was tried to the jury; subse-
quently, the court, Clifford, J., denied the defendant’s
motion to disqualify the judicial authority; verdict of
guilty of two counts of robbery in the first degree; there-
after, the court, B. Fischer, J., rendered judgment in
accordance with the verdict, from which the defendant
appealed to this court. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, state’s attorney, Michael Dearington, former state’s
attorney, and Brian K. Sibley, Sr., senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Emmit Scott, appeals
from the judgment of conviction, rendered following a
jury trial, of two counts of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (4).1 On
appeal, the defendant claims that (1) the trial court
deprived him of his right to due process under the
federal and state constitutions when it denied his
motion to suppress an out-of-court and subsequent in-
court identification of him, (2) there was insufficient
evidence to support his conviction of robbery as against
one of the victims, and (3) the court, Clifford, J., abused
its discretion by denying the defendant’s motion to dis-
qualify Judge Brian Fischer. We affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts. On July 31, 2012, the victims, Ruben Gonzalez
and Jose Rivera, had been working together during the
night shift at a warehouse in the town of Newington.
When their shift ended at about 2:30 a.m., Gonzalez
drove Rivera back to Rivera’s home located at 49
Atwater Street in the city of New Haven. The victims
arrived at Rivera’s home at about 3 a.m., at which point
Gonzalez parked in the driveway. They remained in the
car, and Rivera began rolling a blunt of marijuana for
Gonzalez. Approximately five minutes later, Rivera
noticed three individuals, whom he did not recognize,
riding bicycles in the street and passing by his house
at least twice. Rivera became concerned and suggested
to Gonzalez that they go to his backyard, but Gonzalez
told him that he felt comfortable remaining in his vehi-
cle. Moments later, two of the individuals, the defendant
and Ernest Harris, approached the car on foot, with
the defendant on the passenger side and Harris on the
driver’s side. The third individual remained in the street
on a bicycle.2
The defendant and Harris each had a gun. The defen-
dant asked where the drugs and money were and
ordered the victims to open their doors. The victims
initially refused to exit the car but did so after the
defendant struck Rivera on the head with his gun. After
the victims exited the vehicle, the defendant searched
Rivera and took $10 and Rivera’s cell phone from his
pants pockets. The defendant and Harris then rum-
maged through the interior of the car for approximately
five minutes before finding and taking Gonzalez’ cash
and cell phone.3 As the defendant and Harris left the
scene, Gonzalez was shot twice and subsequently died
as a result of his injuries.4 The entire incident lasted
approximately ten minutes.
Jeffrey King, Jr., an officer with the New Haven Police
Department, was dispatched to 49 Atwater Street in
response to a call that a person had been shot. Officer
King arrived to the scene at approximately 3:30 a.m.5
Rivera told Officer King that three males had been there,
and that the passenger side assailant6 was a black male,
approximately five feet, five inches tall and 160 pounds,
and had been wearing a white hat, backwards, and a
black T-shirt. Francis Melendez, a detective with the
New Haven Police Department, recovered two spent
cartridge casings, as well as a ten dollar bill and coins
from the ground next to Gonzalez’ car. Inside the car,
Detective Melendez located a few small, translucent
‘‘Ziploc type’’ bags containing a powder like substance,7
as well as coins inside the center console. Detective
Melendez was able to lift several fingerprints from Gon-
zalez’ car, which he sent to the West Haven Police
Department for processing.
At approximately 4 a.m., Rivera met with Nicole
Natale and David Zaweski, detectives with the New
Haven Police Department, and again provided descrip-
tions of the assailants. He described the passenger side
assailant as having a ‘‘Rick Ross’’8 type beard, which
had been neatly groomed and was about one to two
inches off of his face. The next day, on August 1, 2012,
Detective Natale brought Rivera to meet with a sketch
artist. Rivera was able to provide the sketch artist with
a description of the passenger side assailant, and in
that description, noted that the passenger side assailant
had a full beard. That same day, Detective Natale pre-
sented Rivera with two separate photographic arrays.
Neither photographic array included the defendant.
Rivera did not identify anyone in the photographic
arrays as either the driver’s side assailant or the passen-
ger side assailant.
During the course of her investigation, Detective
Natale received information that an individual with the
nickname Semi might have been involved in the July
31, 2012 incident, and later learned that the defendant
had the nickname Semi. Thereafter, on August 8, 2012,
Detective Natale presented Rivera with a third photo-
graphic array,9 which included a photograph of the
defendant that had been taken in March, 2011, one and
one-half years earlier. Rivera did not make an identifica-
tion during this photographic array procedure.10
On August 10, 2012, Detective Natale and Detective
Zaweski interviewed the defendant.11 The defendant ini-
tially denied that he was at 49 Atwater Street on the
night of July 31, 2012. Eventually, the defendant admit-
ted that he had been at that location, with Harris and a
third individual with the nickname Do.12 He maintained,
however, that he had not been there when Gonzalez
was shot. Rather, he told the police that, earlier that
morning, he had purchased marijuana from Gonzalez
from the passenger side of his car. The defendant stated
that he, Harris, and Do then rode their bicycles down
the street, but that Do and Harris turned around to
return toward the direction of 49 Atwater Street. The
defendant told the police that he ultimately decided to
return to 49 Atwater Street ‘‘[t]o see what [was] . . .
taking them so long’’ and saw that everyone was outside
of the car. He saw that Do had his gun out, and he
heard Gonzalez say something to the effect of, ‘‘I know
who you are,’’ or, ‘‘I know y’all faces.’’ The defendant
maintained that, at this point, he turned around and
started riding his bicycle toward Pine Street, which was
adjacent to Atwater Street, when he heard gunshots.13
He denied knowing who shot Gonzalez. That same day,
after the police had interviewed the defendant, a finger-
print found on the front passenger side door of Gonza-
lez’ car was identified as belonging to the defendant.14
Thereafter, the police learned that both the defendant
and Harris were due to be arraigned on unrelated
charges in New Haven on August 13, 2012. Robert F.
Lawlor, an inspector with the state’s attorney’s office
in the judicial district of New Haven, accompanied
Rivera to the courthouse on that day so that Rivera
could observe the arraignments and possibly identify
the driver’s side and passenger side assailants. Although
Inspector Lawlor knew that the defendant and Harris
were to be arraigned, he did not inform Rivera of that
fact, and he never made Rivera aware of the defendant’s
name. The defendant and Harris were among fourteen
arraignees who were in custody awaiting arraignment.
Lawlor and Rivera sat in the front row of the court-
room’s public gallery, with Lawlor seated six to eight
seats away from Rivera. From his vantage point, Rivera
watched the defendant, Harris, and twelve other custo-
dial arraignees, all of whom were handcuffed and sur-
rounded by marshals, enter the courtroom single file
through the courtroom doors. Rivera recognized the
defendant and Harris ‘‘[i]nstantly’’15 when they walked
through the doors. Once he was outside the courtroom,
Rivera told Inspector Lawlor that he was ‘‘100 [percent
certain] that those [were] the guys.’’16
A jury trial followed, at the conclusion of which the
defendant was found not guilty of murder and felony
murder, and guilty of two counts of robbery in the first
degree. The court rendered judgment in accordance
with the jury’s verdict and imposed a total effective
sentence of forty years of imprisonment, execution sus-
pended after thirty years, followed by five years of pro-
bation. This appeal followed.
In connection with this same incident, Harris was
tried separately and convicted of one count of felony
murder, one count of conspiracy to commit robbery in
the first degree, and two counts of robbery in the first
degree. See State v. Harris, 330 Conn. 91, 191 A.3d 119
(2018). Harris appealed, and, on March 9, 2016, our
Supreme Court, pursuant to Practice Book § 65-2, trans-
ferred Harris’ appeal from this court to itself.
This court first heard oral argument in the defendant’s
appeal on January 5, 2017. On March 29, 2017, this court
issued a stay in the defendant’s case pending the final
disposition of Harris’ appeal. On September 4, 2018,
State v. Harris, supra, 330 Conn. 91, was released by
the Supreme Court. Thereafter, this court lifted the
appellate stay and ordered the parties in the present
appeal to file supplemental briefs to address the impact,
if any, of State v. Harris, supra, 91, on this appeal. In
addition to the supplemental briefing, this court ordered
additional oral argument to be held on February 4, 2019.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that the trial court
deprived him of his right to due process under the
federal and state constitutions when it denied his
motion to suppress the out-of-court and subsequent in-
court identification of him by Rivera. Specifically, he
argues that the August 13, 2012 arraignment identifica-
tion procedure was unnecessarily suggestive and that
the resulting identification was not reliable under the
totality of the circumstances. Even assuming that the
identification process at issue in the present case was
unnecessarily suggestive,17 we conclude that Rivera’s
identification of the defendant was sufficiently reliable
to satisfy federal due process requirements. Accord-
ingly, for purposes of the federal constitution, the defen-
dant was not entitled to suppression of those identifica-
tions. Moreover, we conclude that the trial court’s
failure to apply the state constitutional standard set
forth in State v. Harris, supra, 330 Conn. 91, which
provides broader protection than the federal constitu-
tion with respect to the admissibility of eyewitness iden-
tification testimony, was harmless because the court
reasonably could not have reached a different conclu-
sion under that more demanding standard.
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to
trial, the defendant moved to suppress Rivera’s identifi-
cation of him at the arraignment proceeding and any
subsequent identification that he might be asked to
make of the defendant at trial. On January 14 and 15,
2015, the court held a hearing on the motion. In addition
to hearing testimony from Rivera, Inspector Lawlor,
Detective Natale and Michael Udvardy, a private investi-
gator, the court heard testimony from Steven Penrod,
a psychologist, who was present at the hearing as the
defendant’s expert witness on eyewitness identifica-
tions. Dr. Penrod opined that the arraignment identifica-
tion procedure was unnecessarily suggestive. He also
testified as to numerous variables that could have
affected the accuracy of Rivera’s identification of the
defendant. At the conclusion of the hearing, the court
denied the motion in an oral ruling. At trial, Rivera
testified and identified the defendant as the passenger
side assailant.
In a supplemental memorandum of decision issued
after the trial, the court set forth its reasons for denying
the defendant’s motion to suppress. It found that the
arraignment identification procedure was not unneces-
sarily suggestive because, of the thirty-four total arraig-
nees, fifteen to twenty were African-American males,18
and of the custodial arraignees, all were male and the
majority of them were African-American, which
matched the description of the passenger side assailant
that Rivera provided to Detective Natale. Specifically,
the court found that five of the African-American males
who had been arraigned that day were similar to the
defendant, considering their height, weight and age.
The trial court also found that, even if the identification
procedure was unnecessarily suggestive, the identifica-
tion itself was reliable under the totality of the circum-
stances. In support of its conclusion, the trial court
observed the following: Rivera had approximately ten
minutes to observe and view the passenger side assail-
ant during the commission of the crimes; the area was
well illuminated; although the assailant had been wear-
ing a baseball cap, it was worn backwards, which left
his entire face exposed; Rivera was very close to the
assailant during the crimes, and he was face to face
with the assailant as he was going through Rivera’s
pockets taking his money and cell phone; Rivera was
right next to the car as the assailant spent several
minutes rummaging through the car with the car’s inte-
rior light illuminating the defendant’s face and features;
Rivera indicated that the assailant had a distinctive
beard, which he referred to as a ‘‘Rick Ross’’ beard;
Rivera’s attention was not impaired by alcohol or drugs;
Rivera was able to recall the assailant’s approximate
age, height, weight, hairstyle and skin tone, as well as
the clothes he was wearing; at the arraignment, Rivera
had an unobstructed view of the defendant, who walked
within a few feet of him; Rivera immediately identified
the defendant as the passenger side assailant when the
defendant came through the door for his arraignment;
Rivera was 100 percent certain that the defendant was
the passenger side assailant; and the length of time
between the crimes and Rivera’s identification of the
defendant was fewer than fourteen days.
A
The following legal principles govern our analysis
of the defendant’s federal constitutional claim. ‘‘In the
absence of unduly suggestive procedures conducted by
state actors, the potential unreliability of eyewitness
identification testimony ordinarily goes to the weight
of the evidence, not its admissibility, and is a question
for the jury. . . . A different standard applies when
the defendant contends that an in-court identification
followed an unduly suggestive pretrial identification
procedure that was conducted by a state actor. In such
cases, both the initial identification and the in-court
identification may be excluded if the improper proce-
dure created a substantial likelihood of misidentifica-
tion. . . .
‘‘The test for determining whether the state’s use
of an unnecessarily suggestive identification procedure
violates a defendant’s federal due process rights derives
from the decisions of the United States Supreme Court
in Neil v. Biggers, 409 U.S. 188, 196–97, 93 S. Ct. 375,
34 L. Ed. 2d 401 (1972), and Manson v. Brathwaite, 432
U.S. 98, 113–14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
As the court explained in Brathwaite, fundamental fair-
ness is the standard underlying due process, and, conse-
quently, reliability is the linchpin in determining the
admissibility of identification testimony . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Harris, supra, 330 Conn. 100–101. ‘‘Thus, the required
inquiry is made on an ad hoc basis and is two-pronged:
first, it must be determined whether the identification
procedure was unnecessarily suggestive; and second,
if it is found to have been so, it must be determined
whether the identification was nevertheless reliable
based on examination of the totality of the circum-
stances. . . . Furthermore, [b]ecause the issue of the
reliability of an identification involves the constitutional
rights of an accused . . . we are obliged to examine
the record scrupulously to determine whether the facts
found are adequately supported by the evidence and
whether the court’s ultimate inference of reliability was
reasonable. . . . Nevertheless, [w]e will reverse the
trial court’s ruling [on evidence] only [when] there is
an abuse of discretion or [when] an injustice has
occurred . . . and we will indulge in every reasonable
presumption in favor of the trial court’s ruling. . . .
Because the inquiry into whether evidence of pretrial
identification should be suppressed contemplates a
series of [fact bound] determinations, which a trial
court is far better equipped than this court to make,
we will not disturb the findings of the trial court as to
subordinate facts unless the record reveals clear and
manifest error. . . . Finally, the burden rests with the
defendant to establish both that the identification pro-
cedure was unnecessarily suggestive and that the
resulting identification was unreliable.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 101–102.
Assuming that the identification procedure was
unnecessarily suggestive,19 we consider whether the
identification was nevertheless admissible. ‘‘An identifi-
cation that is the product of an unnecessarily suggestive
identification procedure will nevertheless be admissi-
ble, despite the suggestiveness of the procedure, if the
identification is reliable in light of all the relevant cir-
cumstances. . . . As mandated in Neil v. Biggers,
supra, 409 U.S. 188, and reiterated by the court in Man-
son v. Brathwaite, supra, 432 U.S. 98, for federal consti-
tutional purposes, we determine whether an identifica-
tion resulting from an unnecessarily suggestive
procedure is reliable under the totality of the circum-
stances by comparing the corrupting effect of the sug-
gestive identification against factors including the
opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of his prior description of the criminal, the
level of certainty demonstrated at the [identification],
and the time between the crime and the [identifica-
tion].’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Harris, supra, 330 Conn. 108. Here, as in
Harris, the trial court made express findings regarding
each of the Biggers factors, which we now address
in turn.20
With respect to the first two Biggers factors, the trial
court found that Rivera had ‘‘ample time’’—approxi-
mately ten minutes—to observe the assailant. More-
over, the court found that Rivera observed the assailant
from a ‘‘very close’’ distance, and was face to face with
the assailant as the assailant was going through his
pockets, and right next to the car while the defendant
rummaged through it, in a well lit area. The trial court
further found that Rivera was attentive21 during his
encounter with the assailant, who had nothing covering
his face.22 These findings strongly support the trial
court’s conclusion concerning the reliability of Rivera’s
identification of the defendant as the passenger side
assailant, even assuming that the state used a flawed
identification procedure. See State v. Harris, supra, 330
Conn. 109.
The defendant, however, challenges the trial court’s
findings as clearly erroneous. In particular, he maintains
that Rivera initially told Detective Natale that the inci-
dent ‘‘happened very quickly,’’ contrary to the court’s
finding that Rivera had approximately ten minutes to
observe the assailant, and that the area was not well
illuminated.23 Having carefully reviewed the record, we
disagree with the defendant that the trial court’s find-
ings are unsupported by the evidence.
First, the court’s finding that Rivera had approxi-
mately ten minutes to observe the assailant was sup-
ported by Rivera’s testimony that the assailants had
been at the car ‘‘a little more than ten minutes.’’ More-
over, regardless of the configuration of the lights, the
trial court reasonably concluded that there was suffi-
cient light in the area such that Rivera had a good view
of the assailant for a considerable period of time. See
State v. Harris, supra, 330 Conn. 109. In addition to
Rivera’s testimony that there had been a porch light
and a streetlight, he testified at trial that the lighting
was such that he could see down the street and that
he did not have difficulty seeing the assailants’ faces.
Further, Officer King, who arrived at the scene shortly
after the incident, described the location as being ‘‘well
lit’’ and having ‘‘high visibility’’ due to the streetlights.
In addition, the trial court credited Rivera’s testimony
that the interior lights in the car illuminated the defen-
dant’s face as he was rummaging through the car.
The record also supports the trial court’s finding that
Rivera was attentive during the encounter. Rivera testi-
fied that he was not under the influence of drugs or
alcohol at the time of the robbery, and he further
explained that he consciously tried to record a memory
of the passenger side assailant so that he could later
retaliate against him for the robbery.24 ‘‘[A] finding of
reliability may be bolstered by the witness’ conscious
effort to focus on the face of his assailant.’’ State v.
Harris, supra, 330 Conn. 110. The trial court was there-
fore entitled to credit Rivera’s testimony in this regard.
With respect to the third Biggers factor, the accuracy
of the eyewitness’ description of the offender, the defen-
dant argues that Rivera’s description of the assailant
had been general, rather than specific, and that his
description of the assailant’s facial hair had not been
accurate. We disagree. Rivera’s description of the assail-
ant was both specific and accurate, and included the
individual’s race (African-American), gender (male),
approximate age (twenties), approximate body type
(medium build), approximate weight (160 pounds),
approximate height (five feet, five inches), facial hair
style (full beard), and clothing (white hat, black T-shirt).
This detailed description conforms with considerable
accuracy to the information in the record concerning
the defendant’s physical appearance.25
As we previously have noted, Rivera described the
assailant as having a full beard, which he referred to
as a ‘‘Rick Ross’’ type beard, which was neatly sculpted
and one to two inches off of the assailant’s face. Rivera
acknowledged that, at the time of the arraignment pro-
cedure, the defendant’s beard appeared ‘‘scruffy,’’ or
messy, and two to three inches long. On appeal, the
defendant argues that ‘‘[t]he beard . . . is problematic
because [the] defendant did not have anything resem-
bling a Rick Ross beard when Rivera identified him
not even two weeks after the shooting. While Rivera
claimed that it was [the] defendant’s beard that con-
nected him to the gunman, he admitted that [the] defen-
dant’s beard was messy, scraggly and had hair all stick-
ing out—a far cry from the sculpted, groomed Rick
Ross beard that was rounded under the chin and one
to two inches long.’’ We are not persuaded by the defen-
dant’s argument.
The defendant does not dispute that he has a full
beard, consistent with Rivera’s description of the assail-
ant. Moreover, Rivera’s description was based on how
the assailant appeared at the time of the incident, on
July 31, 2012. The arraignment procedure did not take
place until two weeks later, on August 13, 2012. Given
the passage of time, we cannot conclude that Rivera’s
description of the beard, as it appeared on July 31, 2012,
was inaccurate.26 Accordingly, we conclude that any
difference in appearance between Rivera’s description
of the assailant’s beard and the appearance of the defen-
dant’s beard, two weeks after the incident, does not
render Rivera’s identification of the defendant unre-
liable.27
The defendant also argues that the court’s finding
that Rivera was able to observe the assailant’s hairstyle,
skin tone, and clothing is clearly erroneous. We dis-
agree. Rivera told Officer King, the responding officer,
that the assailant was a black male who had been wear-
ing a white hat and black T-shirt. Moreover, although
Rivera could not see the assailant’s hair because it was
under his hat, he was able to observe the assailant’s
facial hair style, and told Detective Natale and Detective
Zaweski, whom he met with less than two hours after
the incident, that the assailant had a full, neatly groomed
‘‘Rick Ross’’ type beard. The court’s finding, therefore,
is supported by the evidence.
The fourth relevant consideration under Biggers, the
level of certainty that Rivera displayed with respect to
his identification of the defendant, also strongly favors
the state’s contention that Rivera’s identification was
reliable for purposes of the analysis required under the
federal constitution. Rivera demonstrated not just high
confidence in his identification, but ‘‘100 percent’’ cer-
tainty immediately after identifying the defendant.
With respect to the final Biggers factor, namely, the
length of time between the crime and the identification,
we find no merit to the defendant’s contention that the
two week period between the date of the crime and
Rivera’s identification of the defendant undermined the
reliability of that identification. See State v. Harris,
supra, 330 Conn. 112–13.28
The defendant argues that the trial court ‘‘failed to
take into account numerous factors that weakened the
identification.’’ First, the defendant argues that the iden-
tification was unreliable because Rivera failed to
choose his photograph in the August 8, 2012 photo-
graphic array procedure and that the trial court ‘‘ignored
this evidence.’’ In its memorandum of decision, how-
ever, the court acknowledged that the defendant’s pho-
tograph was included in the August 8, 2012 array and
that Rivera failed to make a positive identification dur-
ing the procedure. In doing so, the court found that the
photograph of the defendant that had been included in
the array was ‘‘outdated . . . .’’ This finding is sup-
ported by Detective Natale’s testimony that the photo-
graph of the defendant was not current and that it had
been taken in March, 2011, one and one-half years
earlier.
Moreover, Rivera testified that he is not the type of
person who can look at a photograph and make an
identification. He explained that ‘‘[with] pictures, you
really don’t see the whole body of the person. It just
shows you the face of them, so you really don’t know
if they’re really chubby, and you don’t know if they’re
tall . . . you don’t know anything about that.’’ Simi-
larly, Rivera testified that it had not just been the defen-
dant’s face that caused him to be 100 percent certain
in his identification—it was ‘‘his whole body structure,
like, his whole demeanor . . . like, the way he was
walking . . . .’’ Accordingly, Rivera’s failure to identify
the defendant in the photographic array procedure does
not lead us to conclude that his identification of the
defendant, at the subsequent arraignment procedure,
was unreliable.
The defendant also argues that the reliability of Rive-
ra’s identification of him was undermined by numerous
factors, including the ‘‘weapon focus’’ effect and the
effect of stress on Rivera’s ability to observe the assail-
ant, cross-race impairment, unconscious transference,
and the weak correlation between a witness’ confidence
in his or her identification and the identification’s accu-
racy. He argues the trial court failed to consider Dr.
Penrod’s testimony concerning these factors.29
First, in attempting to call into question the propriety
of the trial court’s finding regarding Rivera’s level of
attentiveness, the defendant relies on Dr. Penrod’s testi-
mony concerning the ‘‘weapon focus’’ effect and the
effect of stress on Rivera’s ability to observe the assail-
ant.30 The ‘‘weapon focus’’ effect is ‘‘a phenomenon
whereby the reliability of an identification can be dimin-
ished by a witness’ focus on a weapon . . . .’’ (Internal
quotation marks omitted.) State v. Harris, supra, 330
Conn. 110. At the suppression hearing, Dr. Penrod
explained that ‘‘the concern about the presence of a
weapon at the scene of a crime is that it could attract
people’s attention away from the face of the perpetrator
. . . .’’ With respect to the effect of stress, Dr. Penrod
testified that being exposed to some level of physical
violence, which includes being ‘‘pistol-whipped,’’ would
raise the stress level of an eyewitness, and that high
stress conditions reduce the accuracy of eyewitness
identifications.
The defendant also argues that cross-race impairment
and unconscious transference undermine the reliability
of Rivera’s identification of him, and that the court
should not have credited Rivera’s confidence in his
identification. With respect to ‘‘cross-race impairment,’’
Dr. Penrod testified that studies have found ‘‘impair-
ments [in identifications] whenever people were identi-
fying somebody of a different race,’’ and here, where
Rivera is Hispanic and the perpetrator is African-Ameri-
can, there is the potential for cross-race impairment. Dr.
Penrod also explained that unconscious transference,
which is a phenomenon where ‘‘people can lose track
of the context in which they had seen a face and mistak-
enly [identify] a face that they’d seen in one context
as a face they’ve seen in another context,’’ may have
affected Rivera’s identification in this case, where
Rivera viewed a photograph of the defendant in the
August 8, 2012 photographic array before identifying
him in the August 13, 2012 arraignment procedure. In
addition, the defendant argued that ‘‘although the court
credited Rivera’s claim [that] he was 100 percent certain
that [the] defendant was the [assailant] . . . [t]here is
at best a weak correlation between a witness’ confi-
dence in his or her identification and the identification’s
accuracy.’’ (Internal quotation marks omitted.)
First, we note that the court was not required to
credit Dr. Penrod’s testimony, nor was it required to
set forth specific findings related to these factors. More-
over, ‘‘even though the evidence may have supported
factors tending generally to undermine the reliability
of the eyewitness identifications, the trial court was
not required to afford more weight to those factors here
than to the factors upon which it relied.’’ State v. Day,
171 Conn. App. 784, 822, 158 A.3d 323 (2017), cert.
denied, 330 Conn. 924, 194 A.3d 776 (2018).31 Those
factors upon which the court relied—Rivera’s opportu-
nity to view the perpetrator, his degree of attention,
the time between the crime and the identification, and
his level of certainty—are supported by the record and
by law. See id., 823; see also Manson v. Brathwaite,
supra, 432 U.S. 114.
Moreover, even if the trial court fully credited Dr.
Penrod’s testimony concerning the weapon focus effect
and the effect of stress on Rivera’s ability to view the
assailant, the court reasonably could have concluded
that, under the circumstances, these factors did not
operate to appreciably impair Rivera’s ability to focus
his attention on the assailant. Although Rivera testified
that he had focused on the defendant’s gun and
acknowledged that he was ‘‘in panic mode’’ at the time
of the incident, he also testified, as we previously have
noted, that he focused on the assailant’s face. Moreover,
Rivera had the opportunity to observe the passenger
side assailant over the course of approximately ten
minutes, including while the assailant searched his
pockets and rummaged through the car, during which
time the gun was not pointed at him.
Similarly, even if the trial court fully credited Dr.
Penrod’s testimony concerning witness confidence, the
court reasonably could have concluded that, under the
circumstances of this case, there was a relationship
between Rivera’s confidence and the accuracy of his
identification of the defendant. Although the defendant
argues that there ‘‘is at best a weak correlation between
a witness’ confidence in his or her identification and
the identification’s accuracy’’; (internal quotation
marks omitted); Dr. Penrod acknowledged that there
is a relationship between eyewitness confidence and
the identification’s accuracy under certain circum-
stances. He testified that ‘‘[i]f [confidence is] measured
at the time your identification is made before there’s
any possibility of feedback to the witness . . . there
is a modest relationship between confidence and accu-
racy,’’ as is the case here.32
For these reasons, we will not disturb the trial court’s
conclusion that the identification was reliable, for pur-
poses of the federal constitution, under the totality of
the circumstances. Consequently, the defendant cannot
prevail on his federal due process claim that the trial
court improperly denied his motion to preclude testi-
mony concerning that identification. See State v. Har-
ris, supra, 330 Conn. 113.
In light of our conclusion that the trial court properly
found that Rivera’s pretrial identification of the defen-
dant was sufficiently reliable to pass muster under the
federal constitution, it follows that the trial court also
was correct in denying the defendant’s motion to sup-
press Rivera’s subsequent in-court identification.
‘‘[W]hen the defendant contends that an in-court identi-
fication followed an unduly suggestive pretrial identifi-
cation procedure that was conducted by a state actor
. . . both the initial identification and the in-court iden-
tification may be excluded if the improper procedure
created a substantial likelihood of misidentification.’’
State v. Dickson, 322 Conn. 410, 420, 141 A.3d 810
(2016), cert. denied, U.S. , 137 S. Ct. 2263, 198
L. Ed. 2d 713 (2017). In concluding that Rivera’s identifi-
cation of the defendant was reliable, however, we nec-
essarily have rejected the defendant’s contention that
the procedure that produced it created a substantial
likelihood of misidentification, such that it would be
fundamentally unfair for the state to use it against the
defendant. See State v. Harris, supra, 330 Conn. 91. It
follows, therefore, that, because Rivera’s out-of-court
identification of the defendant was reliable, and there-
fore admissible, that identification, even if the product
of an unnecessarily suggestive identification procedure,
cannot be deemed to have so tainted the reliability of
Rivera’s in-court identification as to preclude the state
from using it. See id.; see also State v. Dickson, supra,
430–31 (explaining that in-court identification of defen-
dant is admissible when prior out-of-court identification
of defendant also is admissible). For that reason, we
also reject the defendant’s challenge to the trial court’s
denial of his motion to suppress Rivera’s in-court identi-
fication of him.
B
We next address the defendant’s contention that he
was entitled to suppression of Rivera’s out-of-court and
in-court identifications under the due process provision
of article first, § 8, of the Connecticut constitution. In
State v. Harris, supra, 330 Conn. 91, our Supreme Court
held that this provision affords greater protection than
the federal due process clause with respect to the
admissibility of an eyewitness identification following
an unnecessarily suggestive identification procedure.33
It concluded that it was ‘‘appropriate to modify the
Biggers framework to conform to recent developments
in social science and the law.’’ Id., 115. Accordingly, it
endorsed the factors for determining the reliability of
an identification that it earlier identified as a matter of
state evidentiary law in State v. Guilbert, 306 Conn.
218, 253, 49 A.3d 705 (2012),34 and adopted the burden
shifting framework embraced by the New Jersey
Supreme Court in State v. Henderson, 208 N.J. 208,
288–89, 27 A.3d 872 (2011), for purposes of allocating
the burden of proof with respect to the admissibility
of an identification that was the product of an unneces-
sarily suggestive procedure.35 State v. Harris, supra,
131.
In Harris, the defendant claimed that if the trial court
had applied the proper standard, it would have been
precluded from considering Rivera’s level of confidence
and would have been compelled to consider the follow-
ing factors: the tendency of eyewitnesses to overesti-
mate the duration and quality of their opportunity to
view the perpetrator; Rivera’s lack of sleep and the poor
lighting at the scene of the crime; the tendency of fear
and stress to impair perception and recall; the two week
interval between the crime and the observation; Rive-
ra’s nonspecific description of the perpetrator’s facial
features; the effect of the presence of a weapon and high
levels of stress on the accuracy of the identification;
and the fact that Rivera and the defendant were of
different races. Id., 135. Our Supreme Court disagreed.
Id. The court concluded that, although these factors
were not expressly included in the Biggers framework,
‘‘the trial court’s application of the Biggers framework
instead of the reliability standard . . . adopted [in
Harris] was harmless because it is not reasonably pos-
sible that the court would have reached a different
conclusion as to the admissibility of Rivera’s identifica-
tion under [the] new framework.’’ Id., 137–38.
The defendant argues that ‘‘[t]he facts of this case
compel a different result’’ because in the present case,
unlike in Harris, there was a risk of unconscious trans-
ference.36 We are not persuaded.
Although the variable of unconscious transference is
not expressly included in the Biggers framework, as
analyzed in our case, neither were the factors at issue
in Harris. The court in Harris determined that
‘‘[a]lthough the specific factors that [the defendant’s
eyewitness identification expert] addressed are not
expressly included in the Biggers framework, that
framework does direct the court to consider the oppor-
tunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, and the
level of certainty demonstrated by the witness at the
confrontation . . . .’’ (Internal quotation marks omit-
ted.) State v. Harris, supra, 330 Conn. 136. The court
explained: ‘‘[The] general factors [set forth in Biggers]
encompass the more specific reliability factors that we
have identified in the present case’’ and ‘‘the factors
that we have adopted are generally comparable to the
Biggers factors and are merely intended to more pre-
cisely define the focus of the relevant inquiry.’’ (Internal
quotation marks omitted.) Id. Thus, the variable of
unconscious transference is not fatal to a finding that
the trial court’s application of the Biggers framework,
instead of the reliability standard that our Supreme
Court adopted in Harris, was harmless.
Moreover, Dr. Penrod, at the suppression hearing and
at trial, testified as to the possible effect of unconscious
transference. At the suppression hearing, after provid-
ing the court with a general explanation of unconscious
transference, Dr. Penrod testified that, with respect to
Rivera’s identification of the defendant, unconscious
transference ‘‘[a]bsolutely’’ may have come into play.
At the conclusion of the hearing, defense counsel
argued that unconscious transference affected the relia-
bility of Rivera’s identification of the defendant. As in
Harris, there is no indication in the record that the trial
court declined to consider any portion of Dr. Penrod’s
testimony because it believed that the evidence was
not relevant under Biggers. See State v. Harris, supra,
330 Conn. 137. Finally, the defendant has not identified
any evidence that he was prevented from presenting at
the suppression hearing or at trial on the ground that
it was not relevant under Biggers. See id.
Accordingly, we conclude that the trial court’s appli-
cation of the Biggers framework, instead of the reliabil-
ity standard that our Supreme Court adopted in Harris,
was harmless because it is not reasonably possible that
the court would have reached a different conclusion as
to the admissibility of Rivera’s identification under the
new framework.
II
The defendant next claims that there was insufficient
evidence to support his conviction of robbery as against
Gonzalez. Specifically, he argues that there was no evi-
dence that property had been taken from Gonzalez, and
even if there were such evidence, there is no evidence
that the defendant was the individual who took such
property. On the basis of our review of the record, we
conclude that there was sufficient evidence presented
at trial to support the defendant’s conviction of robbery
in the first degree as against Gonzalez.
The following additional facts and procedural history
are relevant to our resolution of this claim. During the
victims’ drive from Newington to New Haven, they
stopped at a gas station convenience store. Gonzalez
handed Rivera cash, which he kept in the car’s center
console, for Rivera to purchase items at the store.37
When the victims were at 49 Atwater Street, after the
defendant and Harris approached Gonzalez’ car, the
defendant asked the victims where the drugs and money
were. After Rivera exited the car, he watched the defen-
dant and Harris rummage through Gonzalez’ car, until
he heard one of them say, ‘‘bingo, I got it,’’ at which point
the defendant and Harris stopped searching and left.
After Officer King responded to the scene and accom-
panied Gonzalez to a hospital, Rivera remained at 49
Atwater Street to talk to detectives. As he waited for
the detectives to arrive, Rivera searched the car to see
what the defendant and Harris took from Gonzalez. He
discovered that the defendant and Harris had taken
Gonzalez’ cell phone and his cash.
We begin by setting forth the standard of review and
legal principles that guide our analysis of this claim.
‘‘In reviewing a sufficiency of the evidence claim, we
construe the evidence in the light most favorable to
sustaining the verdict, and then determine whether
from the facts so construed and the inferences reason-
ably drawn therefrom, the trier of fact reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt.
. . . Although the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense . . . each of the
basic and inferred facts underlying those conclusions
need not be [proven] beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical.’’ (Citation omitted; internal quotation
marks omitted.) State v. Bonilla, 317 Conn. 758, 765,
120 A.3d 481 (2015).
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 17, 115 A.3d 447 (2015).
Section 53a-134 (a), with which the defendant was
charged, provides in relevant part: ‘‘A person is guilty
of robbery in the first degree when, in the course of
the commission of the crime of robbery as defined in
section 53a-133 or of immediate flight therefrom, he or
another participant in the crime . . . (4) displays or
threatens the use of what he represents by his words
or conduct to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm . . . .’’ General Statutes
§ 53a-133 provides: ‘‘A person commits robbery when,
in the course of committing a larceny, he uses or threat-
ens the immediate use of physical force upon another
person for the purpose of: (1) Preventing or overcoming
resistance to the taking of the property or to the reten-
tion thereof immediately after the taking; or (2) compel-
ling the owner of such property or another person to
deliver up the property or to engage in other conduct
which aids in the commission of the larceny.’’ General
Statutes § 53a-119 defines larceny: ‘‘A person commits
larceny when, with intent to deprive another of property
or to appropriate the same to himself or a third person,
he wrongfully takes, obtains or withholds such property
from an owner.’’
The defendant raises two distinct arguments with
respect to the sufficiency of the evidence for his convic-
tion of robbery as against Gonzalez. Both arguments
are based on his claim that there was insufficient evi-
dence that he committed a larceny, a necessary element
of robbery. Specifically, he argues that (1) there was
no evidence that property had been taken from Gonza-
lez, and (2) even if there were sufficient evidence that
property had been taken, there was no evidence that
the defendant was the individual who took such prop-
erty. We address each argument in turn.
A
The defendant first argues that there was insufficient
evidence that he committed a larceny because there
was no evidence that property had been taken from
Gonzalez. Although the defendant acknowledges that
Rivera took an inventory of Gonzalez’ car and discov-
ered that Gonzalez’ money and cell phone were missing,
he argues that ‘‘Rivera had no actual knowledge [that]
there was money and a cell phone in the car prior to
the ‘robbery,’ and he never saw what, if anything, the
men took.’’ We are not persuaded.
Contrary to the defendant’s claim, the jurors did not
have to resort to ‘‘mere conjecture or speculation
alone.’’ Rather, the jury could have drawn a reasonable
inference that Rivera knew that Gonzalez had cash and
his cell phone in his car prior to the defendant’s and
Harris’ search of the vehicle, and that either the defen-
dant or Harris, or both, had taken the property, from
the following evidence: Rivera knew Gonzalez kept cash
in his center console;38 the defendant asked the victims
where the drugs and money were; the defendant and
Harris searched the car until one of them said, ‘‘bingo,
I got it,’’ at which point they exited the car and left;
Rivera checked Gonzalez’ car specifically to see if the
defendant and Harris had taken Gonzalez’ cash;39 and
Rivera concluded that Gonzalez’ cash and cell phone
were missing.
The defendant nevertheless argues that his case is
similar to State v. Adams, 164 Conn. App. 25, 141 A.3d
875 (2016). In Adams, the defendant had been convicted
of conspiracy to commit larceny in the sixth degree
based on the state’s theory that the defendant stole
Beats headphones from a Microsoft store located in the
Danbury Fair Mall. Id., 27–28. On appeal, this court
concluded that ‘‘the evidence was insufficient to prove
beyond a reasonable doubt that the defendant or his
alleged coconspirator committed a larceny’’; id., 34;
because ‘‘it was too great an inferential step for the
court to take on this evidence to conclude that the
defendant or his alleged coconspirator stole the missing
headphones from the store.’’ Id., 40.
This court explained: ‘‘[T]he fact finder would have
had to infer that the missing headphones actually had
been stolen by someone and removed from the store,
rather than lost or misplaced within the store or taken
into the possession of another customer who had not
yet presented them to a sales clerk to be purchased.
However, there was insufficient evidence to support
such an inference because [the store manager’s] own
testimony established that the opposite was true.
According to [the store manager], although she believed
that the headphones had been stolen, it was possible
that another customer was walking around with them
at the time their absence from the accessory area was
first noticed by another store employee.’’ (Emphasis
added.) Id., 38. Moreover, this court emphasized that
the defendant in Adams had been engaged in ‘‘innocent,
ordinary conduct’’ when he was in the public area of
a retail establishment where goods were displayed for
sale. Id.
The facts of the present case are wholly distinguish-
able from those presented in Adams. The defendant
had not been engaged in ‘‘innocent, ordinary conduct.’’
To the contrary, he approached Gonzalez’ car shortly
after 3:30 a.m., with a gun, asked where the drugs and
money were, struck Rivera on the head with his gun,
and then searched Gonzalez’ car. Moreover, unlike in
Adams, where the store manager had testified that it
was possible that another customer was walking around
with the headphones at the time they were missing,
there had been no testimony in the present case regard-
ing other possible explanations for the missing money
and cell phone. Thus, it was not ‘‘too great an inferential
step’’ for the jury to conclude that Gonzalez’ money
and cell phone had been taken.
B
The defendant next argues that, even if there were
sufficient evidence that property had been taken, there
was no evidence that the defendant was the individual
who took such property. Specifically, the defendant
argues that the state was limited to proving his criminal
liability under § 53a-134 (a) solely as a principal and
that it failed to do so. We are not persuaded.
As we determined in part II A of this opinion, there
was sufficient evidence presented for the jury to con-
clude that either the defendant or Harris, or both, had
taken Gonzalez’ money and cell phone. There was,
undisputedly, no evidence presented at trial as to who,
precisely, the defendant or Harris, if not both, had taken
these items.
The defendant is correct that, in the present case, he
could not have been convicted on the basis of accesso-
rial liability because the jury was not instructed on
accessorial liability. The state does not argue otherwise.
Rather, the state argues that ‘‘[t]he evidence showed
that the defendant and Harris acted in concert as princi-
pals in the robbery [and] . . . [that] they were working
together as a team of equals.’’ We agree with the state.
The record does not support the defendant’s asser-
tion that he could only have been convicted as an acces-
sory. An accessory is ‘‘[a] person, acting with the mental
state required for commission of an offense, who solic-
its, requests, commands, importunes or intentionally
aids another person to engage in conduct which consti-
tutes an offense . . . .’’ General Statutes § 53a-8 (a).
In the present case, the evidence showed that the defen-
dant and Harris, together, as principals, committed the
robbery as against Gonzalez. Both approached Gonza-
lez’ car at the same time, and both had guns. The defen-
dant had been the person to ask the victims where the
drugs and the money were, and the defendant had been
the person to strike Rivera on the head with his gun,
forcing the victims to exit the car. Both the defendant
and Harris searched the interior of Gonzalez’ car, and
once the property was found and taken—either by the
defendant or Harris, or both—both men exited the car
and left.40 Thus, the evidence was sufficient to prove
that the defendant acted as a principal. See State v.
Latorre, 51 Conn. App. 541, 552, 723 A.2d 1166 (1999)
(evidence sufficient to prove that defendant acted as
principal where he and second individual, who had
taken items from the victim, ‘‘were acting in concert
to commit the crime’’); see also State v. Kalil, 136 Conn.
App. 454, 480, 46 A.3d 272 (2012) (‘‘burglary and larceny
are not crimes that only can be committed by one per-
son at a time, rather they are crimes which can be
committed simultaneously by more than one individ-
ual’’), aff’d, 314 Conn. 529, 107 A.3d 343 (2014). Accord-
ingly, we conclude that there was sufficient evidence
to support the jury’s finding that the defendant commit-
ted the crime of robbery against Gonzalez.
III
The defendant lastly claims that the court, Clifford,
J., abused its discretion by denying the defendant’s
motion to disqualify Judge Fischer. Specifically, the
defendant argues that ‘‘any reasonable person would
question the judge’s impartiality and whether he was
predisposed to believing Rivera’s testimony’’ at the sup-
pression hearing because Judge Fischer presided over
Harris’ trial, ruled on Harris’ motion to suppress involv-
ing the same identification procedure, and ‘‘indicated
his admiration for [Rivera]’’ at Harris’ sentencing. We
disagree.
The following additional procedural history is rele-
vant to our resolution of this claim. At Harris’ sentenc-
ing, Judge Fischer made the following statements: ‘‘The
surviving victim, Jose Rivera, cooperated with law
enforcement officials, and he courageously entered into
this courtroom and testified to his observations of the
robbery and shooting,’’ and, ‘‘I give Jose Rivera so much
credit for cooperating with law enforcement and for
having the fortitude and courage to come into this court
and confront one of the men who committed this vio-
lent, senseless act.’’
On December 17, 2014, the defendant filed a motion
to disqualify the court, B. Fischer, J., from presiding
over his case on the ground that Judge Fischer had
presided over Harris’ case. The defendant argued that
because he would be making arguments similar to those
of Harris in his motion to suppress, ‘‘a reasonable per-
son would question Judge Fischer’s impartiality in the
instant matter on the basis of all the circumstances.’’
The defendant submitted a memorandum of law in sup-
port of his motion, in which he argued that ‘‘Judge
Fischer, in deciding [Harris’] motion to suppress the
eyewitness identification, was the fact finder and made
numerous findings that will be squarely at issue in the
defendant’s case. It is unrealistic to expect Judge
Fischer, or any judge, to stray from factual findings
made in a prior case, in a subsequent case where the
circumstances are substantially similar.’’ On January 5,
2015, the court, Clifford, J., held a hearing on the motion
to disqualify Judge Fischer, at the conclusion of which
it denied the motion.
We begin by setting forth the standard of review and
legal principles that guide our analysis of this claim.
Rule 2.11 (a) of the Code of Judicial Conduct provides
in relevant part that ‘‘[a] judge shall disqualify himself
. . . in any proceeding in which the judge’s impartiality
might reasonably be questioned including, but not lim-
ited to, the following circumstances . . . (1) [t]he
judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of
facts that are in dispute in the proceeding. . . .’’ ‘‘In
applying this rule, [t]he reasonableness standard is an
objective one. Thus, the question is not only whether
the particular judge is, in fact, impartial but whether a
reasonable person would question the judge’s impartial-
ity on the basis of all the circumstances. . . . More-
over, it is well established that [e]ven in the absence
of actual bias, a judge must disqualify himself in any
proceeding in which his impartiality might reasonably
be questioned, because the appearance and the exis-
tence of impartiality are both essential elements of a
fair exercise of judicial authority. . . . Nevertheless,
because the law presumes that duly elected or
appointed judges, consistent with their oaths of office,
will perform their duties impartially . . . the burden
rests with the party urging disqualification to show that
it is warranted. . . . Our review of the trial court’s
denial of a motion for disqualification is governed by
an abuse of discretion standard.’’ (Citation omitted;
internal quotation marks omitted.) State v. Milner, 325
Conn. 1, 12, 155 A.3d 730 (2017).
‘‘[O]pinions that judges may form as a result of what
they learn in earlier proceedings in the same case rarely
constitute the type of bias, or appearance of bias, that
requires recusal. . . . To do so, an opinion must be
so extreme as to display clear inability to render fair
judgment. . . . In the absence of unusual circum-
stances, therefore, equating knowledge or opinions
acquired during the course of an adjudication with an
appearance of impropriety or bias requiring recusal
finds no support in law, ethics or sound policy.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) State v. Rizzo, 303 Conn. 71, 121, 31
A.3d 1094 (2011), cert. denied, 568 U.S. 836, 133 S. Ct.
133, 184 L. Ed. 2d 64 (2012). ‘‘[C]ourts routinely hold
that a judge’s familiarity with a criminal defendant and
his or her prior offenses through participation in a sepa-
rate, earlier trial of the defendant . . . or with his or
her current offenses through participation in the trial
of a codefendant . . . does not create grounds for dis-
qualification.’’41 (Citations omitted; emphasis added.)
Id., 120 n.39.
To support his argument, the defendant points to a
variety of other cases, statutes, and rules of practice
indicating that, when certain previously decided issues
arise for a second time in criminal proceedings, a differ-
ent judge generally should preside. See, e.g., State v.
Canales, 281 Conn. 572, 599, 916 A.2d 767 (2007) (‘‘the
determination of probable cause required for issuing
warrants, although not identical, is sufficiently similar
to the determination required for the constitutional
probable cause hearing to justify the extension, by
implication, of the preference that a different judge
preside over the probable cause proceedings’’); General
Statutes § 54-33f (a) (judge issuing search warrant may
not hear motion to suppress evidence obtained as a
result of that warrant); Practice Book § 41-17 (same);
General Statutes § 51-183h (judge issuing arrest warrant
cannot preside over hearing attacking validity or suffi-
ciency of that warrant); General Statutes § 51-183c
(judge cannot preside at a retrial if the case has been
reversed on appeal and a new trial has been granted);
Practice Book § 1-22 (a) (same). The defendant points
out the concern present in these situations: ‘‘Some may
argue that a judge will feel the motivation to vindicate
a prior conclusion when confronted with a question for
the second or third time . . . .’’ (Internal quotation
marks omitted.) Liteky v. United States, 510 U.S. 540,
562, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994) (Kennedy,
J., concurring in the judgment).
The defendant argues that ‘‘[d]isqualification here is
in accord with the policy behind these statutes and
rules. There is no practical difference between pre-
venting a judge who issued an arrest warrant from pre-
siding over a probable cause hearing and preventing a
judge who ruled on a motion to suppress in another
case from ruling on a motion to suppress in a codefen-
dant’s case when the identification occurred at the same
time in both cases and the judge has praised the courage
of that eyewitness for coming forward.’’ (Emphasis
omitted.) We disagree.
In considering the defendant’s motion to suppress
Rivera’s identification of him, Judge Fischer was not
confronted with the same question that he considered
in Harris’ motion to suppress. Although the motions to
suppress in both cases involved the same identification
procedure, Judge Fischer’s ruling on the motion in the
present case specifically addressed Rivera’s identifica-
tion of the defendant. Thus, in considering the defen-
dant’s motion to suppress, Judge Fischer heard differ-
ent testimony and considered different evidence. For
example, in the present case, Judge Fischer heard testi-
mony from a different expert witness, who testified
as to reliability factors unique to this case, such as
unconscious transference. See part I of this opinion.
Moreover, in his analysis of whether the identification
procedure was unnecessarily suggestive, Judge Fischer
considered whether the other arraignees present during
the arraignment procedure were similar in appearance
to the defendant, looking particularly at the defendant’s
height, weight, and age. Similarly, in considering
whether Rivera’s identification was reliable, Judge
Fischer considered whether Rivera’s description of the
passenger side assailant was accurate by comparing
Rivera’s description to the defendant’s unique charac-
teristics. Accordingly, unlike the situations cited by the
defendant, there is no concern that Judge Fischer would
have felt motivated, in ruling on the defendant’s motion
to suppress, to vindicate his conclusion reached with
respect to the identification of Harris.
The defendant also argues that his claim ‘‘is not that
Judge Fischer should have been disqualified solely
because he had previously presided over Harris’ case
. . . . Rather, it was the fact that Judge Fischer made
remarks praising the courage of Jose Rivera, the state’s
key witness, which gave an appearance of partiality
because it demonstrated he was predisposed to believe
Rivera’s testimony at [the] defendant’s suppression
hearing.’’ (Citation omitted.) We are not persuaded.
In support of his argument, the defendant cites to
several out-of-state cases, including In re George G., 64
Md. App. 70, 494 A.2d 247 (1985), superseded by statute
in part as stated in In re Demetrius J., 321 Md. 468,
476, 583 A.2d 258 (1991), People v. Gibson, 90 Mich.
App. 792, 282 N.W.2d 483 (1979), leave to appeal denied,
408 Mich. 868 (1980), and People v. Robinson, 18 Ill.
App. 3d 804, 310 N.E.2d 652 (1974).42 In each of those
cases, the trial judges presided over the defendants’
respective bench trials and, accordingly, acted as the
triers of fact with respect to the determination of the
defendants’ guilt or innocence. Before each trial, how-
ever, the judges in these cases made statements that
indicated they had prejudged the defendant’s guilt. See
People v. Gibson, supra, 797 (trial judge commenting on
the defendant’s guilt at conclusion of his codefendant’s
trial); see also In re George G., supra, 77, 79 (trial judge
telling defense counsel ‘‘[y]ou might be able to prove
that [the defendant] is innocent,’’ even though ‘‘[i]t is
elementary that in a criminal case the state has the
burden of proving, beyond a reasonable doubt, the guilt
of the accused and that the accused need not prove
his innocence’’ [emphasis omitted; internal quotation
marks omitted]); People v. Robinson, supra, 808 (The
trial judge concluded that the defendant was guilty at
the conclusion of his codefendant’s trial and stated,
before the defendant’s trial, ‘‘I heard the testimony. I
came to that conclusion and my statement was correct.’’
[Internal quotation marks omitted.]).
In the present case, unlike in In re George G., Gibson,
and Robinson, Judge Fischer did not make any state-
ment to indicate that he prejudged the ultimate issues
on which he was to rule with respect to the defendant’s
motion to suppress, namely, whether the identification
procedure was unnecessarily suggestive and, if so,
whether the identification was nevertheless sufficiently
reliable. Even though the defendant claims that ‘‘Judge
Fischer made remarks praising the courage of Jose
Rivera,’’ which the defendant characterizes as state-
ments regarding Rivera’s credibility,43 these remarks do
not indicate that Judge Fischer prejudged the issues
raised in the defendant’s motion. As we previously have
noted, Judge Fischer’s ruling on the defendant’s motion
to suppress involved considerations independent of
Rivera’s credibility, such as factors affecting the reliabil-
ity of the identification, and whether the composition
of the procedure included individuals sufficiently simi-
lar in appearance to the defendant.
Contrary to the defendant’s arguments, Judge
Fischer’s statements do not reflect ‘‘an opinion . . .
so extreme as to display clear inability to render fair
judgment.’’ (Internal quotation marks omitted.) State v.
Rizzo, supra, 303 Conn. 121. Accordingly, we cannot
conclude that the court abused its discretion in denying
the defendant’s motion to disqualify Judge Fischer.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was acquitted of one count of murder and one count of
felony murder.
2
At trial, Rivera explained that the third individual remained on his bicycle,
riding back and forth in the middle of the street, while telling the defendant
and Harris to ‘‘hurry it up.’’
3
At this time, Rivera did not see what was taken or who, as between the
defendant and Harris, if not both, took it. On the basis of the evidence
presented at trial, however, the jury reasonably could have found that either
the defendant or Harris, or both, took Gonzalez’ cash and cell phone. See
part II of this opinion.
4
At trial, Rivera testified that the defendant was the individual who shot
Gonzalez. Specifically, he testified that as the defendant and Harris began
to leave, Gonzalez yelled to the defendant, ‘‘I’ll remember your face,’’ where-
upon the defendant turned and shot Gonzalez twice. The jury, however,
found the defendant not guilty of murder and felony murder.
On appeal, in arguing that the trial court’s admission of the identification
evidence amounts to harmful error, the defendant mentions that ‘‘the jurors
returned a mixed verdict [that] was most likely the result of compromise
. . . .’’ Because we conclude that the trial court’s admission of the identifica-
tion evidence was not improper; see part I of this opinion; we need not
address the defendant’s argument that the admission of such evidence
amounts to harmful error.
5
Despite the early morning hour, Officer King noted that the scene was
well lit due to the streetlights.
6
Although Rivera had been providing a description of ‘‘the shooter,’’ Rivera
interchangeably referred to this single individual as the individual who had
been on the passenger side of the car, as well as the individual who shot
Gonzalez. Because the jury found the defendant not guilty of murder and
felony murder, we refer to this individual as the passenger side assailant.
7
The powder like substance was not tested.
8
Rivera testified that Rick Ross is a rapper who has a distinctive beard.
The state introduced a photograph of Rick Ross into evidence.
9
Unlike the first two photographic arrays, which the police referred to
as ‘‘photo boards’’ and included the presentation of eight photographs on
a single page, this third photographic array consisted of eight separate
photographs. Rivera looked at these photographs for approximately four to
five minutes.
10
Although Rivera initially commented on one of the individuals having
a nose and eyes similar to those of one of the assailants, he did not ultimately
identify anyone during this procedure.
11
On August 10, 2012, the police also interviewed Harris, but Harris did
not provide the police with any information.
12
During the course of her investigation, Detective Natale learned that a
man named Dana Pettaway went by the nickname of Do. Although Detective
Natale attempted to speak to Pettaway, he was not cooperative. Pettaway
was not arrested in connection with this incident.
At trial, the state entered into evidence a photograph of Pettaway that
had been obtained by Detective Zaweski. This photograph, however, was
not presented to the defendant and, therefore, the defendant did not identify
Dana Pettaway as the third individual who had been present at 49 Atwater
Street at the time of the shooting. On the basis of this evidence, and upon the
defendant’s request, the court instructed the jury as to third-party culpability.
13
At trial, Detective Natale testified that she obtained video surveillance
footage from a nearby nursing home facility located on Pine Street. This
video footage appeared to show three individuals riding back and forth on
Pine Street on bicycles. At approximately 3:27 a.m., the video shows a single
individual on a bicycle ride west on Pine Street, toward Atwater Street, then
two minutes later, travel east on Pine Street, away from Atwater Street.
Seconds later, two additional individuals travel in the same direction, away
from Atwater Street. The individuals in the footage could not be identified.
14
In addition, a fingerprint found on the driver’s side door of Gonzalez’
car was identified as belonging to Harris.
15
As our Supreme Court noted in State v. Harris, 330 Conn. 91, 98 n.6,
191 A.3d 119 (2018), ‘‘[t]he trial court’s . . . supplemental memorandum of
decision, and testimony by Lawlor and Rivera differ on several details with
respect to the arraignment process, for example, the order in which custodial
arraignees entered, the number of arraignments observed, and the demo-
graphics of the arraignees. By all accounts, however, Rivera immediately
identified [Harris] as he entered the courtroom, before he was actually
arraigned.’’
16
Rivera testified on cross-examination that Lawlor had responded that
they may be the suspects, at which point the two men left the courthouse.
Lawlor denied making that statement.
17
The identification procedure at issue in the present case is the same
identification procedure that our Supreme Court considered in State v.
Harris, supra, 330 Conn. 91. The state argues that, although the court
in Harris concluded that this identification procedure was unnecessarily
suggestive, the identification procedure in the present case was not unneces-
sarily suggestive because ‘‘[t]he evidence in this case differs from the evi-
dence relied on in Harris in respects that support the trial court’s finding
that the procedure was not unnecessarily suggestive. The evidence here
showed that the police did not focus Rivera’s attention specially or exclu-
sively on the custodial arraignees. Rather, they told him to, and he did, look
at everyone he saw in the courthouse, including up to fifty people in the
main hallway, twenty-five people in the public section of the courtroom,
and forty or so custodial and noncustodial arraignees.’’
It is true that, at the suppression hearing in the present case, Inspector
Lawlor testified that he told Rivera to look at people throughout the court-
house, including the main hallway and in the courtroom. In addition, Rivera
testified that he did, in fact, look at people in the main hallway to see if he
recognized anyone. Rivera, however, also acknowledged that he knew he
was not there to see if anyone in the main hallway looked familiar and that
Inspector Lawlor told him to look at the arraignees that would be brought
through a door into the courtroom. Moreover, in Harris, the trial court
similarly heard testimony that Inspector Lawlor told Rivera to look at the
general population in the courthouse to see if anyone looked familiar. Our
Supreme Court nonetheless held that the actual, operative array from which
Rivera identified the defendants consisted solely of the fourteen custodial
arraignees. State v. Harris, supra, 330 Conn. 104–105.
Because we conclude that Rivera’s identification of the defendant was
sufficiently reliable even if the identification process was unnecessarily
suggestive, we need not address whether any differences in the evidence
presented at the defendant’s suppression hearing, as compared to Harris’
suppression hearing, warrant a different conclusion as to the suggestiveness
of the identification procedure.
18
The trial court, in its supplemental memorandum of decision, first found
that fifteen African-American males had been arraigned that day, but subse-
quently found that twenty African-American males had been arraigned that
day. The parties do not raise any claim with respect to that numerical dis-
crepancy.
19
With respect to the first prong of the test, the court in Harris concluded:
‘‘[W]e disagree with the trial court’s conclusion that the arraignment proce-
dure was not unnecessarily suggestive because that conclusion was based
on a clearly erroneous factual finding. Specifically, the trial court found that
the composition of the corporeal array was not unnecessarily suggestive
because, of thirty-four total arraignees, fifteen of them matched Rivera’s
description of the driver’s side assailant with respect to race (African-Ameri-
can) and gender (male). The court’s conception of the array as consisting
of the thirty-four arraignees, however, was significantly broader than the
actual, operative array from which Rivera identified the defendant.’’ (Foot-
note omitted.) State v. Harris, supra, 330 Conn. 104.
The court stated that ‘‘[t]he proper starting point for the trial court’s
analysis of the composition of the array . . . should have been the fourteen
custodial arraignees, only nine of whom were African-American males.’’ Id.,
105. The court concluded that the procedure was unnecessarily suggestive
‘‘[b]ecause none of [the] custodial arraignees was sufficiently similar to the
defendant in height, weight and age’’; id., 108; and, therefore, ‘‘the physical
differences between the suspect and the custodial arraignees in the present
case were clearly significant enough to emphasize or highlight the individual
whom the police believe[d] was the suspect.’’ (Internal quotation marks
omitted.) Id., 107. To the extent that the testimony on this issue before the
trial court in the present case differed from that in Harris, see footnote 18
of this opinion.
20
Because this case involves the same incident and the same witness, our
analysis is similar to that of our Supreme Court in State v. Harris, supra,
330 Conn. 91. In Harris, the court concluded that the identification of the
defendant was sufficiently reliable for purposes of the federal constitution.
Id., 113. Despite the court’s holding in Harris, the defendant maintains that
the identification was not reliable for purposes of the federal constitution.
He argues that, ‘‘[u]nlike in Harris, Rivera’s description of the suspect did
not match that of [the] defendant in regards to the distinctive beard the
suspect had. Moreover, Rivera had already seen a photograph of the defen-
dant prior to the arraignment and failed to pick it out, a factor not present
in Harris and which the trial court did not consider. Thus, the holding in
Harris that the identification was reliable under the federal constitution is
not applicable here.’’ For the reasons set forth in this opinion, we are
not persuaded.
21
The trial court found that Rivera’s attention was not impaired by alcohol
or drugs, that being struck in the head by the assailant’s gun did not affect
Rivera’s ability to observe the events that evening, and it credited Rivera’s
testimony that he focused on the assailant’s face.
22
The court found that, although the assailant had been wearing a hat, it
was worn backwards and, therefore, his entire face was exposed.
23
The defendant argues that, although the court found that the area was
well illuminated by a streetlight and a light from 49 Atwater Street, ‘‘neither
of these lit up the area’’ because ‘‘[t]he light on the porch was over the front
door, there was a roof on the porch, and one had to walk up three steps
onto the porch in order to see the light,’’ and, although Rivera testified that
there had been streetlights, he also acknowledged that there had not been
one directly across the street from his house.
24
Rivera testified that he focused on the assailant’s face ‘‘[j]ust to make
sure that if [he were] to retaliate [he] would make sure [he] would grab the
right person and not the wrong one.’’
25
During her investigation, Detective Natale found that ‘‘[the defendant]
matched the description of the person who had Mr. Rivera out of the car
at gunpoint.’’
26
In addition to natural hair growth, the beard could have appeared differ-
ent on the basis of grooming, or lack thereof, during that intervening two
week time period.
27
Regardless of any differences between Rivera’s description of the beard
and the appearance of the defendant’s beard two weeks later, Rivera told
Inspector Lawlor that it was the same beard. Moreover, Rivera did not
identify the defendant based solely on the appearance of his beard. Rivera
testified that, in addition to the defendant’s beard, ‘‘[i]t was the eyes . . .
the cheekbones, the nose . . . you can’t forget a person’s eyes. You can’t
forget it. That’s stuck in your head.’’ He stated: ‘‘You can’t forget a face like
that.’’ In addition, Rivera testified that it had not just been the defendant’s
face that caused him to be 100 percent certain in his identification—it was
‘‘his whole body structure, like, his whole demeanor . . . like, the way he
was walking . . . .’’
28
In reaching this same conclusion, our Supreme Court noted: ‘‘In a previ-
ous case, we held that the reliability of an identification was not compro-
mised when made in connection with an unduly suggestive arraignment
procedure conducted less than one month after the crime . . . and we have
reached the same conclusion despite a delay of two and one-half months
between the crime and an identification following the eyewitness’ viewing
of an unnecessarily suggestive photographic array.’’ (Citation omitted.) State
v. Harris, supra, 330 Conn. 112.
29
Many of these factors had been recognized by our Supreme Court in
State v. Guilbert, 306 Conn. 218, 49 A.3d 705 (2012), as affecting the reliability
of eyewitness identifications. Although Guilbert concerned the admissibility
of expert testimony as to those certain factors affecting the reliability of
eyewitness identifications, our Supreme Court, in State v. Harris, supra,
330 Conn. 91, endorsed those factors for determining the reliability of an
identification under the due process provision of our state constitution. See
part I B of this opinion. Our analysis under the federal constitution, however,
continues to be governed by the Biggers framework. See State v. Harris,
supra, 108.
30
Specifically, the defendant argues that ‘‘Rivera’s attention was impaired
by the stress of the situation, the fact that he had been pistol-whipped, there
was a gun in his face, and he was so angry that he couldn’t focus on what
was happening.’’ Moreover, he argues that ‘‘Rivera testified [that] he was
scared, upset and feared for his life, and that he told the police [that] he
was rattled, yet the trial court never once mentioned those facts.’’ (Internal
quotation marks omitted.)
31
In State v. Day, supra, 171 Conn. App. 820, the defendant argued, inter
alia, that ‘‘[t]he presence of a gun . . . the effects of stress . . . [and]
the effects of cross-racial identification’’ undermined the reliability of the
witnesses’ identifications of him. (Internal quotation marks omitted.) This
court determined that ‘‘[a]lthough many of the defendant’s arguments have
merit, the factors he relies upon do not necessarily outweigh the factors
underlying the trial court’s conclusion.’’ Id., 822. This court concluded, there-
fore, that the identifications of the defendant were not so unreliable as to
require their suppression as evidence at the defendant’s trial. Id., 823.
32
Rivera expressed ‘‘100 percent’’ certainty immediately after identifying
the defendant and before receiving any feedback from Inspector Lawlor.
At the suppression hearing, defense counsel argued that Inspector Lawlor’s
statement to Rivera, after his identification of the defendant and Harris,
that they may be the suspects; see footnote 16 of this opinion; could poten-
tially have boosted Rivera’s confidence, affecting the reliability of his identifi-
cation. This argument was in line with Dr. Penrod’s testimony that a state-
ment such as Inspector Lawlor’s was ‘‘a weak confirmation that the witness
has made a correct identification,’’ and that ‘‘if you give people some indica-
tion that they have made a correct identification it inflates their confidence,
so if you then ask them how confident are you about your identification,
you see that they can be much more confident about the identification than
would be the case if you asked them before they got any feedback.’’ Rivera,
however, told Inspector Lawlor that he was 100 percent certain in his identifi-
cation before Inspector Lawlor allegedly told him that the defendant and
Harris may be the suspects, and Lawlor denied having made that statement
to Rivera.
33
In doing so, our Supreme Court overruled its conclusion to the contrary
in State v. Ledbetter, 275 Conn. 534, 569, 881 A.2d 290 (2005) (overruled in
part by State v. Harris, 330 Conn. 91, 131, 191 A.3d 119 [2018]), cert. denied,
547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
34
The Guilbert factors are: ‘‘(1) there is at best a weak correlation between
a witness’ confidence in his or her identification and the identification’s
accuracy; (2) the reliability of an identification can be diminished by a
witness’ focus on a weapon; (3) high stress at the time of observation may
render a witness less able to retain an accurate perception and memory of
the observed events; (4) cross-racial identifications are considerably less
accurate than identifications involving the same race; (5) memory diminishes
most rapidly in the hours immediately following an event and less dramati-
cally in the days and weeks thereafter; (6) an identification may be less
reliable in the absence of a double-blind, sequential identification procedure;
(7) witnesses may develop unwarranted confidence in their identifications
if they are privy to postevent or postidentification information about the
event or the identification; and (8) the accuracy of an eyewitness identifica-
tion may be undermined by unconscious transference, which occurs when
a person seen in one context is confused with a person seen in another.’’
State v. Guilbert, supra, 306 Conn. 253–54.
35
‘‘Pursuant to that framework, to obtain a pretrial hearing, the defendant
has the initial burden of offering some evidence that a system variable
undermined the reliability of the eyewitness identification. . . . If the defen-
dant meets this burden, the state must then offer evidence demonstrating that
the identification was reliable in light of all relevant system and estimator
variables. . . . If the state adduces such evidence, the defendant must then
prove a very substantial likelihood of misidentification. . . . If the defen-
dant meets that burden of proof, the identification must be suppressed.’’
(Citations omitted.) State v. Harris, supra, 330 Conn. 131.
36
The defendant also argues that, unlike in Harris, Rivera’s description
of the defendant was not accurate due to his description of the assailant’s
beard. The accuracy of Rivera’s prior description of the assailant, however,
is expressly included in the Biggers framework. Thus, for the reasons set
forth in part I A of this opinion, we are not persuaded.
37
At trial, the following exchange occurred between the state and Rivera:
‘‘Q. . . . [W]here did you get the money to pay for the stuff?
‘‘A. I grabbed it from [Gonzalez].
‘‘Q. What do you mean you grabbed it from [Gonzalez]?
‘‘A. He handed me some cash and he said, go in the store for me, and I
went in the store and grabbed him something.
‘‘Q. Okay. Where did he get the money from?
‘‘A. Work.
‘‘Q. All right. Did he keep it in any place specific in his car? . . .
‘‘A. In his center console, I mean, like the arm . . . the armrest where
he normally put stuff in.’’
38
The defendant argues that ‘‘[t]here is a difference between Gonzalez
‘normally’ putting money in the center console and Rivera knowing for a
fact there was money in the console that night.’’ Rivera, however, had not
testified that Gonzalez ‘‘normally’’ put money in the center console. Rather,
he testified that Gonzalez gave him money to spend at the gas station
convenience store and that Gonzalez kept his money in the center console,
and when describing the center console, stated that it was where he ‘‘nor-
mally put stuff . . . .’’ See footnote 37 of this opinion.
39
At trial, Rivera explained: ‘‘I had basically checked in the car to make
sure what exactly did they take and, yes, that the main priority to see if
they did take his cash, and that’s exactly what happened. And they took
his cell phone, my cell phone . . . and my cash and his cash.’’ (Empha-
sis added.)
40
The defendant argues that ‘‘he cannot be convicted for the acts of
Harris,’’ and ‘‘because the jurors were never told they could consider the
acts of Harris as a basis for finding [the] defendant guilty of robbery, they
could not have properly [found] him [guilty] on that basis.’’ The defendant,
however, was not convicted for the acts of Harris. There was no evidence
presented at trial that Harris, rather than the defendant, had taken Gonzalez’
cash and cell phone.
The defendant also argues that ‘‘if the state’s theory at trial was that
[the] defendant was guilty by acting in concert with Harris, it should have
requested the court to include the ‘or another participant’ language from
the robbery statute in its instructions.’’ We disagree.
As previously stated, § 53a-134 (a), with which the defendant was charged,
provides in relevant part: ‘‘A person is guilty of robbery in the first degree
when, in the course of the commission of the crime of robbery as defined
in section 53a-133 or of immediate flight therefrom, he or another participant
in the crime . . . (4) displays or threatens the use of what he represents
by his words or conduct to be a pistol, revolver, rifle, shotgun, machine
gun or other firearm . . . .’’ (Emphasis added.)
In the present case, with respect to the robbery charge as against Gonzalez,
the court omitted the language ‘‘or another participant’’ in its instruction to
the jury. The ‘‘or another participant’’ language, however, does not relate to
the commission of the larceny or robbery. Rather, it relates to the individual
displaying or threatening the use of what he represents by his words or
conduct to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm,
which is not at issue on appeal.
41
Although the defendant recognizes that a judge is not ordinarily disquali-
fied from sitting on a case because he gained knowledge about the case or
the defendant from his participation in a previous proceeding, he argues
that ‘‘there is a recognized distinction between a judge who presides over
a jury trial and a judge who must act as the fact finder in a proceeding.’’
In Rizzo, however, our Supreme Court found persuasive Boyd v. State, 321
Md. 69, 581 A.2d 1 (1990), a case that involved successive court trials of
codefendants by the same judge. In Boyd, the court ruled that there was
no error in the denial of a motion for recusal, even though the judge acted
as the fact finder in the defendant’s trial and had previously acted as the
fact finder in a codefendant’s trial.
42
The defendant also cites to State v. Smith, 200 Conn. 544, 512 A.2d 884
(1986), People v. Silverman, 252 A.D. 149, 297 N.Y.S. 449 (1937), Brent
v. State, 63 Md. App. 197, 492 A.2d 637 (1985), and People v. Zappacosta,
77 A.D. 2d 928, 431 N.Y.S.2d 96, leave to appeal denied, 52 N.Y.2d 839
(1980). The present case, however, is readily distinguishable from each of
those cases.
First, the courts in Smith and Silverman considered comments that a
trial judge made in front of a jury regarding the credibility of witnesses.
See State v. Smith, supra, 200 Conn. 551 (‘‘the trial court questioned the
state’s principal witness in a manner that tended to enhance the witness’
credibility in the jury’s eyes’’); see also People v. Silverman, supra, 252 Ohio App.
Div. 174 (‘‘defendants were prejudiced by the court’s commendation of the
witness . . . in effect admonishing the jury thereby that he was a reliable
witness’’). The comments were improper in those contexts because, in a
jury trial, ‘‘[d]eterminations of credibility are solely the function of the jury.’’
State v. Smith, supra, 550. In the present case, the defendant does not argue
that Judge Fischer improperly commented on the credibility of Rivera in
the presence of the jury. Accordingly, we are not persuaded by the courts’
reasoning in Smith or Silverman.
In addition, the courts in Brent and Zappacosta determined that the trial
judges, who presided over the defendants’ respective bench trials, should
have recused themselves because they had heard evidence in prior, related
proceedings that was both incriminating and inadmissible as against the
defendants. See Brent v. State, supra, 63 Md. App. 205 (‘‘[t]here are times
when evidence is so prejudicial that we cannot assume the trier of fact will
be able to put the evidence aside and arrive at an impartial adjudication’’
[internal quotation marks omitted]); see also People v. Zappacosta, supra,
77 A.D. 2d 930 (‘‘[e]ven the most learned [j]udge would have difficulty
in excluding all such information from his subconscious deliberations’’). In
the present case, the defendant does not argue that any evidence presented
at Harris’ trial was inadmissible as against the defendant, or that there was
any evidence that Judge Fischer would have had to disregard or set aside
in ruling on his motion to suppress. Zappacosta and Brent, therefore, do
not provide persuasive support for the defendant’s claim.
43
We do not view these remarks about Rivera’s character as Judge
Fischer’s opinion with respect to Rivera’s credibility. Rather, we view these
remarks as being made in recognition that victims, and witnesses, may
refrain from coming forward to speak with law enforcement out of fear
of retaliation.