State v. McLaurin ( 2022 )

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STATE OF CONNECTICUT v.
GREGORY E. MCLAURIN
(AC 44523)
Alvord, Seeley and DiPentima, Js.
Syllabus
Convicted of several crimes in connection with his role in the robbery of
a restaurant, the defendant appealed to this court, claiming that the
trial court improperly denied his motion to suppress evidence of his
identification by B, an employee of the restaurant, during a one-on-
one showup procedure arranged by the police. The defendant and an
accomplice, F, had forced the restaurant’s employees at gunpoint to
give them money from the restaurant’s safe and cash registers before
fleeing on foot across a heavily trafficked road. Within ten minutes after
receiving the call regarding the armed robbery, the police apprehended
F and detained him in the parking lot of a car dealership about 800 feet
from the crime scene, where they had set up a staging area. While the
police continued to search for the defendant, an officer drove B from
the restaurant to the car dealership, which was well lighted, for a one-
on-one showup identification during which she promptly identified F
as one of the robbers. After the police apprehended the defendant a
short time later, they drove B from the restaurant back to the staging
area where, without hesitation, she identified the defendant less than
ninety minutes after the robbery. Held that the trial court did not abuse
its discretion in denying the defendant’s motion to suppress the evidence
of B’s identification of him, as the one-on-one showup identification
procedure the police conducted was not unnecessarily suggestive in
light of the exigencies of the situation: the police, who had found a gun
in the restaurant, had no way of knowing whether other weapons were
involved in the robbery, it was reasonable for the police to believe that
the suspects remained armed and dangerous, which justified the need
to act quickly, and the officers’ belief that the safety of the public was
at risk was confirmed when they apprehended F with an eight to nine
inch knife on his person while the defendant was still at large; moreover,
the showup identification was justified by the need to quickly confirm
whether the defendant was the second perpetrator or whether the police
needed to continue their search, and, even though there did not appear
to be a risk that B would later become unavailable, the immediacy of
her identification of the defendant ensured that she viewed him while
her recollection was still fresh, and it was particularly important because
the defendant wore a mask during the robbery and B had been able to
see only his clothing, eyes, mouth and portions of his skin; furthermore,
the police did not, as the defendant contended, conduct the showup in
a suggestive place or stage it in a suggestive manner by returning B to
the parking lot where she had identified F about thirty minutes earlier
but, rather, took significant steps to minimize the inherent sugges-
tiveness of a showup identification by transporting B to a neutral loca-
tion, the car dealership, where the defendant was seated in an ambu-
lance, rather than in a police car, during the identification procedure,
the police did not indicate to B that the person she would be viewing
was the person responsible for the crime, and the fact that the defendant
was handcuffed during the showup did not render the identification
procedure unnecessarily suggestive.
Argued September 15—officially released November 8, 2022
Procedural History
Substitute information charging the defendant with
four counts of the crime of unlawful restraint in the
first degree and with one count each of the crimes of
robbery in the first degree, conspiracy to commit rob-
bery in the first degree, criminal possession of a firearm,
carrying a pistol without a permit, larceny in the fourth
degree and conspiracy to commit larceny in the fourth
degree, brought to the Superior Court in the judicial
district of Ansonia-Milford, where the court, Brown,
J., denied the defendant’s motion to suppress certain
evidence; thereafter, the case was tried to the jury
before Brown, J.; verdict and judgment of guilty of four
counts of unlawful restraint in the first degree, and of
robbery in the first degree, conspiracy to commit rob-
bery in the first degree, criminal possession of a firearm,
carrying a pistol without a permit and conspiracy to
commit larceny in the fourth degree; subsequently, the
court, Dennis, J., rendered judgment revoking the
defendant’s probation, and the defendant appealed to
this court. Affirmed.
Daniel J. Krisch, assigned counsel, for the appellant
(defendant).
Nathan J. Buchok, deputy assistant state’s attorney,
with whom, on the brief, was Margaret E. Kelley, state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Gregory E. McLaurin,
appeals from the judgment of conviction, rendered after
a jury trial, of robbery in the first degree with a deadly
weapon in violation of General Statutes § 53a-134 (a)
(2), conspiracy to commit robbery in the first degree
with a deadly weapon in violation of General Statutes
§§ 53a-48 and 53a-134 (a) (2), criminal possession of
a firearm in violation of General Statutes § 53a-217,
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a), four counts of unlawful restraint
in the first degree in violation of General Statutes § 53a-
95, and conspiracy to commit larceny in the fourth
degree in violation of General Statutes §§ 53a-48 and
53a-125. On appeal, the defendant claims that the trial
court improperly denied his motion to suppress a one-
on-one showup identification. We affirm the judgment
of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On January 19, 2018, at approximately 8:30 p.m.,
the defendant and another individual, Royshon Fergu-
son, entered a Smashburger restaurant on Boston Post
Road in Milford. Both men were wearing ski masks,
but their eyes, mouths, and the skin around their eyes
and mouths were visible. The defendant was carrying
a silver-colored, semiautomatic gun in his hand.
There were three employees working at the restau-
rant that night. Jada Brinkley and Jamal McNeil were
working in the front of the restaurant, and Casey
Deloma, the shift lead, was in the back room, which
was brightly lit and contained a small safe. There were
four customers dining in the front of the restaurant.
When the defendant and Ferguson entered Smash-
burger, two of the customers attempted to flee. The
defendant pointed the gun at them and told them, ‘‘don’t
run.’’ The defendant then gathered the customers and
employees at gunpoint and directed them to the back
of the restaurant, where Deloma was located.
Once in the back room of the restaurant, the defen-
dant handed the gun to Ferguson, who pointed it at
Deloma and told her to unlock the safe. Deloma
attempted to unlock the safe twice using a code, but it
did not unlock. Ferguson told her, ‘‘I’m going to give
you ten seconds or I’m going to shoot you.’’ Deloma
entered the code again and opened the safe. Ferguson
took the money out of the safe and put it in his pockets.
During this time, the defendant was standing in the
back room, next to Brinkley.
After taking money out of the safe, Ferguson took
Deloma to the front of the restaurant at gunpoint and
directed her to open the cash registers. She opened the
first register, and Ferguson began to take money from
it while she opened the second register.1 The defendant
remained in the back room of the restaurant with the
other victims. The defendant demanded that the victims
give him their cell phones. At that point, one of the
customers, Garfield Stewart, who was lawfully carrying
a concealed firearm, drew his weapon on the defendant,
who immediately took off running. As Stewart gave
chase, the defendant ran into the front of the restaurant,
past Ferguson, and out the front door. Stewart then
pointed his gun at Ferguson, who was bent over a cash
register, and started banging Ferguson’s hand until he
released the gun. Ferguson ran out of the restaurant,
exiting within seconds of the defendant. The defendant
and Ferguson fled in the same direction, turning right
out of the front door and running down Boston Post
Road.
At approximately 8:40 p.m., the Milford Police Depart-
ment received a high priority call that an armed robbery
was in progress at Smashburger on Boston Post Road.
Three minutes later, Officer Matthew Joy arrived to
a chaotic scene and immediately turned on his body
camera. As the first responding officer on scene, Officer
Joy secured the scene, ensured that no suspects
remained on the premises, and determined that the
employees and customers were uninjured. Additionally,
he located a gun on the floor behind the front counter
of the restaurant. After speaking with the employees
and customers, Officer Joy learned that two suspects
had fled the restaurant on foot, turning right out of the
front door. One suspect, later identified as Ferguson,
was described as ‘‘a black male, about five feet, six
inches, heavyset, wearing jeans and a dark colored . . .
hooded sweatshirt . . . .’’ The other suspect, later
identified as the defendant, was described as ‘‘a black
male, approximately six feet, six foot one, a thinner
build wearing jeans, a red hooded sweatshirt with a
dark colored top coat layer.’’ Officer Joy did not receive
descriptions of the suspects’ faces because he was told
that they were wearing dark-colored ski masks, one
black and one green.
Officer Joy promptly relayed a description of the
suspects to his fellow officers over his portable police
radio. A passing motorist flagged down police officers
responding to the scene and reported that he had just
seen two black males run into a wooded area, behind
a car dealership and storage facility, that was located
approximately 800 feet across the street from Smash-
burger. At that time of night, there was limited pedes-
trian activity on Boston Post Road, but there was signifi-
cant vehicular traffic.
Officer Sean Owens, a canine handler, and his part-
ner, Canine Officer Czar, responded to the wooded area
behind the car dealership. It was a cold night, there
was some ice on the ground, and the wooded area was
dimly lit. Officer Owens casted2 Czar into the general
area where the subjects were last seen, and Czar imme-
diately alerted to an apocrine odor, a particular odor
that humans emit when they are emotionally charged
or fearful. Czar began pulling south along the overgrown
grass and wood line that ran between the storage facility
and wooded area. Upon reaching the car dealership
parking lot, Czar displayed a proximity alert3 and then
pulled deeper into the wooded area, toward a marsh, for
approximately twenty-five to thirty yards, when Officer
Owens saw the first suspect, later identified as Fergu-
son. Officer Owens, and his fellow officers who were
providing backup, gave several verbal commands for
Ferguson to get down on the ground and show his
hands. Ferguson ignored the officers’ commands and
reached for his waistband, which prompted Officer
Owens to give Czar a command to apprehend Ferguson.
Czar subdued Ferguson with a bite to the leg. Once
Ferguson complied with Officer Owens’ commands,
Czar was removed, and Officer Christopher Deida
detained Ferguson.
Officer Deida searched Ferguson, who told him that
he had a knife on his person. Officer Deida located an
eight to nine inch kitchen knife in the front pocket of
Ferguson’s sweatshirt. Additionally, officers found $868
in cash on Ferguson, with many of the bills ‘‘hanging
out of his pockets.’’ Ferguson told Officer Deida that
his friend ‘‘jumped the fence’’ and pointed to a nearby
chain-link fence with barbed wire that ran along the
wooded area. Officer Deida and another officer moved
Ferguson from the wooded area to the parking lot of
the car dealership, where the officers had set up a
staging area. The officers had called an ambulance to
the car dealership, and Ferguson was treated for his
dog bite.
At 8:50 p.m., ten minutes after the police received
the call regarding the armed robbery, Officer Joy, who
had remained on scene at Smashburger, received a
radio transmission informing him that a suspect had
been apprehended. Sergeant Christopher Dunn,4 Officer
Joy’s commanding officer, instructed him to conduct
an eyewitness showup,5 at the car dealership, with a
victim. Officer Joy selected Brinkley because he deter-
mined that she had the best view of the robbers. Shortly
thereafter, Officer Joy brought Brinkley to the car deal-
ership where she identified Ferguson as one of the
robbers, without hesitation and within less than one
minute.
Meanwhile, Officer Owens and Czar continued to
search for the second suspect. Officer Owens attempted
to get Czar back on task, which was difficult because
of the excitement surrounding Ferguson’s apprehen-
sion and the additional personnel in the area whose
odor began to contaminate the scene. For twenty to
thirty minutes, Officer Owens and Czar continuously
tracked within the wooded area, even rechecking cer-
tain areas. Czar continued to return and show interest
in the marsh area, near where Ferguson was found, and
Officer Owens ‘‘felt confident that there was somebody
else in this area.’’ However, Officer Owens became con-
cerned that Czar was getting tired, and that the scene
was overwhelmingly contaminated, so he decided to
end the track and return Czar to his vehicle to regroup.
As they began to walk back to the vehicle along the
back of the storage building, Czar changed his behavior,
hooked his head,6 and pulled Officer Owens toward the
marsh, deep within the wooded area.
Officer Owens found the second suspect about fifty
to sixty yards from where Ferguson was apprehended
and in a location ‘‘where the dog . . . twenty minutes
earlier, wanted to kind of get into . . . .’’ The second
suspect, who was later identified as the defendant, was
‘‘hunkered down in head high thickets . . . well hidden
. . . in close proximity to all the noise and everything
else going on for the first subject.’’ Officer Owens told
the defendant to show him his hands, but the defendant
attempted to flee deeper into the woods and marsh. At
that point, Officer Owens gave Czar the command to
apprehend the defendant, which Czar did with a bite
to the lower leg. As the only officer in the woods at
that time, Officer Owens handcuffed the defendant,
removed Czar, and radioed for backup. Officers took
the defendant to the car dealership parking lot where
medical personnel attended to his dog bite injury.
At 9:42 p.m., Officer Joy received information that a
second suspect had been detained at the car dealership.
Officer Joy was instructed to bring Brinkley back to
the car dealership to conduct the second showup identi-
fication. After arriving at the car dealership, Brinkley
identified, without hesitation, the defendant as one of
the robbers.
On January 20, 2018, the day after the robbery, offi-
cers returned to the area where the defendant and Fer-
guson were apprehended to search for additional evi-
dence. Officers recovered one black, knit ski mask, a
black knit glove, and a ten dollar bill Additionally, offi-
cers recovered a camouflage jacket, which was located
over the top of a tall chain-link fence with barbed wire
along the top. The jacket was spread out, as though
someone had used it as protection when trying to climb
over the fence.
The defendant was subsequently arrested and
charged with robbery in the first degree, conspiracy to
commit robbery in the first degree, criminal possession
of a firearm, carrying a pistol without a permit, four
counts of unlawful restraint in the first degree, larceny
in the fourth degree, and conspiracy to commit larceny
in the fourth degree.
On June 11, 2019, the defendant filed a motion to
suppress the identification evidence of him as improper,
unreliable, and unnecessarily suggestive. The court held
a hearing on the motion to suppress on July 15, 2019,
prior to the start of trial. During the hearing, the state
presented evidence from Officer Joy and Brinkley. The
defendant cross-examined the state’s witnesses but did
not call any witnesses in support of his motion to sup-
press.
During the hearing, Officer Joy testified that, seven
minutes after he had arrived at Smashburger, he
received a radio transmission informing him that fellow
officers had detained a suspect, later identified as Fer-
guson, at a car dealership across the road. Officer Joy
was instructed to bring one witness to conduct a
showup identification. He chose Brinkley because
‘‘[s]he was the employee near the front register closest
to the front of the store [and she had] encountered the
suspects first.’’ Officer Joy testified that he had turned
his body camera on upon arriving at Smashburger at
8:43 p.m. and that he had it recording the entire time
he was on scene.
Officer Joy transported Brinkley to the car dealership
in his patrol cruiser. Brinkley was seated in the rear
driver’s side seat, separated from Officer Joy by a metal
and glass divider. Prior to showing Brinkley the suspect,
Officer Joy read Brinkley the preprinted rules and
instructions form for identification procedures, which
had been provided to him by the supervisory sergeant
on duty that evening. Officer Joy did not communicate
to Brinkley that the police had the person in custody
who was responsible for the robbery. After reading her
the instructions, Officer Joy provided Brinkley with the
opportunity to ask questions. Brinkley did not have any
questions and appeared to understand the instructions.
At the dealership, Officer Joy rolled down Brinkley’s
window. The car dealership was well lit by the lights
from the ambulance and streetlamps. Officer Joy’s
cruiser lights were on but did not face toward the sus-
pect. At 9:12 p.m., Brinkley identified Ferguson as the
first suspect, promptly and without hesitation. Follow-
ing the identification, Officer Joy transported Brinkley
back to Smashburger. He testified that, upon returning
to the restaurant, he obtained written statements from
the employees and customers who were present at the
time of the robbery.
At 9:42 p.m., Officer Joy received a radio transmission
informing him that a second suspect had been detained
at the car dealership. Officer Joy was instructed to
bring Brinkley back to conduct a showup identification.
Officer Joy read Brinkley an identification instructions
and advisement form, which Brinkley signed. He did
not, in any way, indicate to Brinkley that the suspect
she was going to view was responsible for the crime.
Upon arriving at the car dealership, Officer Joy pro-
ceeded to the same location where Brinkley previously
had identified Ferguson. As with the prior identification,
Brinkley was seated in the rear driver’s seat and viewed
the defendant out of the rolled down window. The area
remained well lit. The defendant was seated in the back
of an ambulance, approximately two to three car
lengths from Officer Joy’s cruiser. Officer Joy did not
recall whether the defendant was handcuffed at the
time or whether there were officers standing near the
defendant. Officer Joy testified that Brinkley identified
the defendant as the second suspect at 9:56 p.m. and
that she did not hesitate in making the identification.
Officer Joy testified that the exigent circumstances
necessitating a showup identification of the defendant
were ‘‘that an armed robbery had just occurred with a
firearm and the suspects who had left the scene of
the crime on foot, after having one suspect detained,
possibly could still have other weapons on their per-
son.’’ He explained that it was ‘‘exigent to either clear
or positively identify the suspect to make sure that they
aren’t further armed or clear the person who is being
[identified].’’ Additionally, Officer Joy testified that it
was important to eliminate the defendant as a suspect
in the event that the perpetrator remained in the com-
munity. Moreover, he testified that, during the course
of the investigation, he learned that Ferguson had been
apprehended with a knife and that he did not know
how many weapons were involved in the incident.
During cross-examination of Officer Joy, defense
counsel introduced a document titled ‘‘Milford Police
Department General Orders—Eyewitness Identifica-
tion’’ over the objection of the state. Defense counsel
highlighted a portion of the document, which stated
that ‘‘[s]howup identification procedures are employed
soon after a crime has been committed, when a suspect
is detained at or near the crime, or under exigent cir-
cumstances such as the near death of the eyewitness
or victim.’’ Officer Joy confirmed that the contents of
the paragraph were accurate and answered in the nega-
tive when asked whether anyone was in a near death
state at the time of identification.
Brinkley testified during the hearing that, in January,
2018, she was working as a cashier at Smashburger.
When asked about a night in January, 2018, when two
people came into the restaurant, she testified that she
had no memory of the event or the night in question.
She testified, ‘‘I just got into a car accident. I was uncon-
scious, don’t remember. I smoke weed. . . . I do not
remember this night . . . .’’ The prosecutor showed
Brinkley four clips of footage from Officer Joy’s body
camera wherein Brinkley can be seen and heard identi-
fying Ferguson, identifying the defendant, and dis-
cussing the suspects’ physical features and clothing.
Brinkley confirmed that it was her voice and image in
the clips but testified that she had no recollection or
memory of the captured events.
The prosecutor also introduced Brinkley’s written
statement to the police in which she described the
appearance of the robbers. Brinkley confirmed that the
statement was handwritten and signed by her but testi-
fied that she had no recollection of writing the state-
ment or the contents of the statement. Additionally,
when shown the eyewitness instructions for identifica-
tion procedures, which Officer Joy testified that he had
read to Brinkley prior to her identification of the defen-
dant, Brinkley confirmed that she had signed and dated
the document. On cross-examination, Brinkley testified
that she ‘‘[m]ost likely’’ smoked ‘‘weed’’ on the day of
the robbery but ultimately stated that she did not know
if she had done so.
Following the presentation of evidence at the hearing,
defense counsel argued that Brinkley’s identification
should be suppressed on three grounds: (1) law enforce-
ment did not comply with General Statutes § 54-1p,
which requires the use of fillers in lineups and photo-
graphic arrays, but that here, the defendant was the
only person presented;7 (2) Milford Police Department
procedure allows for the use of showup identifications
under certain circumstances, which were not present
in this case;8 and (3) Brinkley had no recollection of
making the identification. In concluding his argument,
defense counsel stated, ‘‘the prejudicial effect of this
procedure in identifying the defendant as the person
who perpetrated the crime far outweighs the proba-
tive value.’’
In response, the prosecutor argued that the relevant
standard was the two-pronged due process standard,
which required the defendant to prove that the showup
identification was both unnecessarily suggestive and
unreliable, not a probative-prejudicial balancing test.
The prosecutor argued that the defendant had not met
his burden of proof. As to the first prong, the prosecutor
argued that the showup procedure was not unnecessar-
ily suggestive under the circumstances at issue, in
which the two perpetrators had committed an armed
robbery and fled the scene on foot, the police had an
available eyewitness with a fresh memory of the perpe-
trators and needed to determine whether the defendant
was the perpetrator or whether to continue searching
for the perpetrator to safeguard the public. The prosecu-
tor argued further that, even if the court concluded that
the showup identification procedure was unnecessarily
suggestive, it was nevertheless reliable because of ‘‘the
detail of the description, the accuracy, [and] the quick
identification . . . .’’
The court stated that it had reviewed relevant case
law and then orally denied the defendant’s motion to
suppress the identification evidence. In issuing its rul-
ing, the court stated: ‘‘The court has had an opportunity
to consider the motion to suppress identification, con-
sider the testimony of Officer Joy and the testimony of
Ms. Brinkley as well, and argument by counsel. The
court finds that the identification, given all the facts
and circumstances, was not unduly suggestive.’’9
At trial, Officer Joy testified in a manner consistent
with the testimony he provided at the suppression hear-
ing. He reiterated that, given the nature of the crime
and the fact that a firearm was found on scene, it was
‘‘a priority, probably the main priority, to get out infor-
mation regarding the suspects’ location, direction of
travel, description . . . as quick as possible, because
you don’t know if they’re still armed. You don’t know
what they could be armed with, how many weapons.
You know, there’s already one weapon found on the
scene prior to them leaving and it’s a public safety issue
as well as a time sensitive issue on, you know, capturing
the subjects.’’ Similarly, Officer Christopher Lennon,
who was flagged down by the passing motorist that
evening, testified that he and his fellow officers ‘‘didn’t
stop to take [the motorist’s] name or information
because we heard that there was a firearm involved in
the robbery so we figured it was more important that
we try to apprehend the suspects.’’
During cross-examination of Sergeant Dunn, who, at
the time of the robbery, was supervising Officer Joy at
Smashburger, defense counsel asked whether there was
an emergency that necessitated a showup identifica-
tion. Sergeant Dunn responded: ‘‘No, there was a
request from the captain.’’ During cross-examination
of Detective Michael Cruz, who was in charge of the
investigation, defense counsel inquired whether ‘‘there
[was] anything that prevented [the officers] from doing
a photo lineup of [the defendant] with the witnesses
and the employees of Smashburger?’’ Detective Cruz
responded that, ‘‘for this case and my training and expe-
rience the showup was appropriate. I believe there is
enough probabl[e] cause on that night to arrest the
two defendants for the robbery.’’ When defense counsel
again asked whether there was anything that prevented
the officers from ‘‘doing a photo lineup’’ with the other
witnesses and restaurant employees, Detective Cruz
responded, ‘‘[n]o.’’ Defense counsel then asked whether
there was anything that prevented the officers from
doing a ‘‘live lineup’’ with the defendant and the other
restaurant employees, and Detective Cruz responded,
‘‘[n]o.’’
Brinkley also testified in a manner consistent with
her testimony at the suppression hearing. She testified
that, as a result of a recent car accident and regular
marijuana use, she has a ‘‘short memory’’ and has no
recollection of what happened on the night of the rob-
bery. On cross-examination, Brinkley testified that she
‘‘most likely’’ smoked weed on the day of the robbery
because she ‘‘get[s] high almost every day . . . .’’ When
asked how she was feeling on the day of the robbery,
however, she stated, ‘‘I don’t remember too much
. . . .’’ Detective Cruz, who spoke with Brinkley on the
night of the robbery, testified that she did not appear
to be under the influence of any drugs that evening and
that he did not have any concern about her participating
in the showup identification on that night.
Due to Brinkley’s lack of recollection, the court
admitted into evidence, under State v. Whelan, 200
Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107
S. Ct. 597, 93 L. Ed. 2d 598 (1986),10 the signed witness
statement Brinkley gave to the police on the night of
the robbery. Brinkley read the statement aloud in its
entirety.11 Additionally, the prosecutor showed the jury
four video clips that were recorded from Officer Joy’s
body camera on the night of the robbery.12 In the first
two clips, Brinkley can be heard identifying Ferguson.
In the third clip, Brinkley can be heard discussing the
mask color of the ‘‘skinny’’ perpetrator. In the fourth
clip, Brinkley can be heard identifying the defendant
at the staging area. When asked if she recognized the
individual’s clothing, she stated: ‘‘Yep, I see. Can you
put some light on his jeans?’’ Once the perpetrator
stands up, Brinkley can be heard saying: ‘‘Yep, that’s
him.’’ When asked how sure she is, she can be heard
saying: ‘‘Yup, I’m sure.’’
The jury found the defendant guilty of all counts,
except for larceny in the fourth degree. The defendant
was sentenced to twenty-five years of incarceration,
execution suspended after eighteen years, and five
years of probation.13
The defendant’s sole claim on appeal is that the court
improperly denied his motion to suppress the showup
identification on the ground that it was unnecessarily
suggestive and unreliable. In response, the state argues,
inter alia, that the court properly concluded that the
showup identification of the defendant was not unnec-
essarily suggestive given the exigent circumstances. We
agree with the state.
‘‘The test for determining whether the state’s use of
an [allegedly] 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 fairness is the standard underlying due
process, and consequently, reliability is the linchpin in
determining the admissibility of identification testi-
mony . . . . Thus, the required inquiry is made on an
ad hoc basis and is two-pronged: first, it must be deter-
mined whether the identification procedure was unnec-
essarily suggestive; and second, if it is found to have
been so, it must be determined whether the identifica-
tion was nevertheless reliable based on examination of
the totality of the circumstances . . . .
‘‘With respect to the first prong of this analysis,
[b]ecause, [g]enerally, [t]he exclusion of evidence from
the jury is . . . a drastic sanction, [it] . . . is limited
to identification testimony [that] is manifestly suspect
. . . . [Consequently] [a]n identification procedure is
unnecessarily suggestive only if it gives rise to a very
substantial likelihood of irreparable misidentification.
. . . We have recognized that [ordinarily] a one-to-one
confrontation between a [witness] and the suspect pre-
sented . . . for identification is inherently and signifi-
cantly suggestive because it conveys the message to
the [witness] that the police believe the suspect is guilty
. . . . For this reason, when not necessary, the presen-
tation of a single suspect to a witness by the police (as
opposed to a lineup, in which several individuals are
presented [by] the police, only one of whom is the
suspect) . . . has . . . been widely condemned
. . . .
‘‘It is well established, however, that the use of a
one-on-one showup identification procedure does not
invariably constitute a denial of due process, as it may
be justified by exigent circumstances. . . . Thus, a
showup identification procedure conducted in close
temporal and geographic proximity to the offense may
be deemed reasonable, and, therefore, permissible for
federal due process purposes, when it was prudent for
the police to provide the victim with the opportunity
to identify [her] assailant while [her] memory of the
incident was still fresh . . . and . . . [the procedure]
was necessary to allow the police to eliminate quickly
any innocent parties so as to continue the investigation
with a minimum of delay, if the victim excluded the
defendant as a suspect or was unable to identify him.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) State v. Ruiz, 337 Conn. 612, 621–
23, 254 A.3d 905 (2020).
Additionally, ‘‘the entire procedure, viewed in light
of the factual circumstances of the individual case . . .
must be examined to determine if a particular identifica-
tion [procedure] is tainted by unnecessary sugges-
tiveness. The individual components of a procedure
cannot be examined piecemeal but must be placed in
their broader context to ascertain whether the proce-
dure is so suggestive that it requires the court to con-
sider the reliability of the identification itself in order to
determine whether it ultimately should be suppressed.’’
(Emphasis in original.) State v. Aviles, 154 Conn. App.
470, 477, 106 A.3d 309 (2014), cert. denied, 316 Conn.
903, 111 A.3d 471 (2015).
‘‘To prevail in his claim, the defendant must demon-
strate that the trial court erred in both of its determina-
tions regarding suggestiveness and reliability of identifi-
cations in the totality of the circumstances.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Wooten, 227 Conn. 677, 685, 631 A.2d 271 (1993). ‘‘Fur-
thermore, [w]e will reverse the trial court’s ruling [on
evidence] only where there is an abuse of discretion
or where an injustice has occurred . . . and we will
indulge in every reasonable presumption in favor of the
trial court’s ruling. . . . Because the inquiry into
whether evidence of pretrial identification should be
suppressed contemplates a series of factbound determi-
nations, 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.’’ (Internal quotation
marks omitted.) State v. Bouteiller, 112 Conn. App. 40,
46, 961 A.2d 995 (2009).
After setting forth his general contention that showup
identifications are ‘‘widely condemned’’ because they
are inherently and significantly suggestive and that exi-
gency is a ‘‘narrow exception,’’14 the defendant argues
that the procedure by which Brinkley identified the
defendant was unnecessarily suggestive for three rea-
sons: ‘‘First and foremost, the police admitted that they
did not need to use a showup’’; ‘‘[s]econd, Brinkley
identified the defendant nearly ninety minutes after the
crime, which belies any exigency’’; and ‘‘[t]hird, the
police conducted the showup in a suggestive place and
staged it in a suggestive manner.’’ In sum, the defendant
contends that ‘‘the unnecessary use of a showup
tempted [Brinkley] to presume that [the defendant] was
the person police suspect.’’15 (Internal quotation marks
omitted.) The state argues, inter alia, that ‘‘the facts
and circumstances of this case fit squarely within the
well established jurisprudence in this state holding that,
where police are engaged in a search for a possibly
armed suspect fleeing from a crime scene, and detain
an individual nearby who matches the description of
the suspect, they are justified in using a showup to
quickly determine if they have the perpetrator or need
to continue searching.’’ We agree with the state and
conclude that the showup identification procedure was
not unnecessarily suggestive because it was justified by
exigent circumstances. We are guided by our Supreme
Court’s decisions in State v. Wooten, supra, 227 Conn.
677, and State v. Revels, 313 Conn. 762, 99 A.3d 1130(2014), cert. denied, 574 U.S. 1177, 135 S. Ct. 1451, 191
L. Ed. 2d 404 (2015).
In Wooten, two passersby witnessed the defendant
drag the victim across a street to a parking lot, where
he forcibly disrobed the victim and compelled her to
engage in sexual acts. State v. Wooten, supra, 227 Conn.
681. While the victim was being assaulted, another pas-
serby, Jose Hernandez, witnessed the defendant lying
on top of the victim. Id. When the defendant saw Her-
nandez, he quickly pulled up his pants, approached
Hernandez, and told him that he had paid ten dollars
to have sex with the victim. Id. The defendant abruptly
left the scene and ran down the street. Id. Upon being
led to the scene by the two passersby, the police
obtained a description of the assailant from Hernandez,
who ‘‘then got into a police car with [the officer] to
reconnoiter the area in an attempt to locate the assail-
ant’’ and successfully did so. Id., 682. Approximately
one-half hour after the attack, the police brought the
victim to where the defendant, the person Hernandez
had identified as the assailant, was being detained. Id.,
684. There, after being asked ‘‘to try to identify her
assailant and told not to be frightened,’’ the victim
exited the police car, walked over to a distance of
approximately eight to ten feet from the rear of the
lit police car in which the defendant was seated, and
positively identified the defendant as the person who
had assaulted her. Id., 684–85. During a hearing on the
defendant’s motion to suppress the identification, the
victim testified that, despite being reluctant to attempt
the identification, ‘‘she was absolutely certain that the
person in the police car was her assailant’’ and stated
she had not been coached. Id., 685. ‘‘At the close of
the hearing, the trial court concluded that the victim’s
identification of the defendant, although suggestive,
was not unnecessarily so.’’ Id.
Our Supreme Court agreed that, although the showup
identification was obviously suggestive, it was not
unnecessarily so because ‘‘the exigencies of the situa-
tion justified the procedure.’’ (Internal quotation marks
omitted.) Id., 686. The court concluded that ‘‘[t]he con-
frontation was not unnecessary because it was prudent
for the police to provide the victim with the opportunity
to identify her assailant while her memory of the inci-
dent was still fresh . . . and because it was necessary
to allow the police to eliminate quickly any innocent
parties so as to continue the investigation with a mini-
mum of delay.’’ (Citations omitted; internal quotation
marks omitted.) Id. The defendant contended that,
because the victim was emotionally distraught and Her-
nandez had already made an identification of the defen-
dant, the exigencies of the situation did not warrant a
one-on-one identification procedure with the victim.
Id., 687. The court disagreed and concluded that ‘‘[t]he
immediate viewing enabled the police to focus their
investigation and gave them greater assurance that
innocent parties were not unjustly detained.’’ (Internal
quotation marks omitted.) Id.
Our Supreme Court’s decision in State v. Revels,
supra, 313 Conn. 762, is also instructive. In Revels, the
police responded to a shooting, at about 11 p.m., and
discovered the victim lying on the ground, unable to
communicate, with a semiautomatic pistol near his right
hand. Id., 766. While canvassing the area for suspects,
the police were approached by a witness who claimed
to have seen the shooting from her apartment window,
approximately 265 feet away. Id., 767. The police subse-
quently apprehended a suspect who matched the
description that the witness had provided. Id. Officers
drove the witness to the location where the defendant
was ‘‘standing in the middle of the road, handcuffed
and surrounded by uniformed police officers.’’ Id. When
the officer directed his cruiser’s spotlight toward the
defendant, the witness immediately identified the
defendant, whose clothing matched the description the
witness had previously provided. Id.
Our Supreme Court held that the showup identifica-
tion procedure was not unnecessarily suggestive in light
of the exigencies of the situation. Id., 773–74. The court
recognized that it was unclear whether the gun found
near the victim’s body was the murder weapon but
that its location made it reasonable for the police to
conclude that it likely belonged to the victim. Id., 773.
‘‘It was reasonable for the police to believe, therefore,
that the shooter was likely to be on the run, in the area,
and armed. Safeguarding the public from a possibly
armed and dangerous fugitive was an immediate and
pressing need.’’ Id. Additionally, the court concluded
that ‘‘it was necessary to conduct a showup procedure
in order to eliminate [the defendant] as a suspect as
soon as possible so that the police could continue to
search for the shooter and recover the murder weapon.’’
Id., 773–74. Moreover, the court noted that, although
there was no risk that the witness would become
unavailable, the immediate identification ensured that
‘‘she viewed the suspect while her recollection was still
fresh.’’ Id., 774.
Here, as in Wooten and Revels, exigent circumstances
justified the use of a showup identification of the defen-
dant. The officers responded quickly to a high priority
call concerning an armed robbery and learned that the
two suspects had abruptly fled the crime scene on foot
down and across a heavily trafficked road. Although
the officers found one weapon at the scene,16 the offi-
cers had no way of knowing whether other weapons
were involved, and it was reasonable for them to believe
that the suspects remained armed and dangerous,
which justified the officers’ need to act quickly. See
State v. Revels, supra, 313 Conn. 775 (‘‘[s]afeguarding
the public from a possibly armed and dangerous fugitive
was an immediate and pressing need’’). In fact, the
officers’ belief that the public’s safety was at risk was
confirmed when they apprehended Ferguson and dis-
covered that he was carrying an eight to nine inch
kitchen knife on his person. Therefore, it was reason-
able for the police to assume that the defendant was
‘‘on the run, in the area, and armed.’’ Id., 773.
The officers were justified in conducting a showup
identification, approximately 800 feet from the scene
of the crime and seventy-six minutes after they arrived
on scene, to quickly confirm whether the defendant,17
who matched the description of one of the suspects,
was the second perpetrator or whether they needed to
continue their search. See State v. Ruiz, supra, 337
Conn. 623 (‘‘showup identification procedure con-
ducted in close temporal and geographic proximity to
the offense may be deemed reasonable’’); see also State
v. Wooten, supra, 227 Conn. 686–87 (‘‘[a]n immediate
viewing of the suspect may be justified where it [is]
important for the police to separate the prime suspect
gold from the suspicious glitter, so as to enable them
. . . to continue their investigation with a minimum of
delay’’ (internal quotation marks omitted)). Moreover,
although there did not appear to be a risk that Brinkley
would become unavailable, ‘‘the immediate identifica-
tion ensured that [Brinkley] viewed the suspect while
her recollection was still fresh.’’ State v. Revels, supra,
313 Conn. 774. The immediacy of the identification was
particularly important because the defendant was wear-
ing a mask during the commission of the robbery; there-
fore, Brinkley could only see his eyes, mouth, the skin
around his eyes and mouth, and his clothing. See State
v. St. John, 282 Conn. 260, 279, 919 A.2d 452 (2007)
(given that witnesses observed unmasked robber only
from side and back, ‘‘it was important for the witnesses
to be able to view the defendant as soon as possible
while their memories remained fresh’’).
The defendant contends that there was no‘‘ ‘necessity
or urgency’ ’’ for conducting a showup identifica-
tion because the ‘‘police admitted that they did not
need to use a showup,’’18 ‘‘Brinkley was unhurt,’’19 and
‘‘the defendant was in custody.’’ Additionally, the defen-
dant cites to three Connecticut cases in which the court
held that a showup identification procedure was unnec-
essarily suggestive due to the lack of exigent circum-
stances. See State v. Gordon, 185 Conn. 402, 414–15,
441 A.2d 119 (1981) (no exigent circumstances existed
where defendant was in custody, defendant made
incriminating statements, arresting officer testified he
‘‘had no doubt that he had found the assailant,’’ showup
identification did not take place at scene or at earliest
opportunity, and state made no claim lineup was
impractical) (overruled in part on other grounds by
State v. Artis, 314 Conn. 131, 101 A.3d 915 (2014)), cert.
denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848(1982); State v. Theriault, 182 Conn. 366, 373, 438 A.2d
432 (1980) (showup was unnecessarily suggestive
where police informed witness someone had been
arrested, showed witness gun used in crime, took wit-
ness to identify handcuffed defendant through one-way
mirror, and there was no claim lineup procedure was
impractical); State v. Anderson, 6 Conn. App. 15, 22–23,
502 A.2d 446 (1986) (officers did not testify that ‘‘there
was a special need to have an immediate identification
made’’; therefore, ‘‘case presented no danger that the
opportunity for an identification would be lost unless
a speedy showup was held’’).
There was extensive evidence regarding the exigency
that necessitated using the showup procedure; thus,
we disagree with the defendant’s contention that the
testimony of Sergeant Dunn and Detective Cruz ren-
dered the showup identification procedure unnecessar-
ily suggestive. As set forth previously, Officer Joy testi-
fied in detail regarding the exigency of the situation at
the suppression hearing and during trial. Additionally,
his testimony was supported by that of Officer Lennon,
who testified that, due to the severity of the crime—
an armed robbery in a restaurant—the police did not
gather information from the passing motorist because
it was ‘‘more important that we try to apprehend the
suspects.’’ See State v. Ledbetter, 275 Conn. 534, 552,
881 A.2d 290 (2005) (focus of police investigation was
to apprehend perpetrators; therefore, witness’ ‘‘identifi-
cation provided additional assurance that the police
had done so’’) (overruled in part by State v. Harris,
330 Conn. 91, 191 A.3d 119 (2018)), cert. denied, 547
U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
Moreover, even if police officers testify, after the
fact, that they possibly could have used an alternative
procedure, that is not compelling because our Supreme
Court has upheld the use of a showup identification
under circumstances in which it may have been possible
to conduct a lineup, i.e., when the suspect was in cus-
tody. See State v. Revels, supra, 313 Conn. 773–74
(although defendant was in custody, police had not
recovered weapon from him; therefore, showup identi-
fication was necessary to eliminate him as suspect as
soon as possible); see also State v. Ledbetter, supra,275 Conn. 552 (police were not required to place investi-
gation on hold, and not conduct showup identification,
‘‘as soon as they had sufficient evidence to arrest the
suspects’’). The cases that the defendant cites to the
contrary are factually inapplicable to the present case.
Here, officers testified that the severe nature of the
crime necessitated the use of a showup identification
to quickly determine whether the suspects were in fact
the robbers in order to protect the public. Cf. State v.
Anderson, supra, 6 Conn. App. 21 (defendant exten-
sively questioned three officers during motion to sup-
press hearing, which resulted in ‘‘no indication that
there was a special need to have an immediate identifi-
cation made’’).
Furthermore, the defendant contends that ‘‘the police
conducted the showup in a suggestive place and staged
it in a suggestive manner’’ because they returned Brink-
ley to the parking lot where she had identified Ferguson
thirty minutes previously, and she viewed both suspects
in the same manner, ‘‘handcuffed and by the back of
an ambulance,’’ and from the same vantage point.20 We
disagree. The police, far from staging the showup sug-
gestively, took significant steps to minimize its inherent
suggestiveness. First, Brinkley was transported to a
neutral location where the defendant had been taken
after he was apprehended, rather than transporting the
defendant back to the crime scene or conducting the
showup at the police station. See State v. Brown, 113
Conn. App. 699, 704–705, 967 A.2d 127 (2009) (one-
on-one showup at crime scene was not unnecessarily
suggestive because it was justified by exigencies); see
also State v. Gordon, supra, 185 Conn. 414 (‘‘circum-
stances of the station house showup unnecessarily sug-
gested to the victim that she should positively identify
the defendant’’). Second, the defendant was seated in
the back of an ambulance, not in a police car. See
State v. Wooten, supra, 227 Conn. 686 (confrontation
obviously suggestive where ‘‘[t]he victim must have
realized that the defendant, seated alone in the rear of
a police car, was a person whom the police at least
believed to have had something to do with the crime’’).
Third, Officer Joy testified that, at no point did he indi-
cate to Brinkley that the person she would be viewing
was the person responsible for the crime. See State v.
St. John, supra, 282 Conn. 278–79 (significant factors
in determining showup identification procedure was
not unnecessarily suggestive were that there was ‘‘no
evidence that the police had suggested to the witnesses
that they had to identify the defendant, that the defen-
dant was indeed the person who had committed the
crime or that the police had coerced the witnesses in
any way’’); cf. State v. Ruiz, supra, 337 Conn. 623 n.9
(The ‘‘procedure likely will be considered unnecessarily
suggestive . . . if the police engage in conduct that is
needlessly or gratuitously prejudicial. See, e.g., Velez v.
Schmer, 724 F.2d 249, 250 (1st Cir. 1984) (during one-
on-one showup identification procedure, police said to
witnesses, [t]his is him, isn’t it?’’) (Internal quotation
marks omitted.)). Finally, as to whether the defendant
was handcuffed,21 our Supreme Court has recognized
that the use of handcuffs and illumination does not
render an identification procedure unnecessarily sug-
gestive. See State v. Ruiz, supra, 337 Conn. 623; State
v. Revels, supra, 313 Conn. 774. ‘‘A consideration of the
entire identification procedure in light of the factual
circumstances of the case’’22 reveals that the trial court
did not abuse its discretion in determining that the
showup identification of the defendant was not unnec-
essarily suggestive.23 State v. Foote, 122 Conn. App. 258,
268, 998 A.2d 240, cert. denied, 298 Conn. 913, 4 A.3d
834 (2010).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The restaurant manager testified that, upon running sales reports for
the day, $1456 was missing after the robbery.
2
Officer Owens testified that ‘‘casting is basically letting the dog engulf
the immediate area in front of you and seeing if he picks up anything, as
opposed to targeting him on say this cup right here where someone touched
and this would be the evidence of I want you to smell this cup and then
start your track. So, casting is more of a general, open, free of getting the
odor that’s right in front of you.’’
3
Officer Owens testified that a proximity alert is a ‘‘change in a dog’s
behavior’’ that signifies to his handler ‘‘that someone is close, that this main
pool of odor is getting stronger for the dog.’’
4
We note that, at the time of trial, Sergeant Dunn had been promoted to
lieutenant.
5
Officer Joy testified that ‘‘[a] showup is when you transport a victim or
witness to the area of where the suspect is detained to conduct an eyewitness
showup where they would identify whether or not that suspect is the one
who, in fact, committed the crime.’’
6
Officer Owens testified that ‘‘[Czar] hooked his head to a direction,
meaning he’s interested in something that’s going on in there . . . .’’
7
In response to defense counsel’s argument on the first ground, the court
stated: ‘‘Well, this was meant as a showup and it wasn’t meant as a lineup,
right? I mean, this was not meant as a lineup, it’s pretty clear. So, is your
argument that showups are impermissible?’’ Defense counsel responded
that no, that was not his argument and moved onto his second point. The
prosecutor addressed defense counsel’s argument, premised on § 54-1p, and
argued that § 54-1p has no applicability to this case because the statute
applies to lineup and photographic array identifications, not showup identifi-
cations.
8
Defense counsel pointed specifically to language in the Milford Police
Department General Orders, which states: ‘‘Showup identification proce-
dures are employed soon after a crime has been committed when a suspect
is detained at or near the crime or under exigent circumstances such as the
near death of the eyewitness or a victim.’’ In response to defense counsel’s
argument on the second ground, the court asked: ‘‘Was this not at or near
the crime?’’ Defense counsel responded that it was but asserted that ‘‘there
were no exigent circumstances with regard to why it needed to be done
that way . . . .’’
9
Prior to filing his brief in the present appeal, the defendant filed a motion
for articulation pursuant to Practice Book § 66-5. The defendant presented
several questions for articulation, including, ‘‘[w]hat subordinate findings,
if any, did the trial court make to support its determination that Brinkley’s
identification ‘was not unduly suggestive?’ ’’ The state did not oppose this
particular request for articulation. The court denied the defendant’s motion
for articulation. This court granted the defendant’s motion for review of the
denial of his motion for articulation but denied the relief requested therein.
10
‘‘In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted a
hearsay exception allowing the substantive use of prior written inconsistent
statements, signed by the declarant, who has personal knowledge of the
facts stated, when the declarant testifies at trial and is subject to cross-
examination.’’ (Internal quotation marks omitted.) State v. Russaw, 213
Conn. App. 311, 316–17 n.5, 278 A.3d 1, cert. denied, 345 Conn. 902, 282
A.3d 466 (2022). ‘‘Inconsistencies can be found in omissions, changes of
position, denials of recollection or evasive answers. [State v. Whelan, supra],748–49 n.4.’’ Conn. Code Evid. § 6-10 (a), commentary.
11
Brinkley’s recitation of her statement was as follows: ‘‘On this day,
January 19, 2018, at approximately 8:30 I was cleaning tables in the restau-
rant. As I was getting ready to walk in the back to grab a rag, I saw the
door swing open and then came two black men, heavy set . . . with a dark
blue hoodie, dark skin on and a mask; the other male was skinny, lighter
skin, with a dark green mask, red camouflage coat on. I saw the gun in the
skinny one’s hand and I immediately went to the back to let my coworkers
know what was behind me. I showed him where the safe was, he grabbed
my arm, walked me, me and Casey, Jamal, further to the back where the
safe was located. Then he pulled out the gun again and demanded someone
to open the safe. It was silence. He started pointing the gun at everyone.
Casey asked, do you want me to open it and went to put the code in. She
put it in a couple of times but it didn’t open. The heavy male then said she
had 10 seconds to open it or he was going to shoot her. She put the code
in again and the safe opened. He grabbed the drawer and started taking the
money. Then along came the skinny individual with the four customers.
The heavy set male took Casey back to the front to empty out the registers,
meanwhile the skinny one was taking more money, he noticed one of the
customers moving and before you know it the customer pulled out his gun
and started to chase the robber. Jamal told me to call the police. I stayed
in the back until Jamal came there again, I know it was clear that the robbers
were gone.’’
12
In his appellate brief, the defendant asserts that the court admitted the
clips over defense counsel’s objection. The record reflects, however, that,
prior to the prosecutor publishing the exhibit to the jury, defense counsel
stated, ‘‘[t]here’s no objection. We’ve agreed to the exhibit coming in.’’
13
The court, Dennis, J., subsequently found that the defendant had vio-
lated a term of probation, which he was then serving in connection with a
prior conviction under a separate docket number, CR-14-149028-T, as a
result of his having committed the restaurant robbery and sentenced him
to forty months to serve concurrently with the sentence on his conviction
of the criminal charges for the restaurant robbery in docket number CR-
XX-XXXXXXX-T. Although the defendant also listed the judgment finding him
in violation of his probation on his appeal form, he has failed to brief any
claim relating to that judgment, nor did he list any claim related to that
judgment on his statement of issues on appeal. We, therefore, dismiss the
appeal to the extent that it purports to challenge the judgment finding him
in violation of his probation. See State v. Bletsch, 86 Conn. App. 186, 188
n.3, 860 A.2d 299 (2004), aff’d, 281 Conn. 5, 912 A.2d 992 (2007); State v.
Gardner, 85 Conn. App. 786, 787 n.1, 859 A.2d 41 (2004); State v. Hannon,
56 Conn. App. 581, 583 n.2, 745 A.2d 194 (2000), cert. denied, 274 Conn.
911, 876 A.2d 1203 (2005); see also Casiraghi v. Casiraghi, 200 Conn. App.
771, 772 n.1, 241 A.3d 717 (2020) (deeming abandoned those aspects of
appeal raised on appeal form and in statement of issues on appeal but not
briefed). Accordingly, our decision in this appeal relates only to the judgment
of conviction in docket number CR-XX-XXXXXXX-T.
14
Included in his arguments against the use of showup identification
procedures in general, the defendant contends that ‘‘Connecticut courts
view them with a jaundiced eye’’ and cites to ten decisions of our appellate
courts. In parentheticals, the defendant asserts that the ten cases support
the position that the court ‘‘assum[es] procedure unnecessarily suggestive’’
or ‘‘hold[s] procedure unnecessarily suggestive.’’ In its brief, the state
responds to the defendant’s contention and asserts that ‘‘[i]n all but one of
the cases cited by the defendant, however, the court ultimately held that
the showup identification evidence at issue was properly admitted and
there was no violation of the defendant’s due process rights.’’ (Emphasis
in original.)
In several of the cases, decided over the past few decades and relied on
by the defendant, the court ‘‘assum[ed]’’ the procedure was unnecessarily
suggestive as a means to reach the second prong of the analysis, reliability.
See, e.g., State v. Ruiz, supra, 337 Conn. 624 (‘‘even if we were to assume
. . . that it was unnecessarily suggestive,’’ the witness’ identification was
reliable). In one of the cases cited by the defendant, the court concluded
that the identification procedure was not unnecessarily suggestive because
it was justified by exigencies, as in State v. Wooten, supra, 277 Conn. 677.
See State v. Watson, 50 Conn. App. 591, 603–604, 718 A.2d 497, cert. denied,
247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct.
1373, 143 L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153(2001). The sole case, cited by the defendant, in which the court found that
the identification was improperly admitted, is distinguishable on its facts. See
State v. Mitchell, 204 Conn. 187, 202, 527 A.2d 1168 (showup identification
procedure was conducted at nonneutral setting, hospital; victim was wheeled
past defendants twice; and defendants were viewed as pair, not individually),
cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). In the
remainder of the cases cited by the defendant, the court ultimately found
that, although the circumstances did not necessitate a showup identification
procedure, the identification was sufficiently reliable, and therefore, prop-
erly admitted. See, e.g., State v. Brown, 187 Conn. 602, 617, 447 A.2d 734(1982).
15
In support of his argument, the defendant relies on precedent from
several federal circuit courts of appeals and the courts of other states. Given
the availability of controlling appellate authority in our state, we decline
the defendant’s invitation to consider precedent from those courts.
16
The defendant contends that, ‘‘[i]f the perpetrators had more than one
gun, then they would not have had to share a gun during the robbery’’;
however, requiring the officers to make an assumption that the perpetrators
were no longer armed due to this speculation would run contrary to the
police ‘‘duty to protect the public.’’ State v. Revels, supra, 313 Conn. 775;
id. (‘‘[T]he defendant’s argument suggests that the police should have
assumed that no further criminal activity would occur in the immediate
future, and therefore, that quick action was not necessary to protect the
public. Nothing in our case law supports this conclusion, which would
require the police to make assumptions inconsistent with their duty to
protect the public.’’).
17
The defendant contends that the fact that ‘‘Brinkley identified the defen-
dant nearly ninety minutes after the crime . . . belies any exigency’’ and
cites to cases in support of his position that showup identifications are
permissible ‘‘less than an hour’’ after the crime was committed. The state
responds that the one hour ‘‘guideline’’ is one of ‘‘the defendant’s own
creation’’ and notes that the defendant has not ‘‘cited a single case where
a court found a showup identification was inadmissible simply because it
occurred more than an hour after the crime.’’ Additionally, the state argues
that ‘‘both this court and our Supreme Court, as well as courts from other
jurisdictions cited by the defendant, have all concluded that showup identifi-
cations occurring well over an hour after the crime were not unnecessarily
suggestive due to exigent circumstances.’’ We agree with the state. See State
v. Hamele, 188 Conn. 372, 377–78, 49 A.2d 1020 (1982) (showup conducted
no more than two hours after incident not impermissibly or unnecessarily
suggestive); State v. Bell, 13 Conn. App. 420, 425, 537 A.2d 496 (1988) (showup
conducted less than two hours after crime was found to be reasonably
necessary).
18
In making his assertion, the defendant appears to rely on the trial
testimony from Sergeant Dunn and Detective Cruz during cross-examination
by defense counsel. In response to defense counsel’s question of whether
there was an emergency that required a showup identification, Sergeant
Dunn replied, ‘‘No, there was a request from the captain.’’ In response to
defense counsel’s question regarding whether there was anything preventing
them from doing a photographic lineup with the other witnesses, Detective
Cruz initially responded that, ‘‘I think for this case and my training and
experience the showup was appropriate. I believe there is enough probabl[e]
cause on that night to arrest the two defendants for the robbery.’’ When
asked again, seconds later, however, Detective Cruz responded, ‘‘[n]o.’’
19
In asserting that ‘‘Brinkley was unhurt,’’ the defendant cites to Sergeant
Dunn’s testimony on cross-examination in which he testified that Brinkley
was not in a near death state, nor in physical distress. Although the defendant
does not elaborate on this point further, he appears to be relying on the
Milford Police Department General Orders, which the defendant introduced
during the motion to suppress hearing, that state ‘‘[s]howup identification
procedures are employed soon after a crime has been committed, when a
suspect is detained at or near the crime, or under exigent circumstances
such as the near death of the eyewitness or a victim.’’ We note that during
argument on the motion to suppress, the court addressed the defendant’s
argument on this point, and stated, ‘‘[w]as this not at or near the crime?’’
Moreover, our Supreme Court has found exigent circumstances exist, even
where an eyewitness is ‘‘unhurt.’’ See State v. Revels, supra, 313 Conn. 767,
770, 773–74 (eyewitness saw murder suspect from window of her apartment
building more than 200 feet away; court found exigent circumstances to
necessitate showup identification).
20
When asked during oral argument before this court whether defense
counsel had found any cases with a similar factual background, i.e., where
the witness was brought to a location to identify a second suspect after
already having identified a first suspect in the same location, defense counsel
stated that he had not.
21
Officer Joy testified that he could not recall whether the defendant was
handcuffed during the showup identification. Officer Lennon testified that
he ‘‘would assume’’ that the defendant was handcuffed at the time that he
was identified by Brinkley ‘‘because he was apprehended in the woods as
a suspect in an armed robbery, [and] it would be our policy to handcuff
that individual.’’ After further questioning, however, Officer Lennon testified
that he did not recall whether the defendant was handcuffed.
22
The factors discussed previously comport with the eyewitness identifica-
tion instructions from the Milford Police Department General Orders, which
the defendant introduced during the motion to suppress hearing. These
instructions include: (1) ‘‘[s]uspects should not be transported back to the
scene of the crime if avoidable . . . [and] [t]hey should never be transported
to police station absent probable cause to arrest,’’ (2) ‘‘the suspect should
not be viewed when [he] is inside a police cruiser,’’ (3) ‘‘[o]fficers must not
say nor do anything that would convey to the eyewitness that they have
evidence of the suspect’s guilt,’’ and (4) ‘‘[i]f the suspect is handcuffed, [he]
should be positioned so that the handcuffs are not visible to the eyewitness.’’
23
In light of our conclusion that the showup identification procedure was
not unnecessarily suggestive, we need not address the defendant’s claim
that the identification was unreliable. See State v. Revels, supra, 313 Conn.
769 n.5.