State v. Berthiaume

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STATE OF CONNECTICUT v. TOBY
ARTHUR BERTHIAUME
(AC 37913)
DiPentima, C. J., and Keller and Flynn, Js.
Argued October 6, 2016—officially released March 14, 2017
(Appeal from Superior Court, judicial district of
Hartford, Mullarkey, J.)
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Toni M. Smith-Rosario, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, Vicki Melchiorri, supervisory assistant
state’s attorney, David L. Zagaja, senior assistant
state’s attorney, and Thomas R. Garcia, former senior
assistant state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Toby Arthur Berthiaume,
appeals from the judgment of conviction, rendered after
a jury trial, of burglary in the first degree in violation
of General Statutes § 53a-101 (a) (2). On appeal, the
defendant claims (1) there was insufficient evidence to
convict him of burglary in the first degree, and (2)
even if there were sufficient evidence to sustain his
conviction, the trial court committed plain error by
failing to exclude evidence of an eyewitness identifica-
tion of the defendant. Unpersuaded by either claim, we
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In mid-2013, the victim, Simone LaPointe, was
ninety-three years old and resided at 126 Windsor Street
in Enfield, her home for over four decades. She suffered
from dementia and short term memory loss, and
although she lived alone, was accompanied by either a
friend or one of her surviving eleven children ‘‘most of
the time.’’ Typically, the victim’s friend stayed with her
overnight, and her children took turns visiting her
throughout the day. Despite this visitation schedule,
there were gaps of time throughout the day in which
the victim was home alone. Because the victim neither
drove nor owned a car, her driveway would be empty
during these gap periods, thus indicating that she
was alone.
On May 6, 2013, Marita Cunningham, one of the vic-
tim’s daughters, arrived at 126 Windsor Street around
noon, and departed, leaving the victim home alone, at
approximately 12:50 p.m. When Cunningham left 126
Windsor Street, nothing inside the residence looked out
of order and the victim was uninjured. About one hour
later, Jessica Navarro-Gilmore, while passing by in a
motor vehicle, saw the defendant and another white
man ‘‘walking suspiciously’’ on a road near the victim’s
home while carrying what appeared to be ‘‘a twenty
inch flat screen . . . TV or monitor . . . .’’ The two
men were ‘‘walking quickly and looking over their shoul-
der[s] suspiciously.’’ Drawing on her own experience
committing theft offenses, Navarro-Gilmore immedi-
ately suspected that the two men had stolen something
from a home in the neighborhood.1 After doubling back
to get a better look at the men, Navarro-Gilmore called
the police at 1:53 p.m. and reported what she had seen.
At approximately 3 p.m., the victim called Norma
Shannon, another of her daughters, and told Shannon
that her knee was bleeding. Shannon went to 126 Wind-
sor Street in response to the call, and upon entering,
noticed that ‘‘the house had been ransacked . . . .’’
Various drawers and cabinets inside the house had been
left open, jewelry and other items were lying on the
victim’s bed and dresser ‘‘as if they had been dumped
there,’’ and the dining room chandelier was broken.
There was blood on the floor of the dining room, and
the phone line in the living room, which was adjacent
to the dining room, had been cut. The victim’s knee
was bandaged, and she had sustained a ‘‘mark on her
nose,’’ a bruise on her face, and a chipped tooth. A
search of the home revealed that the victim’s ring, which
contained fourteen birthstones, and her nineteen inch
flat screen television, had been stolen.
At 3:44 p.m., the defendant sold what was later deter-
mined to be the victim’s ring and television at the Money
Shop, a pawn shop and jewelry store located in Spring-
field, Massachusetts. In order to make the sales, the
defendant provided Jeffrey Fiske, the owner of the
pawn shop, with his identification and had his photo-
graph taken. The defendant also provided his address,
116 Windsor Street, and telephone number. Fiske identi-
fied the defendant as the person who received the
sales proceeds.
Thereafter, police showed Navarro-Gilmore a sequen-
tial photographic array that did not include a photo-
graph of the defendant, and she did not identify anyone
as one of the men she saw carrying the television on May
6, 2013. After developing the defendant as a suspect,
Detective Brian Callaghan of the Enfield Police Depart-
ment searched the New England State Police Informa-
tion Network, a database wherein local pawn shops
record their daily transactions, which returned informa-
tion on the Money Shop. On June 11, 2013, Fiske pro-
vided Detective Callaghan with sales slips, the
defendant’s photograph, and the victim’s television
and ring.2
The defendant was arrested on July 3, 2013, and
charged with burglary in the first degree and several
other offenses.3 Two days later, the defendant’s booking
photograph, along with an article referencing the bur-
glary, was published in the Enfield Patch, a local online
newspaper. While browsing online, Navarro-Gilmore
saw the defendant’s photograph and immediately recog-
nized him as one of the men she saw carrying the televi-
sion on May 6, 2013. Thereafter, Detective Callaghan
contacted Navarro-Gilmore to request that she view
another photographic array. Navarro-Gilmore indicated
that she already had seen the defendant’s photograph
in the Enfield Patch and therefore could not fairly par-
ticipate in an identification procedure.
On April 7, 2014, following a trial, the jury found the
defendant guilty of burglary in the first degree. The
court imposed a total effective sentence of twenty years
incarceration. This appeal followed. Additional facts
and procedural history will be set forth where necessary
to the resolution of the defendant’s claims.
I
The defendant first claims that there was insufficient
evidence to convict him of burglary in the first degree.
Specifically, he argues that the state failed to adduce
evidence from which the jury reasonably could have
concluded beyond a reasonable doubt that he remained
unlawfully inside the victim’s home with the intent to
commit a crime therein, or that he had knowingly or
recklessly inflicted bodily injury on the victim. Addition-
ally, the defendant contends there was insufficient evi-
dence that he was the person who injured the victim
while remaining unlawfully inside her residence
because Navarro-Gilmore’s testimony revealed the
presence of a second, unidentified white man who was
seen on a nearby street and could have injured the
victim. We disagree with both contentions.
The following principles guide our resolution of the
defendant’s sufficiency of the evidence claim. ‘‘Unlike
Aristotelian and Thomistic logic, law does not demand
metaphysical certainty in its proofs. In law, we recog-
nize three principal proofs: beyond a reasonable doubt,
which is the very high burden in a criminal case; clear
and convincing evidence, required to prove fraud and
certain other claims, which equates to a very high proba-
bility; and preponderance of the evidence, applied to
civil claims generally, which means it is more probable
than not. None of these varying proofs require absolute
certainty.’’ (Footnote omitted.) Curran v. Kroll, 118
Conn. App. 401, 408, 984 A.2d 763 (2009), aff’d, 303
Conn. 845, 37 A.3d 700 (2012).
‘‘To meet one’s burden of proof, evidence is neces-
sary. This evidence comes in two forms, direct and
circumstantial. ‘The basic distinction between direct
and circumstantial evidence is that in the former
instance the witnesses testify directly of their own
knowledge as to the main facts to be proved, while in
the latter case proof is given of facts and circumstances
from which the jury may infer other connected facts
which reasonably follow, according to common experi-
ence.’ 29 Am. Jur. 2d 329, Evidence § 313 (1994). ‘Proof
of a fact by the use of circumstantial evidence usually
involves a two-step process. A fact is first established
by direct evidence, which is ordinarily eyewitness or
other direct testimony. That direct evidence can serve
as a basis from which the jury infers another fact. Thus,
the direct evidence may operate as circumstantial evi-
dence from which a fact is inferred by the jury.’ State
v. Sullivan, 11 Conn. App. 80, 97, 525 A.2d 1353 (1987),
citing State v. Rome, 64 Conn. 329, 334, 30 A. 57 (1894).
‘When the necessity to resort to circumstantial evidence
arises either from the nature of the inquiry or the failure
of direct proof, considerable latitude is allowed in its
reception.’ 29 Am. Jur. 2d 331, Evidence § 315 (2008).
‘‘ ‘An inference is a factual conclusion that can ratio-
nally be drawn from other facts. If fact A rationally
supports the conclusion that fact B is also true, then
B may be inferred from A. The process of drawing
inferences based on a rough assessment of probabilities
is what makes indirect or circumstantial evidence rele-
vant at trial. If the inference (fact B from fact A) is
strong enough, then fact A is relevant to prove fact B.
Inferences are by their nature permissive, not manda-
tory: although the fact proved rationally supports the
conclusion the offering party hopes will be inferred,
the factfinder is free to accept or reject the inference.’
. . . 1 C. Fishman, Jones on Evidence (1992) § 4:1, pp.
299–300; see also D. Faulkner & S. Graves, Connecticut
Trial Evidence Notebook (2d Ed. 2008 Rev.) I-14.’’
(Emphasis in original.) Curran v. Kroll, supra, 118
Conn. App. 409–10.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [trier of fact] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . In evaluating evi-
dence, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier may draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . This does not require that each subordi-
nate conclusion established by or inferred from the
evidence, or even from other inferences, be proved
beyond a reasonable doubt . . . because this court has
held that a [trier’s] factual inferences that support a
guilty verdict need only be reasonable. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal. . . . On
appeal, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
[trier’s] verdict of guilty. . . . Furthermore, [i]n [our]
process of review, it does not diminish the probative
force of the evidence that it consists, in whole or in
part, of evidence that is circumstantial rather than
direct. . . . It is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence.’’ (Inter-
nal quotation marks omitted.) State v. Butler, 296 Conn.
62, 76–77, 993 A.2d 970 (2010).
‘‘[P]roof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
the evidence; rather, the evidence need only be reason-
ably susceptible of such an inference. Equally well
established is our holding that a jury may draw factual
inferences on the basis of already inferred facts. . . .
Moreover, [i]n viewing evidence which could yield con-
trary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence.’’ (Citations omitted; internal quotation
marks omitted.) State v. Copas, 252 Conn. 318, 339–40,
746 A.2d 761 (2000).
‘‘Review of any claim of insufficiency of the evidence
introduced to prove a violation of a criminal statute
must necessarily begin with the skeletal requirements
of what necessary elements the charged statute requires
to be proved.’’ State v. Pommer, 110 Conn. App. 608,
613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d
418 (2008). ‘‘Once analysis is complete as to what the
particular statute requires to be proved, we then review
the evidence in light of those statutory requirements.
Our review standard is well settled.’’ Id.A person is guilty of the crime of burglary in the
first degree when he ‘‘enters or remains unlawfully in
a building with intent to commit a crime therein and,
in the course of committing the offense, intentionally,
knowingly or recklessly inflicts or attempts to inflict
bodily injury on anyone . . . .’’ General Statutes § 53a-
101 (a) (2).
In the present case, the defendant correctly points out
the lack of direct evidence—in the form of fingerprints,
DNA or eyewitness testimony—establishing his pres-
ence inside the victim’s home. Nevertheless, we con-
clude that the state introduced sufficient circumstantial
evidence upon which the jury reasonably could have
found not only that the defendant was present in the
victim’s home, but also that each element of the crime
of burglary in the first degree had been proven beyond
a reasonable doubt. As an initial matter, we note that
the defendant was photographed selling the victim’s
stolen ring and television at a pawn shop shortly after
the items were discovered to be stolen. From that evi-
dence, the jury reasonably could have inferred not just
that the defendant had received or was in possession
of the stolen items, as the defendant argues, but that
he was the person who stole them. See State v. Higgins,
201 Conn. 462, 473, 518 A.2d 631 (1986) (‘‘[t]he posses-
sion of property recently stolen, if unexplained and
standing alone or without other facts pointing to a con-
trary conclusion, [supports the] inference that the pos-
sessor stole the property’’ [internal quotation marks
omitted]). Because the victim’s television and ring were
located inside the victim’s home and the defendant later
possessed and sold these stolen items, it was reasonable
for the jury to conclude that the defendant entered into
the victim’s home in order to steal them.
Proceeding from that premise, we address the
remainder of the evidence that, in our view, established
a strong circumstantial case against the defendant. Cun-
ningham testified that she had visited the victim around
noon on May 6, 2013, at which time the home was intact
and the victim was uninjured, and that she left the
victim home alone at approximately 12:50 p.m. The
defendant, who lived only a few houses away from the
victim at 116 Windsor Street, was in a position to know
that the victim was alone and thus vulnerable because
he could see that no cars were in her driveway. One hour
after Cunningham left, at around 1:53 p.m., Navarro-
Gilmore saw the defendant and a second white man
‘‘walking suspiciously,’’ as if they had stolen something,
down a nearby street while carrying a flat screen televi-
sion or monitor. Shortly thereafter, the victim called
Shannon, her daughter, and told Shannon that her knee
was bleeding. Shannon arrived at the victim’s residence
to find it in a state of disarray. Items had been hastily
‘‘dumped’’ out, various drawers and cabinets were open,
and a crystal from the dining room chandelier had fallen
to the floor, suggesting that someone had ransacked
the home in search of valuables. The victim’s television
and ring had been stolen. There was blood on the dining
room floor, and the victim had sustained a bloody knee,
chipped tooth, and bruised face, all signs that a struggle
had taken place. All of this evidence, in combination
with the defendant’s sale of the victim’s stolen ring and
television shortly thereafter, supports the inference that
the defendant remained unlawfully in the victim’s home
with the intent to commit a crime therein, namely, lar-
ceny. See, e.g., State v. Cote, 136 Conn. App. 427, 445–46,
46 A.3d 256 (2012) (‘‘[i]n sustaining [burglary] convic-
tions based entirely on circumstantial evidence, this
court has relied on evidence that the defendant was at
or near the residence at about the time of the burglary
and that the defendant was in possession of items stolen
from the residence thereafter’’ [internal quotation
marks omitted]), aff’d, 314 Conn. 570, 107 A.3d 367(2014).
We note that although there were no signs of a forced
entry, the jury nevertheless could have concluded that
the defendant ‘‘remain[ed] unlawfully’’ in the victim’s
residence.4 General Statutes § 53a-101 (a) (2). ‘‘A person
‘enters or remains unlawfully’ in or upon premises when
the premises, at the time of such entry or remaining,
are not open to the public and when the actor is not
otherwise licensed or privileged to do so.’’ General Stat-
utes § 53a-100 (b). Even if the victim had consented to
the defendant’s initial entry into her home, the jury
reasonably could have inferred from the victim’s injur-
ies and other signs that a physical altercation took
place, as well as from the fact that the victim’s television
and ring had been stolen, that the defendant exceeded
the scope of that consent by assaulting5 the victim and
stealing her items, thus rendering his continued
‘‘remaining’’ inside her residence unlawful. See State v.
Bharrat, 129 Conn. App. 1, 26–27, 20 A.3d 9 (finding
sufficient evidence that defendant ‘‘unlawfully
remained’’ in victim’s home because although victim
consented to defendant spending night, ‘‘defendant’s
remaining in the premises became unlawful because he
had exceeded the scope of the victim’s consent’’ by
engaging in criminal activity), cert. denied, 302 Conn.
905, 23 A.3d 1243 (2011); State v. Gelormino, 24 Conn.
App. 563, 572, 590 A.2d 480 (defendant’s remaining in
victim’s residence was unlawful because ‘‘even if the
evidence could be construed to show the victim’s
implicit consent to the defendant’s entry, the vicious
assault perpetrated on the victim was clearly not within
the scope of that consent’’), cert. denied, 219 Conn. 911,
593 A.2d 136 (1991).
Finally, we must determine whether there was suffi-
cient evidence to support the jury’s finding that the
defendant, in the course of committing the burglary,
‘‘knowingly or recklessly inflict[ed] . . . bodily injury’’
on the victim. General Statutes § 53a-101 (a) (2). As
previously noted, the state adduced evidence that the
victim was uninjured as of 12:50 p.m., and that by at
least 3 p.m. had sustained a bloody injury to her knee,
a mark on her nose, a bruise on her face, and a chipped
tooth. During that same time period, around 1:53 p.m.,
the defendant was observed ‘‘walking suspiciously’’
with a second man away from the victim’s residence
with what appeared to be a television, and was photo-
graphed selling the victim’s stolen items approximately
two hours later in Springfield, Massachusetts. The chan-
delier in the victim’s dining room was broken, there
was blood on the floor, and the telephone cord in the
adjacent room was cut. Cunningham testified that
despite the victim’s advanced age, she was a ‘‘feisty
individual’’ who would ‘‘try to stand up for herself and
. . . fight back’’ if someone tried to ‘‘push their way’’
into her home. From this evidence, the jury reasonably
could have concluded that the victim resisted the defen-
dant’s attempts to burglarize her home, prompting the
defendant to physically assault the victim and to cut
the telephone wire to prevent her from contacting help.6
Despite this evidence and authority, the defendant
argues that there was insufficient evidence that he
inflicted bodily harm on the victim because Navarro-
Gilmore testified that, when she saw the defendant
walking down a nearby street with the television, he
was accompanied by a second, suspicious looking white
man. We are not persuaded that Navarro-Gilmore’s tes-
timony regarding the presence of a second white man
on the street renders the evidence insufficient as a
matter of law. Essentially, the defendant’s argument is
that the jury could have inferred that the second man
had been inside the victim’s residence and had partici-
pated in the burglary, and, thus, could have been the
person who inflicted bodily injury on the victim. In
determining whether there was sufficient evidence to
sustain a conviction, however, ‘‘the trier of fact [in eval-
uating evidence] is not required to accept as dispositive
those inferences that are consistent with the defen-
dant’s innocence. . . . The trier may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) State v. Butler,
supra, 296 Conn. 76. Thus, ‘‘[o]n appeal, we do not ask
whether there is a reasonable view of the evidence that
would support a reasonable hypothesis of innocence.
We ask, instead, whether there is a reasonable view of
the evidence that supports the [trier’s] verdict of guilty.’’
(Internal quotation marks omitted.) Id., 77.
In view of that principle, the jury was not required
to infer that the second man had been present inside
the victim’s home during the burglary, much less that
he, and he alone, inflicted bodily harm on the victim.7
The defendant’s argument is essentially one of third-
party culpability and there was no evidence presented
at trial concerning the identity of the second man or
his alleged role, if any, in the burglary.8 Cf. State v.
Arroyo, 284 Conn. 597, 610, 935 A.2d 975 (2007) (noting,
for purposes of third-party liability jury instruction, that
‘‘[e]vidence that would raise only a bare suspicion that
a third party, rather than the defendant, committed the
charged offense would not be relevant to the jury’s
determination’’).9 The defendant, on the other hand,
was established to have lived a few houses away from
the victim and thus to have been in a position to know
that the victim was home alone. Additionally, after
Navarro-Gilmore saw the defendant and a second man
leaving the victim’s neighborhood, the defendant trav-
eled to Springfield, Massachusetts, and sold the victim’s
items for $355, which bespeaks a principal role in the
crime. See State v. Rivera, 39 Conn. App. 96, 104, 664
A.2d 306 (‘‘possession of recently stolen property raises
a permissible inference of criminal connection with
the property, and if no explanation is forthcoming, the
inference of criminal connection may be as a principal
in the theft’’ [internal quotation marks omitted]), cert.
denied, 235 Conn. 921, 665 A.2d 908 (1995). There was
no evidence that the second man accompanied the
defendant on this trip or shared in the proceeds of the
crime. Finally, the jury could have inferred that the
defendant, rather than the second man, was the one
Navarro-Gilmore saw carrying the television away from
the victim’s residence.10 Given the defendant’s connec-
tion to the victim’s residence, the evidence that he was
seen leaving the neighborhood carrying the victim’s
stolen television, and the fact that he was photographed
reaping the benefits of the crime, we cannot conclude
that there did not exist a reasonable view of the evi-
dence to support the jury’s finding that the defendant
knowingly or recklessly inflicted bodily injury on the
victim in the course of burglarizing her home. Accord-
ingly, we conclude that the state adduced sufficient
evidence to sustain the defendant’s conviction for bur-
glary in the first degree.
II
The defendant next claims that his conviction should
be reversed because the court improperly failed to
exclude, under State v. Holliman, 214 Conn. 38, 570
A.2d 680 (1990), evidence of Navarro-Gilmore’s identifi-
cation of him as one of the individuals she saw walking
away from the victim’s home immediately after the bur-
glary. The defendant contends that even though
Navarro-Gilmore was a private actor, her conduct in
identifying the defendant was unduly suggestive and
such unreliable identifications must be suppressed even
in the absence of state action. As the defendant
acknowledges, however, the rule established in Holli-
man for the exclusion of identifications tainted by
unduly suggestive private conduct is purely evidentiary,
and he did not object in the trial court to the admission
of Navarro-Gilmore’s identification on evidentiary
grounds. Accordingly, the defendant seeks review of
this unpreserved evidentiary claim under the plain error
doctrine.11 We disagree that the court committed plain
error by failing to exclude Navarro-Gilmore’s identifi-
cation.
The following additional facts and procedural history
are relevant to this claim. On March 14, 2014, the defen-
dant moved to suppress ‘‘any and all in-court or out-
of-court identifications of [him] . . . because said
identifications were obtained in violation of [his]
rights.’’ In support of his argument, the defendant relied
on various state and federal constitutional provisions,
as well as the United States Supreme Court’s decision
in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243,
53 L. Ed. 2d 140 (1977), but he neither cited to State
v. Holliman, supra, 214 Conn. 38, nor mentioned any
evidentiary grounds for exclusion. The court held a
hearing on April 2, 2014, at which Detective Callaghan
was the sole witness. Detective Callaghan testified that
he called Navarro-Gilmore to arrange for her to view
a second photographic array but, before he could men-
tion specifics, Navarro-Gilmore stated that she had
already seen the defendant’s photograph in the Enfield
Patch and recognized him as the person she saw on May
6, 2013. During argument on the motion, the defendant
again did not raise Holliman or any evidentiary bases
for exclusion of Navarro-Gilmore’s identification.
Instead, his argument focused entirely on the issue of
whether the identification was procured through state
action. Doubting that state actors were involved in the
identification, the court permitted the defendant to
elicit additional testimony from Navarro-Gilmore out-
side the presence of the jury on April 4, 2014. Although
the court did not issue a ruling at the conclusion of
Navarro-Gilmore’s additional testimony, it permitted
her to testify before the jury as to her identification
of the defendant. The defendant did not object to the
identification. The court subsequently issued a memo-
randum of decision dated April 8, 2014, denying the
motion to suppress because ‘‘[t]here was no police or
governmental action involved in the identification.’’
It is well settled that ‘‘[d]ue process requires that
[eyewitness] identifications [may be admitted at trial]
only if they are reliable and are not the product of
unnecessarily suggestive police procedures.’’ (Internal
quotation marks omitted.) State v. Johnson, 312 Conn.
687, 696, 94 A.3d 1173 (2014). In State v. Holliman,
supra, 214 Conn. 45–46, our Supreme Court held that,
in the absence of state action, unnecessarily suggestive
identification procedures conducted solely by private
actors do not implicate the defendant’s federal due pro-
cess rights. Nevertheless, the court in Holliman also
held that, as an evidentiary matter, ‘‘the criteria estab-
lished for determining the admissibility of identifica-
tions in the due process context are appropriate
guidelines by which to determine the admissibility of
identifications that result from procedures conduct by
civilians.’’ Id., 46. Thus, to determine whether eyewit-
ness identifications resulting from procedures under-
taken by private actors are inadmissible as a matter of
evidentiary law, the court must first determine
‘‘whether the identification procedure was unnecessar-
ily suggestive, and second, if it is found to be so . . .
whether the identification was nevertheless reliable
based on an examination of the totality of the circum-
stances.’’12 (Internal quotation marks omitted.) Id.
In the present case, the defendant does not contest
the court’s finding that Navarro-Gilmore’s identification
did not violate his due process rights because it did not
involve state action. Thus, the defendant’s claim that the
identification was tainted by unduly suggestive private
conduct is purely evidentiary, and is unreviewable
because it was not raised in the suppression hearing
or at trial. See State v. Johnson, supra, 312 Conn. 705n.19 (‘‘[i]t is clear . . . that the defendant’s claim that
the victim’s identification of the defendant was inadmis-
sible because it involved unduly suggestive private con-
duct . . . is unreviewable because, in the absence of
improper state action, any such claim is evidentiary and
was not preserved’’ [citation omitted]). Conceding that
his claim under Holliman is unreviewable, the defen-
dant seeks relief under the plain error doctrine. We
disagree that the court’s admission of Navarro-Gil-
more’s identification of the defendant constituted
plain error.
The plain error doctrine ‘‘is an extraordinary remedy
used by appellate courts to rectify errors committed at
trial that, although unpreserved, are of such monumen-
tal proportion that they threaten to erode our system
of justice and work a serious and manifest injustice on
the aggrieved party. [T]he plain error doctrine . . . is
not . . . a rule of reviewability. It is a rule of reversibil-
ity. That is, it is a doctrine that this court invokes in
order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s
judgment, for reasons of policy. . . . In addition, the
plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so
obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings. . . .
Plain error is a doctrine that should be invoked spar-
ingly.’’ (Internal quotation marks omitted.) State v. San-
chez, 308 Conn. 64, 76–77, 60 A.3d 271 (2013).
Our review of claims of plain error involves a two
step process. ‘‘First, we must determine whether the
trial court in fact committed an error and, if it did,
whether that error was indeed plain in the sense that
it is patent [or] readily discernable on the face of a
factually adequate record, [and] also . . . obvious in
the sense of not debatable.’’ (Emphasis in original; inter-
nal quotation marks omitted.) State v. Coward, 292
Conn. 296, 307, 972 A.2d 691 (2009). Under this standard,
‘‘it is not enough for the defendant simply to demon-
strate that his position is correct. Rather, the party
seeking plain error review must demonstrate that the
claimed impropriety was so clear, obvious and indisput-
able as to warrant the extraordinary remedy of rever-
sal.’’ Id. Furthermore, ‘‘although a clear and obvious
mistake on the part of the trial court is a prerequisite for
reversal under the plain error doctrine, such a finding is
not, without more, sufficient to warrant the application
of the doctrine. Because [a] party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice . . .
under the second prong of the analysis we must deter-
mine whether the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust. . . . Only if both prongs of the analysis are
satisfied can the appealing party obtain relief.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.With the Holliman standard in mind, we conclude,
on the basis of the totality of the evidence introduced
at trial, that the defendant’s claim fails the first prong
of the plain error analysis. That is, the defendant has
failed to establish that the court, in admitting Navarro-
Gilmore’s identification, committed an error that was
‘‘so clear, obvious and indisputable as to warrant the
extraordinary remedy of reversal.’’ Id. Navarro-Gilmore
testified that she fortuitously happened upon the defen-
dant’s booking photograph while perusing the Enfield
Patch, and immediately recognized him as one of the
men she saw on May 6, 2013, carrying the victim’s televi-
sion. While the photograph was accompanied by an
article detailing the location of and circumstances sur-
rounding the burglary, Navarro-Gilmore testified that
her recognition occurred instantaneously when she saw
the photograph and was not at all based upon the article.
She further testified that she declined Detective Cal-
laghan’s invitation to view a photographic array
because, having already seen the defendant’s photo-
graph, ‘‘it would not [have] be[en] fair’’ for her to view
a photographic array. Given that evidence, it was not
plain error for the trial court to have concluded that the
identification was not the product of unduly suggestive
private conduct by Navarro-Gilmore and, thus, admissi-
ble under Holliman.
The judgment is affirmed.
In this opinion DiPENTIMA, C. J., concurred.
1
At the time she testified at trial, Navarro-Gilmore had three convictions
for larceny in the sixth degree and a fourth larceny charge that was pending.
2
Detective Callaghan determined that the television stolen from the vic-
tim’s home and the one the defendant sold at the pawn shop had the same
serial number. The ring sold by the defendant contained fourteen stones,
matching the description of the ring that was stolen.
3
When the defendant’s trial began, the defendant also was charged, by
an amended information dated April 2, 2014, with being an accessory to
burglary in the first degree in violation of General Statutes §§ 53a-8 and 53a-
101 (a) (2), and with conspiracy to commit burglary in the third degree in
violation of General Statutes §§ 53a-48 and 53a-103 (a). During trial, at the
conclusion of the state’s case-in-chief and after argument on the defendant’s
motion for a judgment of acquittal, the state filed the operative charging
document, an amended information dated April 4, 2014, which dropped the
conspiracy count and accessory liability theory. Thus, when the case went
to the jury, the defendant was charged solely with committing, as a principal
perpetrator, burglary in the first degree.
4
Because the state charged the defendant with remaining unlawfully inside
the victim’s residence with the intent to commit a crime therein, it did not
have to prove that the defendant’s entry into the residence was unlawful.
See State v. Peay, 96 Conn. App. 421, 439, 900 A.2d 577 (‘‘[§] 53a-101 (a)
does not require the state to prove that the defendant forcibly entered the
building’’ provided that he ‘‘remained unlawfully’’ in building), cert. denied,
280 Conn. 909, 908 A.2d 541 (2006).
5
As we will explain, the presence of the second man after the burglary
does not negate the jury’s finding that the defendant knowingly or recklessly
inflicted bodily injury on the victim during the burglary.
6
In view of this evidence, we reject the defendant’s suggestion that the
evidence was insufficient because the victim, given her age, could have
injured herself by falling. The jury reasonably could have concluded that
the perpetrator assaulted the victim in order to incapacitate her while he
was searching the home for valuables. Indeed, Cunningham testified that
the victim was readily able to move around and was not prone to falling.
7
For example, in State v. Cote, supra, 136 Conn. App. 443, this court
rejected the defendant’s claim on appeal that, ‘‘in the absence of a jury
instruction on accessory liability, there was insufficient evidence presented
to prove that the defendant committed burglary in the third degree.’’ The
defendant, along with a second man, were stopped while driving a vehicle
that matched the description of the vehicle previously observed in front of
the burglarized home, and various items that had been stolen from the home
were found inside their vehicle. Id., 445. In light of this evidence, as well
as evidence that the two men worked together to perpetrate other burglaries,
this court concluded that although there was no evidence establishing that
the defendant was the person who entered the home and stole the items,
there was nonetheless sufficient evidence to sustain his conviction because
the jury could have found that both men had committed the burglary. Id.,447–48. The defendant then argued that the evidence was insufficient
because there was evidence establishing that only one of the two men could
have entered the home, namely, the single set of footprints in the snow
outside the home and the other evidence suggesting that somebody had
moved the vehicle. Id., 448. This court rejected that argument on the ground
that, on appeal, the evidence upon which a defendant is convicted is not
rendered insufficient merely because it may be interpreted ‘‘to support a
reasonable hyphothesis of innocence.’’ Id.8
In our view, the concurring and dissenting judge’s reliance on State v.
Parham, 174 Conn. 500, 391 A.2d 148 (1978), is misplaced. In that case, the
defendant challenged the court’s instruction to the jury that, when two or
more people participate in a burglary in the course of which one participant
inflicts bodily injury on the victim, ‘‘each participant in the burglary is guilty
of the aggravated offense and it is without significance that such other
participant was without knowledge of the other’s conduct which caused
the physical injury or that he himself had no intention to cause such injury.’’
Id., 506–507. As noted by the concurring and dissenting judge, our Supreme
Court found no error in this portion of the court’s charge because the
defendant was also charged as an accessory under § 53a-8. See id., 507–508.
The court in Parham went on to observe, however, that ‘‘[i]n . . . light of
the evidence submitted by the state in [the] case, the jury could reasonably
and logically conclude that the defendant was guilty of burglary in the first
degree either as a principal perpetrator or as an aider or abettor.’’ (Emphasis
added.) Id., 508. The court noted the presence of the defendant’s fingerprints
inside the victim’s home, the victim’s identification of the defendant ‘‘as
one of the ‘men’ who threw a shirt over her head,’’ and the victim’s testimony
as to ‘‘her struggle with the men, how they handled her and [her] resultant
injuries . . . .’’ Id., 508–509. Therefore, as far as the sufficiency of the
evidence was concerned, the court in Parham suggested that the accessory
theory of liability would not have been necessary to sustain the defendant’s
conviction because the evidence would have supported the jury’s finding
that the defendant, as a principal perpetrator, inflicted bodily injury on the
victim. Id., 508; see State v. Floyd, 253 Conn. 700, 722–23 n.17, 756 A.2d 799(2000) (‘‘we concluded [in Parham] that the evidence in that case supported a
conviction of the defendant as either an accessory or a principal’’). Moreover,
Parham is factually distinguishable from the present case. In Parham, the
state’s theory was that two men were inside the victim’s home and that two
men had assailed the victim in the course of perpetrating the burglary, thus
raising an issue as to which of the men injured the victim; see State v.
Parham, supra, 502–503; whereas in the present case there was no evidence,
and the jury was not required to infer, that the second man was inside the
victim’s home during the burglary.
9
The defendant did not request a third-party culpability instruction at trial.
10
We do not agree with the concurring and dissenting judge’s characteriza-
tion of the record as indicating that Navarro-Gilmore ‘‘testified that both
men were . . . holding [the television].’’ Navarro-Gilmore initially testified
that she ‘‘saw two men walking suspiciously . . . carrying’’ the television,
and that she saw ‘‘them carrying [the television] . . . .’’ Immediately there-
after, however, she testified that she ‘‘wasn’t trying to get a good look at
the [television]. I just—I was trying to get a look at who was taking it so
that I honestly . . . saw it happen, we went back to turn onto White Street,
I was able to get a face on view of the person and honestly I just—I described
what I saw in the statement.’’ (Emphasis added.) Navarro-Gilmore’s testi-
mony, viewed in the light most favorable to the state, was therefore that
while she saw two people walking together away from the victim’s residence,
only one of them was carrying the television. Because the defendant was
the person photographed selling the television at a pawn shop shortly there-
after, and thus receiving the fruits of the crime, the jury could have inferred
that the man she saw carrying the television was the defendant.
11
The defendant agrees that, because the Holliman rule is evidentiary in
nature, his claim is not subject to review under State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989).
12
In Johnson, our Supreme Court expressed doubt regarding the continued
efficacy of the Holliman evidentiary rule in light of Perry v. New Hampshire,
565 U.S. 228, 233, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012), in which the United
States Supreme Court confirmed that eyewitness identifications obtained
through unduly suggestive procedures do not violate due process in the
absence of state involvement, but did so on the basis of reasoning that
appeared to undercut the justification for the special evidentiary rule of
Holliman. See State v. Johnson, supra, 312 Conn. 704 n.18. Chief Justice
Rogers wrote a concurring opinion in Johnson to ‘‘express [her] disagree-
ment with the necessity for the special evidentiary rule of Holliman and
to suggest that, when the issue squarely presents itself in a future appeal,
this court abandon that rule and instead hold, as did the United States
Supreme Court in [Perry], that potentially unreliable eyewitness identifica-
tions resulting from suggestive procedures undertaken by private actors
should be evaluated like any other potentially unreliable evidence . . . .’’
Id., 706–707. The majority echoed Chief Justice Rogers’ concerns and agreed
that, in light of Perry, ‘‘the reasons for this court’s holding in Holliman are
unclear.’’ Id., 704 n.18. Nevertheless, the court in Johnson did not have
occasion to abandon the rule in Holliman because the issue was not before
the court. Id. Accordingly, Holliman remains binding precedent for purposes
of the present appeal.