State v. Ruiz , 188 Conn. App. 413 ( 2019 )

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STATE OF CONNECTICUT v. JOSE RUIZ
(AC 40668)
DiPentima, C. J., and Alvord and Beach, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
revoking his probation and sentencing him to a term of seven and one-
half years incarceration, execution suspended after four years, and three
years of probation, following his arrest for violating a condition of
his probation. The defendant was on probation in connection with his
conviction of assault in the first degree and carrying a pistol without a
permit, and as a condition of his probation, he was required not to
violate any criminal law of the United States, this state or any other state
or territory. During his probation period, the defendant was arrested
and charged with attempt to commit robbery in the first degree, threaten-
ing in the second degree and breach of peace in the second degree in
connection with an incident in which the defendant allegedly accosted
W at a store, threatened him with a weapon and chased him through
the store’s parking lot and nearby streets. When the police took a state-
ment from W following that incident, he indicated that someone had
tried to rob him with a gun at the store and that, if he saw the person
again, he could identify him. Thereafter, a police officer returned to the
store with W to conduct a one-on-one showup identification of the
defendant, who was removed from the police cruiser and made to stand
next to it with a spotlight shining directly on him. W immediately identi-
fied the defendant as the perpetrator. The identification occurred within
approximately twenty minutes of the officer’s initial arrival at the store
and approximately forty-five minutes after W first had reported the
incident to the police. The trial court denied the defendant’s motion to
suppress the identification, concluding that, although the identification
procedure used by police was suggestive, it was not unnecessarily sug-
gestive. Thereafter, the trial court held a hearing on the defendant’s
violation of probation charge, during which it heard testimony from
three witnesses, including W, who recounted the events of the incident.
Following the hearing, the court revoked the defendant’s probation,
concluding that although there was insufficient evidence to support a
finding that the defendant had committed robbery or attempted robbery,
the evidence was sufficient to support a finding that he had committed
an act of threatening in the second degree in violation of a condition
of his probation. On the defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that the trial court improperly
denied his motion to suppress the one-on-one showup identification,
which was based on his claim that the identification procedure was
unnecessarily suggestive and unreliable because the actions by the police
served to convince W that the defendant was the individual who had
accosted and chased him: W reported the incident within moments of
when it occurred, the defendant was apprehended by police shortly
thereafter, W had provided the police with an accurate description of
the defendant prior to the identification, and once W viewed the defen-
dant he immediately stated with certainty that the defendant was the
individual who had tried to rob him at gunpoint; moreover, although
the actions by the police were to some degree suggestive, this court in
addressing similar facts has held that such actions do not constitute a
due process violation, and given the small amount of time that elapsed
between when the incident occurred and when the one-on-one showup
identification was conducted, the identification procedure was not
unnecessarily suggestive inasmuch as there was an exigency to provide
W with an opportunity to identify the defendant while his memory of
the incident was still fresh and to assist the police in determining whether
they had apprehended the correct individual.
2. The defendant’s claim that the trial court improperly found that he violated
a condition of his probation because there was insufficient evidence to
support its finding that he committed an act of threatening in the second
degree in violation of statute (§ 53a-62 [a] [1]) was unavailing, as that
finding was not clearly erroneous; as a condition of his probation, the
defendant was required not to violate any criminal law of the United
States, this state or any other state or territory, and, on the basis of W’s
testimony, which the court found to be credible, there was sufficient
evidence to find that the defendant had committed the crime of threaten-
ing in the second degree by threatening W with a weapon, or an item
resembling a weapon, and chasing him a significant distance, causing
him to experience what the court characterized as great and understand-
able fear, and irrespective of whether there were inconsistencies
between W’s testimony and other evidence in the record, determinations
of credibility are solely within the purview of the trial court.
3. The trial court did not abuse its discretion in revoking the defendant’s
probation; although that court, in revoking the defendant’s probation,
did not find that the defendant committed robbery or attempted robbery,
it did find that his actions in chasing W and threating W with a weapon,
or what appeared to be a weapon, were nonetheless ‘‘quite scary,’’ and
despite concluding that there were sufficient grounds to incarcerate the
defendant for the seven and one-half years remaining on his previous
sentence, the court decided in its discretion to suspend the sentence
after four years.
Argued January 2—officially released March 12, 2019
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of New Haven, where the court, Blue, J., denied
the defendant’s motion to suppress certain evidence;
thereafter, the matter was tried to the court; judgment
revoking the defendant’s probation, from which the
defendant appealed to this court. Affirmed.
Mary Boehlert, assigned counsel, for the appellant
(defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Brian K. Sibley, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Jose Ruiz, appeals
from the judgment of the trial court revoking his proba-
tion and imposing a sentence of seven and one-half
years incarceration, execution suspended after four
years, and three years of probation. On appeal, the
defendant claims that the trial court (1) improperly
denied his motion to suppress the one-on-one showup
identification on the ground that the identification pro-
cedure was not unnecessarily suggestive, (2) improp-
erly found that he violated his probation, and (3) abused
its discretion in revoking his probation. We are not
persuaded and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are neces-
sary for our resolution of this appeal. On July 13, 2012,
the defendant was convicted of three counts of assault
in the first degree in violation of General Statutes § 53a-
59 (a) (3) and one count of carrying a pistol without a
permit in violation of General Statutes § 29-35 (a), and
was sentenced to twelve years incarceration, execution
suspended after fifty-four months, and three years of
probation. The defendant was released from incarcera-
tion on June 12, 2014, and placed on probation. As a
condition of his probation, the defendant was not to
violate the criminal laws of the United States, the state
of Connecticut or any other state or territory.
On November 22, 2015, as a result of an incident at
a Dunkin’ Donuts in New Haven, the defendant was
arrested and charged with attempt to commit robbery
in the first degree in violation of General Statutes
§§ 53a-49 and 53a-134, threatening in the second degree
in violation of General Statutes § 53a-62 and breach
of peace in the second degree in violation of General
Statutes § 53a-181. Following the defendant’s arrest, his
probation officer, Ada Casanova, on December 3, 2015,
applied for an arrest warrant on the ground that the
defendant had violated a condition of his probation.
The next day, the application was granted and the arrest
warrant was issued. The defendant denied the violation
of probation charge and, on February 28, 2017, filed a
motion to suppress the one-on-one showup identifica-
tion that occurred shortly after the alleged incident
on the ground that the identification procedure was
unnecessarily suggestive.
On May 23, 2017, the court held a hearing on the
defendant’s motion to suppress. Following testimony
from one witness, Police Officer Jason Santiago, and
oral argument, the court concluded that although the
identification procedure used by the police was sugges-
tive, it was not ‘‘unnecessarily suggestive.’’ After the
court ruled on the defendant’s motion, the hearing on
the defendant’s violation of probation charge com-
menced.
During the violation of probation hearing, the court
heard testimony from three witnesses, Lawrence Welch,
Casanova, and the first assistant clerk for the judicial
district of New Haven, and also incorporated and con-
sidered Santiago’s testimony from the earlier hearing
on the motion to suppress. Following argument, the
court found that the state had proven, by a preponder-
ance of the evidence, that the defendant had violated
his probation when ‘‘he accosted . . . Welch at the
Dunkin’ Donuts . . . and threatened him in various
verbal ways and, at one point, displayed in a threatening
manner a . . . weapon with a black handle . . . and
chased . . . Welch a great distance . . . causing . . .
Welch a great and very understandable fear.’’ Although
the court concluded that there was insufficient evidence
to support a finding that the defendant had committed
robbery or attempted robbery, it determined that the
evidence was sufficient to support a finding that the
defendant had committed an act of threatening in the
second degree in violation § 53a-62 (a) (1). The court
revoked the defendant’s probation and sentenced him
to seven and one-half years incarceration, execution
suspended after four years, and three years of proba-
tion. This appeal followed. Additional facts will be set
forth as needed.
I
The defendant claims that the trial court improperly
denied his motion to suppress the one-on-one showup
identification because the identification procedure was
unnecessarily suggestive and unreliable. We conclude
that the identification procedure was not unnecessar-
ily suggestive.
We begin our analysis by setting forth our standard
of review. ‘‘The test for determining whether the state’s
use of an unnecessarily suggestive identification proce-
dure 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, funda-
mental fairness is the standard underlying due process,
and, consequently, reliability is the linchpin in determin-
ing the admissibility of identification testimony . . . .
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 sugges-
tive; and second, if it is found to have been so, it must be
determined whether the identification was nevertheless
reliable based on examination of the totality of the
circumstances. . . . Furthermore, [b]ecause the issue
of the reliability of an identification involves the consti-
tutional rights of an accused . . . we are obliged to
examine the record scrupulously to determine whether
the facts found are adequately supported by the evi-
dence 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.) State v. Harris,
330 Conn. 91, 101–102, 191 A.3d 119 (2018).1
The following additional facts are relevant to this
claim. During the hearing on the defendant’s motion to
suppress, Santiago stated that on November 22, 2015,
he was an officer with the New Haven Police Depart-
ment and that, at sometime between 6 a.m. and 6:30
a.m., he was dispatched to the area of 291 Ferry Street
in New Haven, following a report that a patron at a
Dunkin’ Donuts had been robbed. Santiago was
informed that the victim, Welch, had described the sus-
pect as a Hispanic male, with a tattoo under his eye,
wearing dark clothing. Upon his arrival at the Dunkin’
Donuts, Santiago entered the store with another officer
and saw the defendant ‘‘causing a disturbance.’’ After
the officers entered the store, the defendant went into
the bathroom, and the store employees indicated that
they wanted the individual removed from the premises.
Santiago knocked on the bathroom door and ordered
the defendant to come out, but he did not comply.
Santiago opened the door and saw the defendant ‘‘just
standing there.’’ Immediately, Santiago noticed that the
defendant was a Hispanic male, with a tattoo under
his eye, dressed in dark clothing. The defendant was
detained, handcuffed and placed in the back of one of
the police cruisers in the parking lot.2
After he had detained the defendant, Santiago went
to Welch’s home and took his statement. Welch told the
officer that ‘‘he was at Dunkin’ Donuts and somebody
attempted to rob him by indicating that [he] had a gun.’’
Welch also indicated in his statement that if he saw
the defendant again, he would be able to identify him.
Accordingly, Santiago and Welch went back to the Dun-
kin’ Donuts to conduct a one-on-one showup identifica-
tion of the defendant. When they arrived in the parking
lot, Santiago asked officers to remove the defendant
from the police cruiser to have him stand next to the
vehicle. Santiago then aimed the spotlight on his cruiser
directly at the defendant. The moment that Welch saw
the defendant, he stated ‘‘without a doubt . . . this is
the [individual] who tried to rob me at gunpoint.’’ Santi-
ago further testified that the identification of the defen-
dant occurred within approximately twenty minutes of
the officer’s initial arrival at the Dunkin’ Donuts and
approximately forty-five minutes after Welch first had
reported the incident to the police.
The defendant claims that the trial court improperly
found that the one-on-one showup identification proce-
dure was not unnecessarily suggestive because the
actions by the police in this instance served to convince
Welch that the defendant was the individual who had
accosted and chased him. Specifically, the defendant
contends that because he was detained in a police crui-
sier, in an area of the parking lot ‘‘away from any general
population,’’ Welch was presented with an initial
impression of the defendant as a criminal. Furthermore,
the defendant argues that because he was made to stand
next to a police cruiser, in handcuffs, flanked by police
officers, with a bright light shone on him, Welch was
compelled to identify him as the culprit.
A review of existing precedent reveals that our courts
have maintained, for some time, that an unnecessarily
suggestive identification procedure is one that ‘‘gives
rise to a very substantial likelihood of irreparable mis-
identification.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Marquez, 291 Conn. 122, 139,
967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237,
175 L. Ed. 2d 163 (2009). ‘‘[G]enerally a one-to-one con-
frontation between a [witness] and the suspect pre-
sented to him for identification is inherently and
significantly suggestive because it conveys the message
to the [witness] that the police believe the suspect is
guilty. . . . We also have recognized, however, that the
existence of exigencies may preclude such a procedure
from being unnecessarily suggestive. . . .
‘‘In the past, when we have been faced with the ques-
tion of whether an exigency existed, we have consid-
ered such factors as whether the defendant was in
custody, the availability of the victim, the practicality
of alternate procedures and the need of police to deter-
mine quickly if they are on the wrong trail. . . . We
have also considered whether the identification proce-
dure provided the victim with an opportunity to identify
his assailant while his memory of the incident was still
fresh.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Revels, 313 Conn. 762, 772–73, 99 A.3d
1130 (2014), cert. denied, U.S. , 135 S. Ct. 1451,
191 L. Ed. 2d 404 (2015).
Here, Welch reported the incident within moments
of when it occurred, and the defendant was appre-
hended by the police shortly after they responded to
the call. Moreover, prior to the showup identification,
Welch had provided the police with an accurate descrip-
tion of the defendant, indicating that the suspect was
a Hispanic male, with a tattoo under his eye, wearing
dark clothing. Upon communicating to Santiago that
he could identify the individual responsible if given the
opportunity, Welch was brought back to the Dunkin’
Donuts within forty-five minutes to an hour of when
he first reported the incident. Once Welch viewed the
defendant, he immediately stated with certainty that
this was the individual who had ‘‘tried to rob [him] at
gunpoint.’’ Although the actions by the police in this
instance were to some degree suggestive, this court in
addressing similar facts has held that such actions do
not constitute a due process violation. See, e.g., State
v. Dakers, 155 Conn. App. 107, 115, 112 A.3d 819 (2015)
(presence of police, even with defendant in handcuffs, is
not unnecessarily suggestive). Further, given the small
amount of time that elapsed between when the incident
occurred and when the one-on-one showup identifica-
tion was conducted, we conclude that the identification
procedure was not unnecessarily suggestive inasmuch
as there was an exigency to provide Welch with an
opportunity to identify the defendant while his memory
of the incident was still fresh and to assist the police in
determining whether they had apprehended the correct
individual. See, e.g., State v. Aviles, 154 Conn. App.
470, 481, 106 A.3d 309 (2014) (showup identification
procedure not unnecessarily suggestive when identifi-
cation made shortly after robbery), cert. denied, 316
Conn. 903, 111 A.3d 471 (2015); State v. Sparks, 39 Conn.
App. 502, 510, 664 A.2d 1185 (1995) (same); see also
State v. Smith, 105 Conn. App. 278, 297 n.5, 937 A.2d
1194 (showup identification forty-five minutes to one
hour after incident may not have been unnecessarily
suggestive on basis of exigent circumstances), cert.
denied, 286 Conn. 909, 944 A.2d 980 (2008). Thus, the
court did not err in denying the defendant’s motion to
suppress the one-on-one showup identification on the
ground that the identification procedure was not unnec-
essarily suggestive.3
II
The defendant next claims that the court improperly
found that he violated a condition of his probation
because there was insufficient evidence to support the
finding that he committed an act of threatening in the
second degree in violation of § 53a-62 (a) (1). Specifi-
cally, the defendant argues that this finding was predi-
cated entirely on Welch’s testimony, which the court
erred in crediting because it was inconsistent with other
evidence in the record. We are not convinced.
We first set forth our well settled standard of review.
‘‘This court may reverse the trial court’s initial factual
determination that a condition of probation has been
violated only if we determine that such a finding was
clearly erroneous. . . . A finding of fact is clearly erro-
neous when there is no evidence to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
State v. Megos, 176 Conn. App. 133, 140–41, 170 A.3d
120 (2017).
The following additional facts are relevant to this
claim. During the violation of probation hearing, Welch
testified that, on November 22, 2015, he was at a Dunkin’
Donuts in New Haven, sitting at a table and drinking a
coffee, when the defendant, who was sitting at a nearby
table, made him ‘‘feel uncomfortable.’’ Welch stood up
and went to exit the store. The defendant followed
him and cut him off at the door. The defendant then
approached Welch, made him feel uneasy and threat-
ened him. When asked to explain what happened next,
Welch stated: ‘‘So, what happened next is he threatened
me and I didn’t take kindly to that. So I—he lunged at
me and when I went to approach to defend myself, he
jumped back and lifted up his shirt, and I saw a black
handle in his waist, and he says we can do this right,
let’s not do it here, let’s go over here.’’ Welch backed
his way out of the Dunkin’ Donuts into the parking lot,
and the defendant continued to follow him. At some
point, two bystanders yelled at the defendant to stop.
He turned around and told one of them to be quiet.
While the defendant was turned around, Welch took
off running. The defendant chased after him until Welch
reached a police barracks substation and was able to
hide behind a brick wall. When Welch no longer saw
the defendant following him, he ran back to his resi-
dence and called the police. Welch testified that he told
the police that an individual had confronted him at a
Dunkin’ Donuts and then chased after him through the
parking lot and nearby streets. He could not remember
whether he had told the police that the individual had
attempted to rob him. After he called the police, an
officer responded to his home within approximately
one-half hour. Welch provided a statement to the offi-
cer, and together they went back to the Dunkin’ Donuts
to ascertain whether Welch could identify an appre-
hended individual as the same person who had threat-
ened and chased him earlier that morning.4
In examining this evidence adduced during the viola-
tion of probation hearing, we cannot conclude that the
trial court’s finding that the defendant violated a condi-
tion of his probation was clearly erroneous. As stated
previously in this opinion, a condition of the defendant’s
probation was that he not violate any of the criminal
laws of the United States, this state, or any other state
or territory. Pursuant to § 53a-62 (a) (1), ‘‘[a] person is
guilty of threatening in the second degree when . . .
[b]y physical threat, such person intentionally places
or attempts to place another person in fear of imminent
serious physical injury . . . .’’ On the basis of Welch’s
testimony, which the court found to be credible, there
was sufficient evidence to find that the defendant
threatened Welch with a weapon, or an item resembling
a weapon, and chased him a significant distance, caus-
ing Welch to experience ‘‘a great and understandable
fear.’’ Irrespective of whether there were inconsisten-
cies between Welch’s testimony and other evidence in
the record,5 determinations of credibility are solely
within the purview of the trial court. See State v.
D’Haity, 99 Conn. App. 375, 381–82, 914 A.2d 570 (‘‘[w]e
must defer to the trier of fact’s assessment of the credi-
bility of [a witness] that is made on the basis of its
firsthand observation of [his] conduct, demeanor and
attitude’’ [internal quotation marks omitted]), cert.
denied, 282 Conn. 912, 924 A.2d 137 (2007). We con-
clude, therefore, that the court did not improperly find
that the defendant violated his probation by committing
an act of threatening in the second degree in violation
of § 53a-62 (a) (1).
III
Finally, the defendant claims that the trial court
abused its discretion in revoking his probation because
he was amenable to rehabilitation and did not pose a
threat to public safety. We do not agree.
‘‘If a violation [of a condition of probation] is found,
a court must next determine whether probation should
be revoked because the beneficial aspects of probation
are no longer being served. . . . As a general matter,
a trial court possesses, within statutorily prescribed
limits, broad discretion in sentencing matters in revoca-
tion of probation hearings. . . . On appeal, we will dis-
turb a trial court’s sentencing decision only if that
discretion clearly has been abused.’’ (Citations omitted;
internal quotation marks omitted.) State v. Shakir, 130
Conn. App. 458, 469–70, 22 A.3d 1285, cert. denied, 302
Conn. 931, 28 A.3d 345 (2011).
In revoking the defendant’s probation, the court
noted that although it could not find that the defendant
committed robbery or attempted robbery, his actions
were nonetheless ‘‘quite scary.’’ The court then repeated
its finding that the defendant not only chased Welch,
but threatened him with a weapon, or at the very least
with an item that appeared to be a weapon. Additionally,
despite concluding that there were sufficient grounds
to incarcerate the defendant for the seven and one-half
years remaining on his previous sentence, the court
decided in its discretion to suspend the sentence after
four years.6 In light of the court’s factual findings and
its consideration of the entire record, we conclude that
the court did not abuse its discretion in revoking the
defendant’s probation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Furthermore, we note that it remains an unresolved question whether the
due process protection against an unduly suggestive identification procedure
applies in a violation of probation proceeding. See State v. Daniels, 248
Conn. 64, 80 n.16, 726 A.2d 520 (1999), overruled in part on other grounds
by State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005). We need not, however,
decide that issue in this case, as it was not a basis for the court’s denial of
the motion to suppress and neither party has addressed it on appeal. See
State v. Bouteiller, 112 Conn. App. 40, 45 n.4, 961 A.2d 995 (2009).
2
The defendant was patted down for weapons, given that the initial com-
plaint indicated that a robbery had occurred. No weapons, however, were
located on the defendant’s person or in the vicinity of the Dunkin’ Donuts.
3
Because we conclude that the identification procedure was not unneces-
sarily suggestive, we do not reach the issue of reliability. See State v. Outing,
298 Conn. 34, 55, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct.
1479, 179 L. Ed. 2d 316 (2011).
4
Welch identified the officer that responded to his home as the same
officer, Santiago, who had testified during the motion to suppress hearing.
He also identified, in court, the defendant as the individual that he identified
to officers on November 22, 2015.
5
The defendant argues that Welch’s testimony conflicted with his initial
statement to the police insofar as he told officers that he had been robbed
but later testified that he was not robbed and, instead, only felt threatened.
Moreover, the defendant contends that Welch’s description of him to the
police was inaccurate because he stated that the defendant had a tattoo of
a ‘‘tear drop’’ under his eye, when, in fact, the defendant’s tattoo is of a
‘‘musical note.’’
6
In deciding to afford the defendant a future opportunity of probation,
the court stated that it agreed with Casanova’s opinion that, although the
defendant should be required to serve a period of incarceration given the
seriousness of the offenses at issue, he should also be given a chance to
resume probation with certain additional conditions.