State v. Crosby

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STATE OF CONNECTICUT v. DARREN
MATTHEW CROSBY
(AC 37523)
DiPentima, C. J., and Elgo and Bear, Js.
Syllabus
Convicted of the crimes of robbery in the first degree and larceny in the
third degree in connection with a 2008 bank robbery, the defendant
appealed to this court. The defendant claimed, inter alia, that his rights
under the Interstate Agreement on Detainers (§ 54-186 et seq.) were
violated as a result of the state’s delay of more than four years after a
warrant for his arrest had been issued before extraditing him to Connecti-
cut from Massachusetts. The police in 2010 had faxed a copy of the
arrest warrant to the Massachusetts correctional facility, where the
defendant was then incarcerated, at the request of the correctional
facility. The correctional facility did not provide the defendant with the
appropriate detainer forms and later advised him to submit a request
to Connecticut authorities to lodge a detainer for his extradition. Con-
necticut authorities thereafter lodged a detainer in 2013, after which
the defendant was extradited to Connecticut. Held:
1. The defendant could not prevail on his claim that the trial court improperly
denied his motions to dismiss the robbery and larceny charges, which
was based on his assertion that the state’s delay in executing the arrest
warrant and extraditing him violated his due process rights and his
rights under § 54-186:
a. The trial court did not err in determining that the stated lodged the
detainer in 2013, and not in 2010, as the defendant alleged; the copy of
the arrest warrant that was faxed to Massachusetts in 2010 did not
establish the intent to lodge a detainer, as the fax did not include
language that the warrant was sent for the purpose of lodging a detainer,
Massachusetts did not consider the faxed warrant to be a detainer, and
the defendant was informed multiple times prior to 2013 that a detainer
had not been lodged, and the defendant’s claim that his rights under
§ 54-186 were violated was unavailing, as the defendant did not analyze
his claim that the alleged failure to comply with the requirements of
§ 54-186 resulted in a presumption that he was prejudiced, custodial state
delays do not automatically require the dismissal of criminal charges
in the demanding state, and the defendant failed to demonstrate that
any delay was unjustifiable or that he was prejudiced thereby.
b. The defendant could not prevail on his claim that his rights to due
process were violated as a result of the state’s delay in lodging the
detainer, which he claimed had an impact on the memory of eyewit-
nesses at trial, thereby resulting in substantial prejudice to him, he
having failed to demonstrate that the state’s alleged delay in executing
the warrant against him resulted in actual, substantial prejudice to him; a
general claim of weakened witness memory was insufficient to establish
prejudice, any defect in the memory of the state’s primary witness
prejudiced the state and worked to the defendant’s advantage, as his
cross-examination of her was effective at exposing her memory gaps
and she testified on direct examination by the state that she could not
recall the events in question, and the prejudice that the defendant alleged
pertained to concerns that are generally protected by the applicable
statute of limitations.
2. The defendant’s claim that the trial court improperly denied his motion
to suppress two eyewitness identifications of him that were made from
a police photographic array was unavailing: the identification procedure
that the police used was not unnecessarily suggestive, as the photo-
graphs in the array were not too dissimilar from the photograph of the
defendant, the defendant was not pictured in apparent prison garb, the
absence of the use of a sequential, double-blind photographic array,
which was not required in 2009, did not render the identification proce-
dure unnecessarily suggestive, the witnesses were not told that a known
suspect was in the array, and neither eyewitness was presented with
multiple arrays repeating the suspect’s photograph; moreover, even if
the photographic array was unduly suggestive, the identifications were
reliable under the totality of the circumstances, as they were made close
in time to the robbery by witnesses who saw the robber up close in a
well lit room and were 100 percent certain that he was the perpetrator
when they identified him in the array, and the state’s primary witness
accurately described the defendant in a sworn statement that she had
given to the police.
3. The defendant could not prevail on his claim that he was denied a fair
trial because the trial court’s jury instruction on identification failed to
explain certain factors that negatively impact identifications made by
witnesses, and excluded instructions necessary to assist the jury in
assessing the accuracy of eyewitness perception and credibility: there
were minimal differences between the defendant’s request to charge
and the instruction given by the court, which included, in substance,
the defendant’s requested instructions regarding the use of a double-
blind identification procedure and the impact of the passage of time on
memory, the court did not err in omitting the defendant’s request for
an instruction on unconscious transference, as there was no evidence
to establish that unconscious transference could be an issue for the
jury to consider and the defendant provided no authority that such an
instruction was required, nor did he offer an expert witness to testify
at trial about unconscious transference, and the court’s instructions
were neither overbroad nor overgeneralized, but were correct in law,
adapted to the issue of eyewitness identification and sufficient to guide
the jury, as the court, in its discretion, did not need to tailor its charge
to the precise letter of the defendant’s request.
Argued November 27, 2017—officially released June 5, 2018
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree and larceny
in the third degree, brought to the Superior Court in
the judicial district of Hartford and tried to the jury
before Mullarkey, J.; thereafter, the court denied the
defendant’s motion to suppress certain evidence; ver-
dict of guilty; subsequently, the court denied the defen-
dant’s motions to dismiss; judgment of guilty, from
which the defendant appealed to this court; thereafter,
the court, Hon. Edward J. Mullarkey, judge trial ref-
eree, issued an articulation of its decision. Affirmed.
Alec Gulash, certified legal intern, with whom was
James B. Streeto, senior assistant public defender, for
the appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom were Elizabeth S. Tanaka, assistant state’s attor-
ney, and, on the brief, Gail P. Hardy, state’s attorney,
for the appellee (state).
Opinion
BEAR, J. The defendant, Darren Matthew Crosby,
appeals from the judgment of conviction, rendered after
a jury trial, of robbery in the first degree in violation
of General Statutes § 53a-134 (a) (4)1 and larceny in the
third degree in violation of General Statutes (Rev. to
2007) § 53a-124 (a) (2).2 On appeal, the defendant claims
that the trial court erred in denying his motions to
dismiss and his motion to suppress, and improperly
concluded that (1) the state and the Massachusetts
Department of Correction did not violate his rights
under article IV, § 2, clause 2, of the United States con-
stitution and the Interstate Agreement on Detainers
(IAD), General Statutes § 54-186 et seq.; (2) the state’s
delay in executing an arrest warrant against him did
not violate his due process rights; (3) the witnesses’
identification of him from a photographic array was not
the product of an unreliable identifiable procedure; and
(4) the jury charge on eyewitness identification was
sufficient. 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 December 18, 2008, at approximately 1:44
p.m., a robbery took place at the Webster Bank in
Enfield. The perpetrator of the robbery was described
as a tall black male, clean cut, with an athletic build,
and wearing a black hooded type jacket, eyeglasses, a
white Red Sox ball cap with a black brim, and black
gloves with a Cincinnati style ‘‘C’’ on the backs. Suzanne
McVey, a bank teller, acknowledged the man’s presence
while she assisted another customer and told him that
she would be with him shortly. When called forward
to the teller window, the man approached McVey, mum-
bled something inaudible, and handed her a note, which
stated, ‘‘this [is] a robbery, give [me] all [the] fifties and
hundreds, and . . . [I have] a gun.’’ McVey complied
with the demand and gave the man cash from her
drawer, which later was determined to total $1730. After
the man left the bank, McVey informed the bank man-
ager, Kathleen Lee, that she had just been robbed. Lee
had been standing behind the teller line, about a foot
and one-half from McVey, during the robbery. In accor-
dance with bank procedure, the doors of the bank were
locked to prevent the perpetrator from returning, and
Lee called 911.
Detective Michael Bailey of the Enfield Police Depart-
ment arrived at the bank at about 2 p.m., approximately
fifteen minutes after the robbery. Lee assisted Bailey
in reviewing the bank’s surveillance footage. Multiple
images of the perpetrator were captured by the bank’s
security camera. Detective David Thomas of the Enfield
Police Department also assisted with the investigation
of the robbery. After arriving at the bank, Thomas took
a sworn statement from McVey, in which she described
the perpetrator as a ‘‘[b]lack male, six feet to six feet,
five inches, about thirty years old, thin to a medium
build, well groomed, no facial hair . . . . Wearing a
white baseball type cap possibly with a Nike logo . . .
dark-rimmed regular eyeglasses, black fleece pullover
and black pants.’’ No written statement was taken from
any other witness.
Detective William Cooper of the Enfield Police
Department, who also responded to the bank on the
day of the robbery, was assigned as the case officer for
the investigation. On February 3, 2009, Cooper went to
the bank to present a photographic array to the wit-
nesses to the robbery. McVey and Lee viewed the photo-
graphic array separately, and each identified the
defendant as the perpetrator of the robbery. An arrest
warrant for the defendant, charging him with larceny
in the third degree in violation of § 53a-124 (a) (2), and
robbery in the first degree in violation of § 53a-134 (a)
(4), was issued on February 18, 2009. The defendant was
taken into custody by the Enfield police on November
6, 2013.
On April 21, 2014, the defendant filed a motion to
dismiss and an accompanying memorandum of law,
asserting, inter alia, that the state’s unreasonable and
unjustifiable delay in executing the arrest warrant vio-
lated his rights under the sixth and fourteenth amend-
ments to the United States constitution, and article first,
§ 8, of the Connecticut constitution.3 Also on April 21,
2014, the defendant filed a motion to suppress the wit-
nesses’ identifications of him. Evidentiary hearings on
the motion to dismiss and motion to suppress took
place on April 24 and 25, 2014. On April 28, 2014, the
court denied the defendant’s motion to suppress the
witnesses’ identifications. The court did not render a
decision on the defendant’s motion to dismiss prior
to trial.
Following a jury trial, on May 5, 2014, the defendant
was found guilty of robbery in the first degree in viola-
tion of § 53a-134 (a) (4) and larceny in the third degree in
violation of § 53a-124 (a) (2). On June 18, 2014, another
hearing was held on the defendant’s motion to dismiss.
On July 1, 2014, the defendant filed a supplemental
memorandum of law in support of his motion to dismiss,
and he also filed a second motion to dismiss and sup-
porting memorandum of law asserting a violation of his
rights under the IAD. On July 9, 2014, the state filed an
opposition to the defendant’s second motion to dismiss.
On August 13, 2014, the court denied the defendant’s
motions to dismiss. On August 15, 2014, the court sen-
tenced the defendant to a total effective term of five
years imprisonment, with five years of special parole,
to run consecutively with sentences pursuant to which
he was incarcerated in Massachusetts. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
The defendant first claims that the court erred in
denying his motions to dismiss and improperly con-
cluded that (1) the state and the Massachusetts Depart-
ment of Correction did not violate his rights under
article IV, § 2, clause 2, of the United States constitution
and the IAD, § 54-186; and (2) the state’s delay in execut-
ing an arrest warrant against him did not violate his
due process rights. We are not persuaded.
The following additional facts, as set forth in the
court’s memorandum of decision and otherwise con-
tained in the record, and procedural history are relevant
to these claims. On February 18, 2009, a warrant was
issued for the defendant’s arrest in connection with the
December 18, 2008 robbery. At that time, the defendant
remained incarcerated in Massachusetts for multiple
bank robberies committed in that state.4 On July 9, 2010,
Enfield Police Detective Willie Pedemonti and James
Howard, an inspector with the Hartford state’s attor-
ney’s office, discussed, through facsimile transmis-
sions, authorization to extradite the defendant from
Massachusetts to Connecticut, and such extradition
was authorized. Extradition, however, was not pursued
at that time.
On September 1, 2010, the Enfield Police Department
received a telephone request from ‘‘Rafael’’ of the MCI-
Cedar Junction correctional facility at South Walpole
in Massachusetts, for the defendant’s warrant. The tele-
phone call was followed by a facsimile transmission
from the MCI-Cedar Junction records department,
requesting a copy of the warrant for the defendant’s
arrest ‘‘[i]n order to be able to initiate the IAD process.’’
In response to the request, Stephanie ‘‘Dee’’ Beninato,
the records clerk for the Enfield Police Department,
faxed a copy of the warrant that same day. It is undis-
puted that Massachusetts did not treat the faxed war-
rant as a detainer, and therefore, it did not provide the
defendant with IAD forms at that time.
On or about October 13, 2011, in response to an
inquiry by the defendant, the Massachusetts Depart-
ment of Correction advised the defendant that an IAD
detainer had not been lodged, and that he should submit
a written request to the state to lodge a detainer. On
or about December 19, 2011, the defendant sent a
‘‘Notice of Whereabouts & Demand for Speedy Trial’’ to
the geographical area number thirteen court in Enfield.
Maria Reed-Cook, deputy clerk for that court, advised
the defendant in a letter dated December 19, 2011,
instead to contact the state’s attorney’s office in Hart-
ford. On or about April 30, 2012, the defendant sent a
‘‘Notice of Whereabouts and Demand for a Speedy
Trial’’ and accompanying letter to Howard at the Hart-
ford state’s attorney’s office, advising him of his loca-
tion of incarceration and his efforts to have the arrest
warrant served, and asserting his right to a speedy trial.5
On May 2, 2012, Howard responded to the defendant
and notified him that, as an incarcerated prisoner in
another state, his speedy trial request did not apply
because he was incarcerated in another state, but that
he should contact his prison counselor to assist him in
making the necessary arrangements to be brought to
Connecticut under the provisions of the IAD.
On or about January 28, 2013, the Massachusetts
Department of Correction Souza-Baranowski Correc-
tional Center records manager, Jamie Lewis, notified
the defendant in a written letter that ‘‘[o]ur records
. . . indicate that you have been previously advised
that in order to begin the IAD process a detainer must
be lodged by the requesting state. A detainer has not
been lodged. You have previously been advised that
you must write to [Connecticut] and request that a
detainer be lodged. Once a detainer is received the
IAD process may be initiated.’’ On February 1, 2013, in
response to another inquiry from the defendant, Lewis
wrote to the defendant to explain that ‘‘speedy trial
requests are for same state open legal issues. For out
of state open detainers IADs are filed. As previously
indicated to you, there is no detainer filed therefore
IADs do not currently apply . . . .’’ The defendant then
made a written inquiry, dated February 3, 2013, to the
geographical area number thirteen court in Enfield. On
February 6, 2013, Reed-Cook responded to the defen-
dant, informing him again that ‘‘[i]f the warrant to which
you refer has not been served on you by an arresting
agency, the clerk’s office is not the appropriate office
to contact. [The clerk’s office] only handles matters
after an arrest has been made. You must contact the
[Hartford state’s attorney office], which handles the
lodging of detainers.’’
On May 22, 2013, Pedemonti sent a letter to Kathy
Guenther at the Souza-Baranowski Correctional Center,
which stated: ‘‘The Enfield Police Department currently
holds an active arrest warrant for [the defendant] . . .
for Robbery 1st and Larceny 3rd. Both are felonies in
the [s]tate of Connecticut. Extradition has been author-
ized by our State’s Attorney’s Office and the Enfield
Police Department will extradite.’’ After receiving the
letter, Massachusetts asked the Enfield Police Depart-
ment to clarify whether Connecticut was lodging a
detainer for IAD purposes. On July 23, 2013, the defen-
dant was notified that a detainer had been lodged
against him, and he was provided with the necessary
IAD forms, which he signed. On August 6, 2013, the
Hartford state’s attorney’s office received the IAD
forms. On November 6, 2013, Enfield police arrested
the defendant, and he was transported from Massachu-
setts to Connecticut.
On April 21, 2014, the defendant filed a motion to
dismiss the pending Connecticut charges. During the
April 25, 2014 hearing on the motion to dismiss, Carl
J. Sferrazza, the police chief for the Enfield Police
Department, testified about the general procedure for
executing a detainer—that when a warrant is secured
for the arrest of a person located out of state, the pro-
cess is ‘‘normally [to] send a copy of that warrant to
the home state or the jail where he’s being held so they
know that he’s wanted by us; that would be our normal
procedure.’’ Sferrazza testified that he did not believe
there was any written procedure, but that ‘‘our practice
has been, we e-mail or we fax the holding facility our
warrant so they’re on record that the person is wanted
by us.’’ Defense counsel then asked whether Sferrazza
was aware that ‘‘the process can be accelerated either
through extradition or what’s called the interstate
agreement on [detainers] act,’’ to which Sferrazza
explained that ‘‘we work hand in hand with the state’s
attorney’s office to get these things done. I, personally,
in my career have never been involved in that portion
of it, but we work through the state’s attorney’s office
to get these things done.’’
At the April 25, 2014 hearing, Beninato, the records
clerk for the Enfield Police Department, testified that
when she faxed the arrest warrant to the Massachusetts
correctional facility, she was merely responding to the
request from Rafael, that she was not responsible for
lodging detainers, and that lodging a detainer is not
something she would be asked to do as part of her
duties as records clerk. She was asked whether she
attached anything to the warrant to show that the state
was ‘‘making a demand for the defendant’s return to
. . . Connecticut,’’ to which she responded, ‘‘no.’’
‘‘We initially address the standard of review for a trial
court’s denial of a motion to dismiss. Because a motion
to dismiss effectively challenges the jurisdiction of the
court, asserting that the state, as a matter of law and
fact, cannot state a proper cause of action against the
defendant, our review of the court’s legal conclusions
and resulting denial of the defendant’s motion to dis-
miss is de novo. . . . Factual findings underlying the
court’s decision, however, will not be disturbed unless
they are clearly erroneous. . . . The applicable legal
standard of review for the denial of a motion to dismiss,
therefore, generally turns on whether the appellant
seeks to challenge the legal conclusions of the trial
court or its factual determinations.’’ (Citation omitted;
internal quotation marks omitted.) State v. Samuel M.,
323 Conn. 785, 794–95, 151 A.3d 815 (2016).
A
We first address the defendant’s claim that, because
the state allegedly lodged a detainer against him on
September 1, 2010, but he was not extradited from
Massachusetts until 2013, he was entitled to dismissal
of the charges against him. Specifically, the defendant
contends that his rights were violated when the Massa-
chusetts Department of Correction failed to provide
him with the necessary IAD forms after Connecticut
lodged a detainer and misinformed him of his rights, and
that Connecticut is vicariously liable for Massachusetts’
actions. We are not persuaded.
We begin our analysis by setting forth our standard
of review and the relevant legal principles governing
the defendant’s claim. ‘‘The IAD is a congressionally
sanctioned interstate compact the interpretation of
which presents a question of federal law. . . . Our
standard of review of the [defendant’s] claim is plenary.
We must decide whether the court’s conclusion is
legally and logically correct and find[s] support in the
facts that appear in the record.’’ (Citations omitted;
internal quotation marks omitted.) State v. Taylor, 63
Conn. App. 386, 411–12, 776 A.2d 1154, cert. denied,
257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978,
122 S. Ct. 406, 151 L. Ed. 2d 308 (2001).
‘‘The purpose of the IAD is to establish a cooperative
procedure for disposition of charges against a prisoner
in one state who is wanted to respond to untried crimi-
nal charges in another state. . . . The IAD is activated
when the state seeking the prisoner (the receiving state)
files written notice that he is wanted to answer charges
in that state. . . . This notice, referred to as a detainer,
is simply a notification filed with the institution in which
the prisoner is serving a sentence, advising that he is
wanted to face pending criminal charges in another
jurisdiction.’’ (Citations omitted; internal quotation
marks omitted.) Id., 412.
‘‘After lodging the detainer an appropriate officer of
the demanding state may make a written request for
temporary custody of the prisoner for the purpose of
trying these indictments, informations, or complaints
that form the basis of the detainer. . . . Unless the
governor of the asylum state disapproves the request
for temporary custody within thirty days of its filing,
the demanding state shall be entitled to have a prisoner
against whom [it] has lodged a detainer. . . . Once a
detainer has been filed against a prisoner, custodial
officials must promptly notify the prisoner of the source
and contents of the detainer and of the prisoner’s right
to request a final disposition of the foreign charge; Gen-
eral Statutes § 54-186, art. III (c); the prisoner, upon
notifying prosecuting officials in the demanding state
of his or her request for a final disposition of the charge,
must be brought to trial within 180 days of the request;
General Statutes § 54-186, art. III (a).’’ (Citations omit-
ted; internal quotation marks omitted.) Remick v. Lopes,
203 Conn. 494, 502–503, 525 A.2d 502 (1987).
‘‘The provisions of the [IAD] are activated only when
the receiving or charging state lodges with the sending
or asylum state a detainer based on a pending indict-
ment, information or complaint.’’ (Internal quotation
marks omitted.) Id., 501. Accordingly, the state was not
required to comply with the provisions of the IAD until
it lodged a detainer against the defendant. See United
States v. Mauro, 436 U.S. 340, 361, 98 S. Ct. 1834, 56 L.
Ed. 2d 329 (1978) (‘‘[b]ecause . . . the [g]overnment
never filed a detainer against [the defendants], the [IAD]
never became applicable and the United States was
never bound by its provisions’’). Therefore, we first
must determine when the state lodged a detainer against
the defendant before we address his claim that his rights
under the IAD were violated.
The defendant argues that the court erred in
determining that a detainer was lodged against him in
May, 2013. He contends that a detainer instead was
lodged against him when the Enfield Police Department
faxed a copy of his arrest warrant to Massachusetts on
September 1, 2010. We disagree.
A detainer is ‘‘a notification filed with the institution
in which a prisoner is serving a sentence, advising that
he is wanted to face pending criminal charges in another
jurisdiction.’’ (Internal quotation marks omitted.) State
v. Milton, 26 Conn. App. 698, 708, 603 A.2d 750, appeal
dismissed, 224 Conn. 163, 617 A.2d 460 (1992). ‘‘A
detainer . . . need not take any particular form; its
purpose is to provide written notice to prison authori-
ties . . . that charges are pending against the prisoner.
. . . Thus, a letter from a police department to prison
officials . . . a letter from the clerk of court to prison
officials . . . and a letter from a prosecuting attorney
to prison officials . . . have all been held to fall within
the IAD definition of a detainer.’’ (Citations omitted;
internal quotation marks omitted.) Id., 708–709.
In the present case, the court found that the state
did not lodge a detainer on September 1, 2010, because
‘‘it cannot be ascertained whether [state] officials
requested that Massachusetts hold the defendant or
notify [the state] when the defendant’s release was
imminent’’ through the mere sending of the faxed war-
rant. Importantly, a detainer is initiated by the receiving
state (Connecticut), not by the sending state (Massa-
chusetts). See State v. Taylor, supra, 63 Conn. App. 412.
Thus, the fact that the Enfield records clerk faxed a
copy of the arrest warrant in response to a request for
the warrant from Massachusetts does not establish the
state’s intent to lodge a detainer. As the defendant con-
cedes in his principal brief, ‘‘the fax sent by the Enfield
Police Department did not include language expressly
stating that the warrant was being sent for the purpose
of lodging a detainer . . . .’’ In contrast, the May 22,
2013 letter, signed by Pedemonti of the Enfield Police
Department, did indicate the state’s intent to lodge a
detainer. It provided, in relevant part: ‘‘The Enfield
Police Department currently holds an active arrest war-
rant for [the defendant] . . . for Robbery 1st and Lar-
ceny 3rd. Both are felonies in the [s]tate of Connecticut.
Extradition has been authorized by our State’s Attor-
ney’s Office and the Enfield Police Department will
extradite.’’ (Emphasis added.)
The trial court also found it relevant that, although
the warrant was faxed in response to a request from
Massachusetts to do so, Massachusetts did not consider
the faxed warrant to be a detainer. The parties stipu-
lated to the trial court that ‘‘the Massachusetts [Depart-
ment of Correction] will consider a written document
as a detainer triggering the IAD process if the document
references a pending criminal charge and requests
either (a) that the criminal justice agency be notified
when the inmate’s sentence is completed or (b) that
the Massachusetts [Department of Correction] hold the
subject after his sentence is completed so that he can
be taken into custody by the receiving state.’’ Although
the May, 2013 letter satisfied these criteria, the Septem-
ber, 2010 fax did not.
Furthermore, the defendant was informed multiple
times prior to May, 2013, by Massachusetts correctional
employees that a detainer had not been lodged against
him. It was not until July 23, 2013, that he was notified
that a detainer had been lodged against him by the state.
On the basis of the foregoing, we conclude that the
court did not err in determining that the detainer was
lodged against the defendant in May, 2013.
We next consider whether the defendant’s rights
under the IAD were violated. The defendant claims that
‘‘Massachusetts, in [its] capacity as [agent] for [the
state], violated the IAD through inaction [and that the
state], as principal, is liable for this violation.’’ The
defendant contends that Massachusetts’ failure to rec-
ognize the state’s detainer halted the filing procedure,
and delayed the triggering of the defendant’s rights and
duties under the IAD. We are not persuaded. As set forth
previously in this opinion, the state lodged a detainer
against the defendant in May, 2013. Thus, only two
months elapsed between the detainer being lodged and
the defendant being informed in July, 2013, that the state
had lodged a detainer against him. Even if a detainer
effectively had been lodged in September, 2010, how-
ever, the defendant’s claim still would fail because he
has failed to demonstrate that any delay was unjustifi-
able or that he was prejudiced by any delay.
‘‘Article III of the IAD governs inmate requests for a
prompt disposition of outstanding detainers. The cen-
terpiece of Article III is subsection (a), which states
that a prisoner shall be brought to trial within one
hundred eighty days after he shall have caused to be
delivered to the prosecuting officer and the appropriate
court of the prosecuting officer’s jurisdiction written
notice of the place of his imprisonment and his request
for a final disposition to be made of the indictment,
information or complaint . . . . Failure to comply with
Article III (a) mandates dismissal with prejudice of the
underlying charges.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Herring, 210 Conn. 78,
85–86, 554 A.2d 686, cert. denied, 492 U.S. 912, 109
S. Ct. 3230, 106 L. Ed. 2d 579 (1989). ‘‘The remaining
provisions of Article III address the custodial state’s
duty ‘promptly’ to inform a prisoner of outstanding
detainers; General Statutes § 54-186, Article III (c); and
‘promptly’ to forward a request for prompt disposition
to the demanding state. General Statutes § 54-186, Arti-
cle III (b) and (d).’’ (Footnote omitted.) State v. Herring,
supra, 86.
‘‘Although custodial state delays do not automatically
require the dismissal of criminal charges in the
demanding state, we would be remiss in our obligation
to effectuate the IAD’s purposes and principles if we
were simply to ignore such a violation. Indeed . . .
under the IAD, officials of the custodial state act as the
agents of the demanding state. . . . When, in some-
what similar circumstances, we sought to enforce a
criminal defendant’s right to have his appeal defended
by the state with due diligence . . . we found a useful
analogy in the rules that have been developed to protect
a defendant’s constitutional right to a speedy trial. So
too [a] defendant’s right to prompt IAD notification can
appropriately be protected by invoking the balancing
principles of Barker v. Wingo, 407 U.S. 514, 530, 92 S.
Ct. 2182, 33 L. Ed. 2d 101 (1972), which determine when
a deprivation of speedy trial rights requires dismissal
of criminal charges against a defendant. . . . The four
factors that form the matrix of a Barker v. Wingo [supra,
530] analysis are: the length of the delay, the reason
for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.’’ (Citations omitted.) State
v. Herring, supra, 210 Conn. 89–90. ‘‘We recognize that
these factors have no talismanic qualities but rather
must be considered together with such other circum-
stances as may be relevant. . . . The triggering mecha-
nism for our consideration of the Barker factors is the
length of the delay that the defendant has experienced.
. . . As the tolerable length of delay may vary greatly
between cases, our inquiry into the length of the delay
is necessarily dependent upon the peculiar circum-
stances of the case.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Roman, 320 Conn. 400,
418–19, 133 A.3d 441 (2016).
On appeal, the defendant fails to analyze his claim
pursuant to the Barker factors, and instead argues that
‘‘prejudice is presumed for failure to comply with IAD
regulations.’’ As the state asserts, however, the defen-
dant’s argument conflicts with established case law,
which explicitly states that ‘‘custodial state delays do
not automatically require the dismissal of criminal
charges in the demanding state . . . .’’ State v. Herring,
supra, 210 Conn. 89. We agree with the state and, thus,
reject the defendant’s argument that prejudice is pre-
sumed by ‘‘a delay of this magnitude.’’ Rather, a claim of
prejudice resulting from the delay is properly analyzed
pursuant to the four Barker factors.
Utilizing the Barker factors, the trial court in the
present case determined that, as to the first factor, the
length of the delay between the defendant’s sentencing
in Massachusetts on July 23, 2010, and his receipt of
the IAD forms on August, 26, 2013, was ‘‘sufficient to
trigger an application of the remaining three factors.’’6
As to the second factor, the court concluded that ‘‘much
of the delay seems to be attributable to a misunder-
standing, or miscommunication, on the part of officials
in both states concerning whether an IAD detainer had
been lodged and the proper way in which to initiate
the lodging of a detainer’’ but that ‘‘this factor cuts
slightly in favor of the defendant.’’ As to the third factor,
the court noted that the defendant made at least one
attempt to assert his right to a speedy trial by sending
a letter to Howard, but there were also periods of inac-
tivity in asserting that right. Finally, as to the fourth
factor, the court concluded that the defendant failed
to establish prejudice.7 The defendant has failed to dem-
onstrate on appeal that any delay was unjustifiable or
that he was prejudiced by any delay. Accordingly, we
conclude that the court properly denied the defendant’s
motion to dismiss.
B
We next address the defendant’s claim that the court
erroneously denied his motion to dismiss because his
due process rights were violated by the state’s ‘‘unrea-
sonable and unjustifiable delay’’ in executing the arrest
warrant against him, extraditing him four years after
the warrant was issued. The defendant contends that
the unjustifiable delay had an impact on the memory of
the eyewitnesses, which resulted in actual, substantial
prejudice to him. We are not persuaded.
‘‘The role of due process protections with respect to
pre-accusation delay has been characterized as a limited
one. . . . [T]he Due Process Clause does not permit
courts to abort criminal prosecutions simply because
they disagree with a prosecutor’s judgment as to when
to seek an indictment.’’ (Internal quotation marks omit-
ted.) Slater v. Commissioner of Correction, 158 Conn.
App. 522, 536, 119 A.3d 1221, cert. denied, 319 Conn. 932,
125 A.3d 206 (2015). ‘‘This court need only determine
whether the action complained of . . . violates those
fundamental conceptions of justice which lie at the base
of our civil and political institutions . . . and which
define the community’s sense of fair play and decency
. . . . The due process clause has not replaced the
applicable statute of limitations . . . [as] . . . the pri-
mary guarantee against bringing overly stale criminal
charges.’’ (Citations omitted; internal quotation marks
omitted.) State v. John, 210 Conn. 652, 685, 557 A.2d
93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L.
Ed. 2d 50 (1989); see also Slater v. Commissioner of
Correction, supra, 536. ‘‘In order to establish a due
process violation because of pre-accusation delay, the
defendant must show both that actual substantial preju-
dice resulted from the delay and that the reasons for
the delay were wholly unjustifiable, as where the state
seeks to gain a tactical advantage over the defendant.
. . . [P]roof of prejudice is generally a necessary but
not sufficient element of a due process claim, and . . .
the due process inquiry must consider the reasons for
the delay as well as the prejudice to the accused.’’ (Inter-
nal quotation marks omitted.) State v. John, supra, 685–
86. ‘‘Mere allegations of potential prejudice or dimmed
memory are insufficient.’’ State v. Hanna, 19 Conn. App.
277, 278, 562 A.2d 549 (1989).
In the present case, the arrest warrant for the defen-
dant for the December 18, 2008 robbery was issued
on February 18, 2009. The defendant was taken into
custody and transported to Connecticut from Massa-
chusetts by the Enfield Police Department on Novem-
ber 6, 2013. Although approximately four years and
eleven months passed from the date of the robbery to
the execution of the arrest warrant, and approximately
four years and nine months passed from the date of
the arrest warrant to its execution, those periods of
time standing alone do not require a finding of a due
process violation. See State v. Haynes, 8 Conn. App.
361, 364, 513 A.2d 160 (1986) (‘‘A delay of nearly twenty-
one months between the date of the crime and the
date of the arrest has been held insufficient to dismiss
charges against a defendant, absent a showing of any
specific prejudice to the defendant; State v. Aspinall,
6 Conn. App. 546, 549, 506 A.2d 1063 [1986]; as has a
delay of more than five years. State v. Littlejohn, [199
Conn. 631, 646, 508 A.2d 1376 (1986)].’’). The defendant
must establish that the passage of time was wholly
unjustifiable and caused him actual, substantial
prejudice.8
The defendant claims that the delay resulted in actual,
substantial prejudice because ‘‘[a]t trial, the state’s pri-
mary witness, McVey, revealed that she had no recollec-
tion of the suspect or of her conversations with
investigating officers in which she described that sus-
pect. McVey’s lack of memory deprived defense counsel
of the chance to effectively cross-examine [her] . . .
regarding her identification.’’ We note, however, that
‘‘[a] claim of general weakening of witnesses’ memories,
relying on the simple passage of time, cannot, without
a more specific showing, be said to prejudice the defen-
dant.’’ (Internal quotation marks omitted.) State v.
Lacks, 58 Conn. App. 412, 420, 755 A.2d 254, cert. denied,
254 Conn. 919, 759 A.2d 1026 (2000); see also State v.
Hanna, supra, 19 Conn. App. 278. Furthermore, because
McVey was the state’s primary witness, any defect in
her memory prejudiced the state, not the defense. See
State v. Morrill, 197 Conn. 507, 528, 498 A.2d 76 (1985).
Indeed, ‘‘[a]s the time between the commission of the
crime and trial lengthens, witnesses may become
unavailable or their memories may fade. If the witnesses
support the prosecution, its case will be weakened,
sometimes seriously so. And it is the prosecution which
carries the burden of proof.’’ Barker v. Wingo, supra,
407 U.S. 521. As the state points out in its brief, and the
record supports, the delay worked to the defendant’s
advantage, as the defendant’s cross-examination of
McVey was effective at exposing her memory gaps.
McVey’s responses to many questions on both direct
examination and cross-examination was that she could
not recall the events in question.9
Additionally, as the trial court pointed out in its mem-
orandum of decision, the defendant’s claimed prejudice
pertains to concerns generally protected by the applica-
ble statute of limitations.10 We reiterate that ‘‘[t]he due
process clause has not replaced the applicable statute
of limitations . . . [as] . . . the primary guarantee
against bringing overly stale criminal charges.’’ (Inter-
nal quotation marks omitted.) State v. John, supra, 210
Conn. 685.
The defendant has not demonstrated that the state’s
alleged delay in executing the warrant against him
resulted in actual, substantial prejudice to him.11 See
id., 686 (‘‘we cannot find in this record that the defen-
dants have shown, as they must, actual substantial prej-
udice, such as the death or disappearance of a vital
defense witness’’ [internal quotation marks omitted]).
Accordingly, the trial court did not err in denying the
defendant’s motion to dismiss.
II
The defendant next claims that the court erred in
denying his motion to suppress and improperly con-
cluded that the witnesses’ identification of him from
the suspect photographic array was not the product of
an unreliable identification procedure. Specifically, the
defendant claims that the photographic array was
unnecessarily suggestive and unreliable because ‘‘(1)
the ‘filler’ photographs12 were too dissimilar from the
defendant; (2) the defendant was the only individual
pictured in apparent prison garb; (3) the array was
simultaneous, as opposed to sequential; and (4) the
police department did not use a ‘double-blind’ identifi-
cation procedure.’’ (Footnote added.) We are not per-
suaded.
The following additional facts are relevant to this
claim. On February 3, 2009, Cooper separately pre-
sented to McVey and Lee a photographic array created
by Massachusetts State Police Trooper Kevin O’Toole,
which contained eight photographs of males of the same
race and with similar features. Prior to presenting the
array to each witness, Cooper read the following
required warning: ‘‘You will be asked to look at a group
of photographs. The fact that the photographs are
shown to you should not influence your [judgment].
You should not conclude or guess that the photographs
contain the picture of the person who committed the
crime. You are not obligated to identify anyone. It is just
as important to free innocent persons from suspicion
as to identify guilty parties. Please do not discuss the
case with other witnesses or indicate in any way that
you have identified someone.’’ Lee and McVey each
signed the page from which the warning was read to
them, acknowledging that they understood the warning.
After viewing the array, each witness selected photo-
graph number three, the photograph of the defendant,
and identified him as the perpetrator of the December
18, 2008 robbery at the bank.
On April 21, 2014, the defendant filed a motion to
suppress the witnesses’ identification of him on the
ground that the photographic array was unnecessarily
suggestive and unreliable. A hearing on the motion to
suppress took place on April 25, 2014. At the hearing,
the two witnesses, McVey and Lee, testified. Lee testi-
fied that she ‘‘was 100 percent certain’’ of her identifica-
tion of the defendant as the perpetrator of the robbery
when Cooper presented her with the photographic array
on February 3, 2009. Lee also testified that her attention
was drawn to the defendant for ‘‘two reasons; the first
reason was, I didn’t recognize him as a depositor, and
people that don’t deposit with us are sales opportunities
and we really [have] a strong sales culture, so that was
one thing; that’s what I’m trained to do. And the other
reason why he caught my attention was, he looked just
like my husband, and I took a second look and that’s
why he caught my attention, those two reasons. . . .
My husband wears similar glasses, and he had at the
time the same mustache and the same skin tone and a
very similar build.’’ Defense counsel asked Lee whether
she saw any significance in the defendant’s clothing, to
which she stated that she did not.
McVey testified at the hearing that she recalled
describing some of the defendant’s features to the
police, such as his clothing and his race, but that she
could not recall her description of his build or certain
facial features. McVey did testify that, at the time of
the photographic array, she was ‘‘100 percent’’ certain
of her identification of the defendant as the perpetrator
of the robbery. McVey stated that she selected the
defendant’s photograph from the array because
‘‘[s]omething just triggered a memory and it was the
correct memory. . . . [S]omething about that particu-
lar picture just brought the whole thing back.’’ Similar
to Lee, McVey testified that she saw no significance in
the defendant’s clothing.
Following the hearing, on April 28, 2014, the court
denied the defendant’s motion to suppress. Lee and
McVey both testified at trial. In response to the defen-
dant’s motion for an articulation, the court issued a
written articulation of its decision on October 4, 2016.
‘‘Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress
is well defined. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]here the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision . . . .’’ (Internal quota-
tion marks omitted.) State v. Salmond, 179 Conn. App.
605, 615–16, 180 A.3d 979, cert. denied, 328 Conn. 936,
A.3d (2018). ‘‘[A] claim of an unnecessarily
suggestive pretrial identification procedure is a mixed
question of law and fact. . . . [B]ecause the issue of the
reliability of an identification involves the constitutional
rights of an accused . . . we are obliged to examine
the record scrupulously to determine whether the facts
found are adequately supported by the evidence and
whether the court’s ultimate inference of reliability was
reasonable. . . . Because the inquiry into whether evi-
dence of pretrial identification should be suppressed
contemplates a series of factbound 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.’’ (Citation omitted; internal
quotation marks omitted.) State v. Johnson, 149 Conn.
App. 816, 822, 89 A.3d 983, cert. denied, 312 Conn. 915,
93 A.3d 597 (2014). ‘‘[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.’’ (Internal quotation
marks omitted.) State v. Salmond, supra, 616; see also
State v. Marquez, 291 Conn. 122, 137–38, 967 A.2d 56,
cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed.
2d 163 (2009). ‘‘[I]f we find that the court incorrectly
permitted, as reliable, evidence flowing from an unrelia-
ble and unduly suggestive identification procedure,
there remains the further issue of whether the ensuing
judgment of conviction may be affirmed on the ground
that the due process violation was, nevertheless, harm-
less in light of all the evidence correctly adduced at
trial and untainted by the admission of an unreliable
identification.’’ (Internal quotation marks omitted.)
State v. Day, 171 Conn. App. 784, 809, 158 A.3d 323
(2017).
On appeal, the defendant claims that his due process
rights were violated by the admission of the witnesses’
identification of him at trial. ‘‘In determining whether
identification procedures violate a defendant’s due pro-
cess rights, the required inquiry is made on an ad hoc
basis and is two-pronged: first, it must be determined
whether the identification procedure was unnecessarily
suggestive; and second, if it is found to have been so,
it must be determined whether the identification was
nevertheless reliable based on examination of the total-
ity of the circumstances.’’ (Internal quotation marks
omitted.) State v. Marquez, supra, 291 Conn. 141. ‘‘The
first suggestiveness prong involves the circumstances
of the identification procedure itself . . . and the criti-
cal question is whether the procedure was conducted
in such a manner as to emphasize or highlight the indi-
vidual whom the police believe is the suspect. . . . If
the trial court determines that there was no unduly
suggestive identification procedure, that is the end of
the analysis, and the identification evidence is admissi-
ble. . . . If the court finds that there was an unduly
suggestive procedure, the court goes on to address the
second reliability prong, under which the corruptive
effect of the suggestive procedure is weighed against
certain factors, such as the opportunity of the [eyewit-
ness] to view the criminal at the time of the crime, the
[eyewitness’] degree of attention, the accuracy of [the
eyewitness’] prior description of the criminal, the level
of certainty demonstrated at the [identification] and
the time between the crime and the [identification].’’
(Citations omitted; internal quotation marks omitted.)
State v. Dickson, 322 Conn. 410, 421, 141 A.3d 810
(2016), cert. denied, U.S. , 137 S. Ct. 2263, 198
L. Ed. 2d 713 (2017). ‘‘[A]n out-of-court eyewitness iden-
tification should be excluded on the basis of the proce-
dure used to elicit that identification only if the court
is convinced that the procedure was so suggestive and
otherwise unreliable as to give rise to a very substantial
likelihood of irreparable misidentification.’’ (Internal
quotation marks omitted.) State v. Salmond, supra, 179
Conn. App. 617.
‘‘In evaluating the [first factor concerning] sugges-
tiveness of a photographic array, a court should look
to both the photographs themselves and the manner in
which they were presented to the identifying witness.
. . . We consider the following nonexhaustive factors
in analyzing a photographic array for unnecessary sug-
gestiveness: (1) the degree of likeness shared by the
individuals pictured . . . (2) the number of photo-
graphs included in the array . . . (3) whether the sus-
pect’s photograph prominently was displayed or
otherwise was highlighted in an impermissible manner
. . . (4) whether the eyewitness had been told that the
array includes a photograph of a known suspect . . .
(5) whether the eyewitness had been presented with
multiple arrays in which the photograph of one suspect
recurred repeatedly . . . and (6) whether a second
eyewitness was present during the presentation of the
array. . . . It is important to note, however, that [p]ho-
tographs will often have distinguishing features. The
question . . . is not whether the defendant’s photo-
graph could be distinguished from the other photo-
graphs . . . but whether the distinction made it
unnecessarily suggestive.’’ (Citations omitted; internal
quotation marks omitted.) State v. Marquez, supra, 291
Conn. 161.
In the present case, the court determined that the
identification procedure was not unnecessarily sugges-
tive. In its written articulation of its decision denying
the defendant’s motion to suppress, the court analyzed
the photographic array pursuant to the six factors set
forth in Marquez. As to the first factor, which addresses
the degree of similarity between the individuals in the
array, the court noted that ‘‘[e]ach person is posed in
front of a solid color background which contains no
marking for height or other characteristics. Three
appear to be some shade of grey, while five, including
the defendant at number three, appear white. Each
photo appears to be of similarly aged males of the same
race with brown eyes. Seven photos, including the
defendant’s, display some facial hair. While the defen-
dant may have been in prison garb, the defense provided
no proof of that. The defendant thoroughly examined
. . . Cooper and the two eyewitnesses on that point.
During a previous hearing on April 24, 2014, on motions
to dismiss, defense counsel made claims about Massa-
chusetts prison garb, but provided no evidence. . . .
The tan v-necked shirt is not obvious prison garb with
numbers or lettering on it. It is not a luminous orange
or yellow color. And most importantly, this court finds
that neither eyewitness saw any significance in the
shirt’s appearance.’’ (Citation omitted.)
As to the second factor, the court noted that ‘‘the
number of photographs was the standard of eight photo-
graphs. While not presented in a sequential, double-
blind manner, these photo boards met the standards in
effect on February 3, 2009.’’ See State v. Marquez, supra,
291 Conn. 164 (‘‘the failure to use a double-blind proce-
dure does not automatically render an identification
suspect, particularly when, as in the present case, there
is no evidence that the detectives conducting the proce-
dure influenced the witnesses in any discernible way
prior to their making the identification’’).
As to the third factor, the court noted that ‘‘Cooper
was questioned extensively on the procedures he fol-
lowed, particularly with regard to the composition and
timing of the array. Th[e] robbery [at issue in the present
case] occurred on December 18, 2008. The defendant
was arrested in Massachusetts for other robberies on
January 25, 2009. The array was shown to the two eye-
witnesses on February 3, 2009. Extensive examination
of [Cooper] in several areas of his investigation included
possible third-party suspects, composition of the array
and witnesses he did not interview. He testified that he
relied more on the bank’s surveillance photos than on
witness descriptions, did not use Connecticut driver’s
license photos because they cannot be sorted by physi-
cal characteristics . . . and did not use Springfield
Police Department photos because [they] did not fit
[in] Enfield Police Department folders. . . . Instead,
[Cooper] used an array composed by . . . O’Toole of
the Massachusetts State Police . . . . The defendant’s
photo does not conflict with the statement . . . given
by . . . McVey except on facial hair, which is also worn
by six others depicted in the array. The detective gave
no feedback to either eyewitness after the positive iden-
tifications. . . . Lee’s description was that the perpe-
trator was African-American, wore glasses, a mustache
and a lot of clothing, and looked to be in his thirties
with an average build. While [Cooper] was asked to
speculate as to the last known mug shot of the defen-
dant available to him, that evidence was never elicited.’’
(Citations omitted.)
As to the fourth factor, the court noted that ‘‘the
witnesses were not told that a known suspect was in
the array. In fact, each was told the opposite and given
the approved warnings to that effect . . . . Lee . . .
testified at the motion to suppress [hearing] that she
was behind the teller line when she first saw the perpe-
trator from a distance, whom she did not recognize as
a depositor but at first took to be her husband until
apparently dissuaded by the team logo on his [baseball]
cap. She further testified that [Cooper] showed her the
array when only they were in her office and after he
had given and she signed [the standard warning]. The
only difference between the picture and the robber was
an absence of eyeglasses. [Lee testified that she] was
‘100 [percent]’ sure of her identification. . . . McVey
testified at the hearing that she had been trained to
hand over the money and to remember the perpetrator.
She was shown a copy of the same photo array [as Lee]
and selected the defendant. While [McVey] did not recall
her level of certainty at the time of the identification,
at the hearing she was ‘100 [percent]’ sure. . . . McVey
was also given the standard warning . . . . She testi-
fied that as to photo number three in the array, ‘some-
thing just triggered a correct memory.’ ’’
As to the fifth factor, ‘‘neither eyewitness was pre-
sented with multiple arrays repeating the suspect’s
photo. Similarly, the sixth factor was not violated, as
each witness was shown the array in the presence of
. . . Cooper only in attendance.’’ Having concluded
that the identification procedure was not unnecessarily
suggestive, the court did not reach the second prong
of reliability but concluded that the month and one-
half delay ‘‘goes to the weight of the identification, not
the fairness of the procedure, and would not change
this court’s opinion even if the [reliability based] totality
of [the] circumstances prong were reached.’’
On the basis of our review of the record, we find
ample support for the court’s findings. We cannot con-
clude that the photographs in the array were too dissimi-
lar. During the April 25, 2014 motion to suppress
hearing, both Lee and McVey testified that they were
‘‘100 percent’’ certain of their photographic array identi-
fication of the defendant as the perpetrator of the rob-
bery, and neither testified that they considered the
photographs to be dissimilar. The photographic array
was admitted as an exhibit, and the photographs in the
array depict similarly aged males of the same race with
brown eyes, all posed in front of a solid color back-
ground.
We are not persuaded by the defendant’s claim that,
at trial, McVey found every photograph aside from the
defendant’s ‘‘to be dissimilar from her recollection of
the suspect either because of age, face shape and/or
skin color.’’ McVey did not testify that she found the
photographs to be dissimilar. Instead, consistent with
her testimony on direct examination, McVey testified
on cross-examination that she selected the defendant’s
photograph because of his ‘‘eyes.’’13 She identified him
in the array because ‘‘[h]is eyes were what determined
it for me.’’ Although McVey agreed with defense counsel
that there were differences among the photographs, at
no point did she testify, nor was she asked to comment
on, whether she found the photographs too dissimilar.
Importantly, ‘‘[p]hotographs will often have distinguish-
ing features. The question . . . is not whether the
defendant’s photograph could be distinguished from
the other photographs . . . but whether the distinction
made it unnecessarily suggestive.’’ (Internal quotation
marks omitted.) State v. Marquez, supra, 291 Conn. 161.
We also cannot conclude that the court erred in
determining that the defendant was not pictured in
apparent prison garb. The photograph of the defendant
in the array depicts him wearing a tan v-neck shirt that
is not bright in color or imprinted with any insignia.
Both Lee and McVey testified at the motion to suppress
hearing that they did not see any significance in the
defendant’s shirt.
Additionally, we are not persuaded by the defendant’s
argument that the absence of a sequential, double-blind
photographic array rendered the identification proce-
dure unnecessarily suggestive.14 As the defendant con-
cedes in his principal brief, ‘‘Cooper was not required
by statute to utilize the double-blind, sequential proce-
dure in 2010,’’ but the defendant nevertheless argues
that ‘‘studies were already out and ongoing at that time,
which indicated that these procedures were the best
practices for law enforcement.’’ The defendant con-
tends that ‘‘[t]he identification methods that Cooper
used . . . put [him] in a position to purposefully or
inadvertently provide confirmatory feedback that could
have influenced the witnesses’ confidence in their iden-
tifications,’’ and that ‘‘[t]his could have been avoided
by using a sequential array [and] . . . by sending
another officer to the bank.’’
Although we recognize that a sequential, double-blind
procedure now is mandated pursuant to General Stat-
utes § 54-1p,15 it was not the required procedure in 2009,
when the photographic array was presented to the wit-
nesses in this case. See State v. Marquez, supra, 291
Conn. 164 (‘‘the failure to use a double-blind procedure
[did] not automatically render an identification suspect,
particularly when . . . there is no evidence that the
[police officer] conducting the procedure influenced
the witnesses in any discernible way prior to their mak-
ing the identification’’); State v. Outing, 298 Conn. 34,
49, 3 A.3d 1 (2010) (‘‘[a] simultaneous photographic
array is not unnecessarily suggestive per se, however,
even if it was not administered in a double-blind proce-
dure’’), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179
L. Ed. 2d 316 (2011). The defendant does not argue that
§ 54-1p applies retroactively, but maintains that he was
prejudiced by the procedure utilized by Cooper. This
court previously has rejected a similar claim. In State
v. Johnson, supra, 149 Conn. App. 821, this court
rejected the defendant’s argument that ‘‘[t]he absence
of double-blind, sequential arrays makes a photo array
unduly suggestive’’; (internal quotation marks omitted);
where the eyewitness identification was made in 2009,
prior to the requirement that a sequential, double-blind
procedure be utilized. This court upheld the trial court’s
application of the law in effect at the time of the identifi-
cation and rejected the defendant’s claim that ‘‘a non-
double-blind photographic array procedure, per se, is
unduly suggestive.’’ Id., 829. We similarly reject the
defendant’s claim in the present case that the absence
of a sequential, double-blind procedure per se rendered
the identification unnecessarily suggestive.16
Even if we assume, arguendo, that the photographic
array procedure was unduly suggestive, the identifica-
tion nevertheless would be reliable on the basis of the
totality of the circumstances. See State v. Dickson,
supra, 322 Conn. 421 (‘‘[i]f the court finds that there
was an unduly suggestive procedure, the court goes on
to address the second reliability prong, under which
the corruptive effect of the suggestive procedure is
weighed against certain factors, such as the opportunity
of the [eyewitness] to view the criminal at the time of
the crime, the [eyewitness’] degree of attention, the
accuracy of [the eyewitness’] prior description of the
criminal, the level of certainty demonstrated at the
[identification] and the time between the crime and the
[identification]’’ [internal quotation marks omitted]). As
the defendant concedes, ‘‘McVey and Lee saw the rob-
ber up close, and in a well lit room.’’ Additionally, McVey
accurately described the defendant in her sworn state-
ment to the police, and her description matched the
depiction of the perpetrator in the bank surveillance
photographs. Lee and McVey both testified that they
were 100 percent certain at the time of the identification
that the defendant was the perpetrator. The identifica-
tion in February, 2009, was made close in time to the
December, 2008 robbery. Thus, even if there was an
unduly suggestive procedure, which we conclude there
was not, the defendant’s claim would fail under the
second reliability prong. See State v. Marquez, supra,
291 Conn. 141. On the basis of the foregoing, we con-
clude that the court did not err in denying the defen-
dant’s motion to suppress the eyewitnesses’
identification of him.
III
The defendant claims that ‘‘[t]he jury charge on identi-
fication . . . failed to provide an in-depth explanation
of factors that have a negative impact on witness identi-
fication and . . . incorrectly excluded instructions
necessary to assist the triers of fact in assessing the
accuracy of eyewitness perception and credibility.’’
Specifically, the defendant contends that he was
deprived of a fair trial because the jury instructions
were incomplete, as several of the factors from State
v. Guilbert, 306 Conn. 218, 245, 49 A.3d 705 (2012), that
he included in his request to charge were missing or
not explained in sufficient depth. We are not persuaded.
The following additional facts and procedural history
are relevant to this claim. On April 30, 2014, the defen-
dant filed a request to charge. A charging conference
began that same day and continued on the morning of
May 1, 2014. Discussion at the conferences centered
on the defendant’s request to charge on eyewitness
identification. The jury was instructed on May 1, 2014.
Following the instructions, the court asked the parties
if they had any exceptions to the charge. The state had
none. Defense counsel stated to the trial court that he
‘‘appreciate[d] [that] the court gave . . . in substance
what I requested’’ for the jury instructions, and he then
went on to clarify that he was not making additional
exceptions ‘‘other than what we had already argued
about yesterday in terms of crafting the identification
instructions. . . . I still don’t mean to abandon any of
the . . . arguments that . . . I made . . . yesterday
. . . .’’
‘‘Our Supreme Court has held that identification
instructions are not constitutionally required and [e]ven
if [a] court’s instructions were less informative on the
risks of misidentification . . . the issue is at most one
of instructional error rather than constitutional error.
A new trial would only be warranted, therefore, if the
defendant could establish that it was reasonably proba-
ble that the jury was misled. . . . The ultimate test of
a court’s instructions is whether, taken as a whole, they
fairly and adequately present the case to a jury in such
a way that injustice is not done to either party under
the established rules of law.’’ (Internal quotation marks
omitted.) State v. Day, supra, 171 Conn. App. 831.
‘‘We review nonconstitutional claims of instructional
error under the following standard. While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper.’’
(Internal quotation marks omitted.) Id., 831–32. ‘‘A chal-
lenge to the validity of jury instructions presents a ques-
tion of law over which this court has plenary review.’’
(Internal quotation marks omitted.) State v. Holley, 174
Conn. App. 488, 493–94, 167 A.3d 1000, cert. denied,
327 Conn. 907, 170 A.3d 3 (2017), cert. denied, U.S.
, 138 S. Ct. 1012, 200 L. Ed. 2d 275 (2018).
The defendant claims that the following requested
Guilbert factors were omitted or understated in the
jury instructions: ‘‘there is at best a weak correlation
between a witness’ confidence in his or her identifica-
tion and its accuracy’’; State v. Guilbert, supra, 306
Conn. 237; ‘‘identifications are likely to be less reliable
in the absence of a double-blind, sequential identifica-
tion procedure’’; ‘‘witnesses are prone to develop
unwarranted confidence in their identifications if they
are privy to postevent or postidentification information
about the event or the identification’’; and ‘‘the accuracy
of an eyewitness identification may be undermined by
unconscious transference, which occurs when a person
seen in one context is confused with a person seen in
another.’’ Id., 238–39. To the extent that the defendant
suggests that the Guilbert factors are required in the
jury instructions, we reject that argument. As an initial
matter, Guilbert concerned the admissibility of expert
testimony, not a challenge to jury instructions. Although
the court in Guilbert did acknowledge the ‘‘widespread
judicial recognition that eyewitness identifications are
potentially unreliable in a variety of ways unknown to
the average juror’’; (internal quotation marks omitted)
State v. Grant, 154 Conn. App. 293, 311, 112 A.3d 175
(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015);
it did not mandate that such factors be included in jury
instructions. See footnote 16 of this opinion. In fact, in
Guilbert, the court even noted that jury instructions
are less effective than expert testimony, stating that
‘‘research has revealed that jury instructions that direct
jurors in broad terms to exercise caution in evaluating
eyewitness identifications are less effective than expert
testimony in apprising the jury of the potential unrelia-
bility of eyewitness identification testimony.’’ State v.
Guilbert, supra, 245. The court in the present case
expressed its concern that, for the requested instruc-
tions to be provided in the charge, an expert, which
the defendant did not offer during the trial, would be
needed to explain eyewitness identification issues and
principles to the jury. It is undisputed that neither party
presented expert testimony at trial regarding such eye-
witness identification issues and principles.
Certainly, while the court is not required to tailor its
instructions to the exact request of a party for a specific
instruction, ‘‘broad, generalized instructions on eyewit-
ness identifications . . . do not suffice.’’ (Citations
omitted.) Id., 258. As set forth in the subsequent para-
graphs, we conclude that the substance of the defen-
dant’s requested instructions was given to the jury and
that the instructions were neither overbroad nor over-
generalized.
As to his claim regarding double-blind procedure,
the defendant requested the following language: ‘‘A law
enforcement officer who knows which photo is of the
suspect may intentionally or unintentionally convey
that knowledge to the witness. That increases the
chance that the witness will identify the suspect, even
if the suspect is innocent. For that reason, whenever
possible, photo arrays should be conducted by an offi-
cer who does not know the identity of the suspect. If
a police officer who does not know the suspect’s iden-
tity is not available, then the officer should not see the
photos as the witness looks at them. In this case, there
has been testimony that Detective Cooper knew the
identity of the suspect. It is also alleged that Detective
Cooper did not compensate for that by conducting a
procedure in which he did not see the photographs as
the witnesses looked at them.’’ (Footnote omitted.) The
court gave the following instruction: ‘‘A law enforce-
ment officer who knows which photo is of the suspect
may intentionally or unintentionally convey that knowl-
edge to the witness. . . . In this case, the identification
procedure utilized by Detective Cooper involved show-
ing all eight photographs at the same time in the array
to each witness. You may consider whether the witness
was comparing each photograph in the array to one
another or each photograph in the array to her own
memory in making an identification.’’ The jury also was
instructed that ‘‘[f]eedback occurs when police officers
signal to eyewitnesses that they correctly identified the
suspect. Feedback may be either verbal or nonverbal.
Feedback may reduce doubt and engender or produce
a false sense of confidence in a witness.’’ Thus, the
defendant’s requested instruction, in substance, was
given.17
As to the defendant’s claim regarding unconscious
transference, he did not include an instruction on
unconscious transference in his request to charge.18 He
did, however, ask for the court to include such an
instruction at the April 30, 2014 charging conference,
and again on May 1, 2014. The court did not include an
instruction on unconscious transference. The defen-
dant argues that this was error and that an instruction
on unconscious transference was necessary because
Lee testified that the defendant looked just like her
husband, and there were no experts to point out the
potential problems with unconscious transference. As
previously discussed in this opinion, the court in Guilb-
ert noted that ‘‘research has revealed that jury instruc-
tions that direct jurors in broad terms to exercise
caution in evaluating eyewitness identifications are less
effective than expert testimony in apprising the jury of
the potential unreliability of eyewitness identification
testimony.’’ State v. Guilbert, supra, 306 Conn. 245. No
experts testified in the present case, and the court
expressed its reluctance to instruct on scientific theo-
ries and studies where the defendant did not offer
expert testimony. The court did not err in omitting an
instruction on unconscious transference. There was no
evidence at trial to establish that unconscious transfer-
ence could be an issue for the jury to consider, and the
defendant provided no authority for the proposition
that such an instruction was required. The defendant
could have offered an expert to testify at trial as to
unconscious transference, but he did not do so.
As to the charge on eyewitness identification, the
differences in the defendant’s request to charge and the
jury instruction were minimal.19 The court did not use
the following requested language: ‘‘You may consider
that eyewitnesses are often not able to accurately recall
the source of their memories. In other words, their
belief that the identification was based on observations
at the time of the offense may be wrong. When a witness
makes an identification, that witness is expressing an
opinion that may be accurate or may be inaccurate.
. . . Eyewitness misidentification is the single greatest
source of wrongful convictions in the United States.’’
The court gave, in substance, what the defendant
requested by including in the instruction similar lan-
guage to what it omitted from his request, including
that ‘‘[e]yewitnesses can be truthful but mistaken. The
identifications must be analyzed critically. Human
memory is not foolproof. . . . [B]e advised that a [wit-
ness’] level of confidence, standing alone, may not be
an indication of the reliability of the identification.’’
The defendant also requested the following instruc-
tion regarding the impact of the passage of time on
memory: ‘‘Memories fade with time. As a result, delays
between the commission of a crime and the time an
identification is made can affect the reliability of the
identification. In other words, the more time that pas-
ses, the greater the possibility that a witness’s memory
of a perpetrator will weaken or be influenced by post-
event information.’’ The court omitted only the last sen-
tence of the request, which, again, was in substance
what the defendant requested.
We reiterate that the court, in its discretion, need ‘‘not
tailor its charge to the precise letter’’ of the defendant’s
request. (Internal quotation marks omitted.) State v.
Day, supra, 171 Conn. App. 831. ‘‘Significantly, our
Supreme Court in Guilbert emphasized that a trial court
retains the discretion to decide whether, under the spe-
cific facts and circumstances presented, focused and
informative jury instructions on eyewitness testimony
are warranted. . . . In reviewing the discretionary
determinations of a trial court, every reasonable pre-
sumption should be given in favor of the correctness of
the court’s ruling.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) State v. Faust, 161
Conn. App. 149, 189 n.11, 127 A.3d 1028 (2015), cert.
denied, 320 Conn. 914, 131 A.3d 252 (2016). The jury
instructions were correct in law, adapted to the issue
of eyewitness identification, and sufficient to guide the
jury. See State v. Day, supra, 832. Accordingly, the jury
instructions given by the court were not improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-134 (a) provides in relevant part that ‘‘[a] person
is guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (4) displays or threat-
ens the use of what he represents by his words or conduct to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm . . . .’’
2
General Statutes (Rev. to 2007) § 53a-124 (a) provides that ‘‘[a] person
is guilty of larceny in the third degree when he commits larceny as defined
in section 53a-119 and . . . (2) the value of the property or service exceeds
one thousand dollars . . . .’’ All references herein to § 53a-124 refer to the
2007 revision of the statute, the revision in effect on the date of the crimes.
3
The defendant also asserted in his motion to dismiss that the arrest
warrant application contained multiple misrepresentations and material
omissions that entitled him to a dismissal pursuant to Practice Book § 41-
8 (1) and (9). The defendant has not challenged on appeal the court’s
dismissal of this claim.
4
The defendant pleaded guilty to seven counts of robbery in Massachu-
setts, and he was sentenced on July 23, 2010, to ten to twelve years of incar-
ceration.
5
In that letter, the defendant stated, in relevant part: ‘‘Now comes Darren
Crosby, the defendant acting pro-se in the above captioned matter, and
respectfully moves the Honorable Court, pursuant to Rule 36, Mass. R. Crim.
P., to schedule a trial or other disposition in this action without further
delay. The defendant is presently incarcerated within the Massachusetts
Department of Correction at MCI Cedar Junction Walpole.’’
6
We note that the defendant did not pursue a claim that his right to be
brought to trial within 180 days of notice of the detainer was violated and
explicitly waived such a claim before the trial court.
7
Specifically, the court noted that ‘‘[t]he defendant contends that the
delay in his case adversely affected him personally by creating prolonged
angst and uncertainty as to the outstanding charges and their effect on his
term of imprisonment in Massachusetts. Although the uncertainty sur-
rounding pending charges may surely generate feelings of anxiety, the defen-
dant failed to provide any direct evidence that he suffered in this way. . . .
The defendant also failed to introduce any evidence regarding the effect, if
any, the pending Connecticut charges had on the conditions of his physical
incarceration or on his ability to participate in rehabilitation programs while
incarcerated in Massachusetts. As for the defendant’s claims that the fading
memories of the witnesses were exacerbated by the delay, [r]elying on the
simple passage of time, cannot, without a more specific showing, be said
to prejudice the defendant any more than the state. As the time between
the commission of the crime and trial lengthens, witnesses may become
unavailable or their memories may fade. If the witnesses support the prosecu-
tion, its case will be weakened, sometimes seriously so. And it is the prosecu-
tion which carries the burden of proof. . . . Finally, the defendant again
asserts that the delay hampered his defense due to the change in his appear-
ance from the date of the offense to the time of trial. The court has already
addressed that aspect of the defendant’s prejudice claim and has determined
it is unsupported by the evidence.’’ (Citations omitted; internal quotation
marks omitted.)
8
The defendant cites to State v. Soldi, 92 Conn. App. 849, 857, 887 A.2d
436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006), for the proposition
that ‘‘once a defendant puts forth evidence to suggest that [he] was not
elusive, was available and was readily approachable, the burden shifts to
the state to prove that the delay in executing the warrant was not unreason-
able.’’ As the trial court indicated in its memorandum of decision, however,
Soldi is inapplicable to the present case.
The decision in Soldi and subsequent cases citing Soldi make clear that
this burden shifting rule applies in the context either of a warrant for
violation of probation or a warrant executed outside of the statute of limita-
tions. See, e.g., State v. Swebilius, 325 Conn. 793, 803–804, 159 A.3d 1099
(2017) (warrant executed outside statute of limitations period); State v.
Woodtke, 130 Conn. App. 734, 736, 25 A.3d 699 (2011) (same); State v.
Pittman, 123 Conn. App. 774, 775, 3 A.3d 137 (delay in executing warrant
charging defendant with violation of probation), cert. denied, 299 Conn.
914, 10 A.3d 530 (2010). Neither of those circumstances is present in this
case, as the arrest warrant was not for a violation of probation, and the
warrant was executed within the five year statute of limitations. See footnote
10 of this opinion.
Instead, the defendant has the burden of establishing ‘‘both that actual
substantial prejudice resulted from the delay and that the reasons for the
delay were wholly unjustifiable, as where the state seeks to gain a tactical
advantage over the defendant.’’ (Internal quotation marks omitted.) State
v. John, supra, 210 Conn. 685–86; see also Slater v. Commissioner of Correc-
tion, supra, 158 Conn. App. 536–37 (applying two-pronged test set forth in
John); State v. Santos, 108 Conn. App. 250, 263, 947 A.2d 414 (2008) (‘‘[t]he
law is quite clear that [i]n order to establish a due process violation because
of pre-accusation delay, the defendant must show both that actual substantial
prejudice resulted from the delay and that the reasons for the delay were
wholly unjustifiable, as where the state seeks to gain a tactical advantage
over the defendant’’ [internal quotation marks omitted]).
9
We also reject the defendant’s claim that the delay resulted in actual,
substantial prejudice because ‘‘McVey’s and Lee’s identifications of the
defendant were the only evidence in the case that placed the defendant in
the Webster Bank during the robbery’’ and their lack of memory at trial
impacted the defense. This argument ignores the fact that there was other
evidence presented at trial from which the jury could determine the defen-
dant’s guilt, including surveillance photographs of the defendant on the day
of the robbery at the bank and at another bank where he was dressed in
the same attire. Evidence of the defendant’s guilty plea to a robbery in East
Longmeadow, Massachusetts, was not admitted at trial; thus, the jury was
told that the images from the East Longmeadow bank were from a commer-
cial establishment. The jury reviewed these photographs during its deliber-
ations.
10
As the court noted in its memorandum of decision, ‘‘[t]here is a five
year statute of limitations for the offenses charged in the defendant’s case.
. . . The Webster Bank robbery occurred on December 18, 2008. The defen-
dant was arrested on November 6, 2013—which is within the five year
limitation period. Thus, the defendant had adequate protections against the
disadvantages to an accused attending stale prosecutions . . . .’’ (Citations
omitted; internal quotation marks omitted.)
11
Because we conclude that the first prong of John has not been satisfied,
we need not consider whether the state’s delay was wholly unjustifiable
under the second prong of John. See State v. John, supra, 210 Conn. 685–86.
12
‘‘ ‘Filler’ means either a person or a photograph of a person who is not
suspected of an offense and is included in an identification procedure.’’
General Statutes § 54-1p (a) (5).
13
At trial, the following examination took place:
‘‘[Defense Counsel]: Now, you knew the individual that had—the perpetra-
tor, the individual who robbed you, had a relatively thin apparent face,
correct? Long and narrow?
‘‘[McVey]: I would say it was the eyes.
‘‘[Defense Counsel]: Well, you knew the face was long and narrow, right?
‘‘[McVey]: Okay. Yes.
‘‘[Defense Counsel]: Okay. All right. Let’s—let’s look at the array. You
said you looked through all the pictures, right?
‘‘[McVey]: Yes.
‘‘[Defense Counsel]: Okay. Showing you what’s been admitted as state’s
[exhibit] 11. Excuse me while I get my copy. So, there—the person, in
number one, his face isn’t exactly long and narrow, is it?
‘‘[McVey]: No.
‘‘[Defense Counsel]: Okay. And you look at—you looked at all these,
you said?
‘‘[McVey]: I did.
‘‘[Defense Counsel]: Okay. Number two, he’s a little on the young side,
right?
‘‘[McVey]: I guess.
‘‘[Defense Counsel]: Okay. Do you remember giving a sort of age descrip-
tion of the person?
‘‘[McVey]: No.
‘‘[Defense Counsel]: Okay. Number three, we’ve already talked about,
right?
‘‘[McVey]: Yes.
‘‘[Defense Counsel]: Number four, he’s a little too light skin and his face
is wrong, right?
‘‘[McVey]: Yes.
‘‘[Defense Counsel]: Okay. And number five, he might be the right complex-
ion, but his face is wrong, too, right?
‘‘[McVey]: Right.
‘‘[Defense Counsel]: Number six, his face is long and narrow, right?
‘‘[McVey]: Correct.
‘‘[Defense Counsel]: But his complexion is a little on the light side from
what you saw, right?
‘‘[McVey]: It has nothing to do with the complexion.
‘‘[Defense Counsel]: I understand. But he’s fairly—
‘‘[McVey]: It was the eyes.
‘‘[Defense Counsel]: I understand that’s your testimony—
‘‘[McVey]: Uh-huh.
‘‘[Defense Counsel]: —please answer my question.
‘‘[McVey]: Okay.
‘‘[Defense Counsel]: Number seven, again, face is wrong, right?
‘‘[McVey]: Uh-huh.
‘‘[Defense Counsel]: And number eight, again, sort of long and narrow,
but, again, a little bit light—more lightly reflected than number three, right?
‘‘[McVey]: Correct.’’
14
‘‘A double-blind photographic identification procedure is one in which
the officer conducting [the procedure] has not been involved in the investiga-
tion and does not know who the target is.’’ (Internal quotation marks omit-
ted.) State v. Patterson, 170 Conn. App. 768, 772 n.1, 156 A.3d 66, cert.
denied, 325 Conn. 910, 158 A.3d 320 (2017). Because Cooper knew that the
defendant was a suspect when he presented the photographic array to the
witnesses, the procedure was not double-blind.
‘‘A sequential photographic identification procedure involve[s] showing
the witness the suspect and other fillers on the identification procedure one
at a time, rather than the traditional practice of simultaneous presentation.’’
(Internal quotation marks omitted.) Id., 772 n.2. Because eight photographs
were presented to the witnesses simultaneously, the procedure was not
sequential.
15
General Statutes § 54-1p (c) provides in relevant part that ‘‘[n]ot later
than May 1, 2013, each municipal police department and the Department
of Emergency Services and Public Protection shall adopt procedures for
the conducting of photo lineups . . . that comply with the following require-
ments: (1) Whenever a specific person is suspected as the perpetrator of an
offense, the photographs included in a photo lineup . . . shall be presented
sequentially so that the eyewitness views one photograph . . . at a time
. . . (2) The identification procedure shall be conducted in such a manner
that the person conducting the procedure does not know which person in
the photo lineup . . . is suspected as the perpetrator of the offense, except
that, if it is not practicable to conduct a photo lineup in such a manner, the
photo lineup shall be conducted by the use of a folder shuffle method,
computer program or other comparable method so that the person conduct-
ing the procedure does not know which photograph the eyewitness is view-
ing during the procedure . . . .’’
16
We also are not persuaded by the defendant’s reliance on Guilbert for
the proposition that ‘‘identifications are likely to be less reliable in the
absence of a double-blind, sequential identification procedure . . . .’’ State
v. Guilbert, 306 Conn. 218, 238 n.39, 49 A.3d 705 (2012). This court previously
has corrected a defendant’s statement that Guilbert stands for such a propo-
sition, noting that ‘‘[t]he principal issue before the court in Guilbert was
not whether any particular identification procedures are constitutionally
mandated, but whether courts are obligated to admit under specified circum-
stances qualified expert testimony concerning the fallibility of eyewitness
identification under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en
banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),
to aid juries in their evaluation of identification evidence. . . . The court
in Guilbert acknowledged ‘widespread judicial recognition that eyewitness
identifications are potentially unreliable in a variety of ways unknown to
the average juror. . . .’ In particular, the court mentioned that ‘[c]ourts
across the country now accept that [among other things] . . . identifica-
tions are likely to be less reliable in the absence of a double-blind, sequential
identification procedure . . . .’ (Citations omitted.) State v. Grant, 154
Conn. App. 293, 311, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109
A.3d 923 (2015).
‘‘Nothing in Guilbert, however, suggests that if the police show the photo-
graphs to the witness simultaneously and the procedure is administered
by an officer who knows the identity of the suspect, the procedure is
unnecessarily suggestive as a matter of law. In ruling that experts in appro-
priate circumstances should be allowed to testify about issues that may
affect the accuracy of identifications, the court was not concerned with
the admissibility of identification evidence, but rather with a jury’s proper
exercise of its duty to evaluate the weight to be given to a particular eyewit-
ness’ identification.’’ (Emphasis added and omitted.) Id.
17
Despite the fact that the charge was in substance given, the defendant
argues that the double-blind instruction ‘‘does not further instruct [on] the
desirability of the ‘double-blind’ procedure . . . .’’ The court explained that
it excluded such language because it determined that it was prejudicial to
the state. The court expressed its concern that a double-blind procedure
was not required in 2009 and that, to include the defendant’s requested
language, the jury may assume that Cooper employed the wrong procedure.
See State v. Johnson, supra, 149 Conn. App. 821; see also State v. Grant,
supra, 154 Conn. App. 311. We reiterate that the court’s instructions must
‘‘fairly and adequately present the case to a jury in such a way that injustice
is not done to either party under the established rules of law.’’ (Emphasis
added; internal quotation marks omitted.) State v. Day, supra, 171 Conn.
App. 831.
18
‘‘[U]nconscious transference . . . occurs when a person seen in one
context is confused with a person seen in another.’’ State v. Guilbert, supra,
306 Conn. 253–54.
19
In his request to charge, the defendant requested the following language:
‘‘It is your function to determine whether the witnesses’ identifications of
the defendant are reliable and believable, or whether they are based on a
mistake or for any reason are not worthy of belief. You may consider that
eyewitnesses are often not able to accurately recall the source of their
memories. In other words, their belief that the identification was based on
observations at the time of the offense may be wrong. When a witness
makes an identification, that witness is expressing an opinion that may be
accurate or may be inaccurate. Eyewitnesses can be truthful but mistaken.
Eyewitness misidentification is the single greatest source of wrongful convic-
tions in the United States. Even where a witness believes that his or her
testimony is accurate, it is your function to determine whether the witness’
identification of the defendant is reliable, or whether it is based on a mistake
or for any reason is not worthy of belief.
‘‘Human memory is not foolproof. Research has revealed that human
memory is not like a video recording that a witness need only replay to
remember what happened. Memory is far more complex. The process of
remembering consists of three stages: acquisition—the perception of the
original event; retention—the period of time that passes between the event
and the eventual recollection of a piece of information; and retrieval—the
state during which a person recalls stored information. At each of these
stages, memory can be affected by a variety of factors.
‘‘Relying on some of the research that has been done, I will instruct you
on specific factors you should consider in this case in determining whether
the eyewitness identification evidence is reliable. In evaluating these identifi-
cations, you should consider the observations and perceptions on which
each identification was based, the witnesses’ ability to make those observa-
tions and perceive events, and the circumstances under which the identifica-
tions were made. Although nothing may appear more convincing than a
witness’ categorical identification of a perpetrator, you must critically ana-
lyze such testimony. Such identifications, even if made in good faith, may
be mistaken. Therefore, when analyzing such testimony, be advised that a
witness’ level of confidence, standing alone, may not be an indication of
the reliability of the identification.’’ (Footnotes omitted.)