State v. Day

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STATE OF CONNECTICUT v. ROBERT DAY
(AC 36834)
Sheldon, Keller and Foti, Js.
Argued September 12, 2016—officially released March 28, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Crawford, J.)
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Don E. Therkildsen, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Robert Day, appeals
from the judgment of conviction that was rendered
against him after a bifurcated trial in the judicial district
of Waterbury upon the verdict of a jury finding him
guilty of assault of an elderly person in the first degree
in violation of General Statutes § 53a-59a (a) (1), and
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (2), and the separate decision of the trial court
finding him guilty of criminal possession of a firearm
in violation of General Statutes § 53a-217 (a) (1). The
defendant’s principal claims on appeal concern the
state’s use against him in that trial of eyewitness identifi-
cation testimony from the two victims of the charged
offenses, both of whom identified him as the perpe-
trator.
The defendant first claims that the court violated his
state and federal constitutional rights not to be deprived
of his liberty without due process of law by denying
his pretrial motions to suppress the victims’ out-of-court
and in-court identifications of him as the perpetrator
of the charged offenses. He argues that the challenged
identifications should have been suppressed as the
unreliable products of unnecessarily suggestive pretrial
identification procedures which were used by the state
to obtain and reinforce those identifications. Although
we agree with the defendant that the procedures by
which the state obtained and later bolstered the victims’
confidence in their challenged identifications were
unnecessarily suggestive, we conclude that such identi-
fications were not rendered so unreliable by those sug-
gestive procedures as to make them constitutionally
inadmissible at trial. We therefore conclude that the
court did not err by denying the defendant’s pretrial
motions to suppress such identifications.
The defendant also claims, however, that even if the
challenged identifications were properly admitted
against him at trial, the court committed two other
errors that materially affected the jury’s ability to make
a proper assessment of the reliability of such identifica-
tions when conducting its deliberations. First, he claims
that the court erred by precluding expert testimony
from Dr. Steven Penrod, a qualified expert witness on
the subject of eyewitness identification, as to certain
aspects of the photographic identification procedures
that were used to obtain the victims’ identifications
of the defendant in this case that are well known by
scientific researchers to decrease the reliability of eye-
witness identifications resulting from their use. Second,
he claims that the court erred by failing to instruct the
jury, in accordance with his timely request to charge,
that it could properly consider those reliability factors
and several others about which Penrod did testify
before the jury as scientifically valid bases for ques-
tioning the reliability of the victims’ identification testi-
mony in this case. Although we agree with the defendant
that the court erred in precluding his expert from testi-
fying as to the tendency of certain aspects of the identifi-
cation procedures used in this case to produce
unreliable eyewitness identifications, we cannot con-
clude that the limited preclusion of such testimony sub-
stantially affected the jury’s verdict. We reject the
defendant’s claim that the court erred by failing to
instruct the jury on the subject of eyewitness identifica-
tions in accordance with his request to charge. Accord-
ingly, we affirm the judgment of the trial court.1
The following facts and procedural history are rele-
vant to the defendant’s claims on appeal. At approxi-
mately 2 p.m. on August 22, 2012, as sixty-three year
old Frank Pereira and his sixty year old wife, Gisele
Pereira, were standing behind the counter of Pereira’s
Package Store, which they owned and operated in
Waterbury, they saw an African-American man coming
from the direction of the store’s side parking lot walk
past the store’s front window to its front door. The man
initially caught their attention because, although it was
a hot and sunny summer day with the temperature in
the 80s, he was wearing a hoodie with the hood pulled
up over his head. When the man reached the front door,
he opened it, entered the store, and walked directly to
the counter behind which the Pereiras were standing.
As he did so, walking a distance of no more than six
feet, the Pereiras both asked him how they could help
him, but he did not answer. Instead, he strode silently
to the counter and, upon reaching it, started to walk
around it toward the Pereiras. As that began to happen,
Frank Pereira saw that the man was holding a gun in
his hand, apparently a revolver, and so he drew his
own gun. Gisele Pereira, who also saw the man’s gun,
immediately ducked down behind the counter upon
seeing it and closed her eyes. The man responded to
Frank Pereira’s defensive gesture by telling him to put
down his gun. When Frank Pereira did not do so, the
man shot him in the shoulder, then fired several more
shots around the store before running out the front
door without taking anything. As the man fled, Frank
Pereira also ducked down behind some cases of wine
while Gisele Pereira, who had crawled to the telephone,
called 911. When an ambulance responded to the scene
in response to the 911 call, Frank Pereira was taken to
the hospital to be treated for his gunshot wound.
Officer John Stadalink, of the Waterbury Police
Department, was the first officer to respond to the scene
after the 911 call came in. Upon his arrival, he first spoke
to Gisele Pereira, who briefly described the person who
had entered the store and shot her husband as a black
male wearing a brown jacket with the hood pulled up
over his head. Gisele Pereira was later taken to the
hospital to be treated for a loss of hearing caused by
the gunshots that had been fired in her presence during
the incident.
Michael Debarba was driving by Pereira’s Package
Store at approximately 2:15 p.m. on August 22, 2012,
when he saw a black man with a bushy black beard
that appeared to be fake walking in front of the store.
The man was wearing sunglasses and a hooded
sweatshirt with the hood pulled up. At the time of that
observation, Debarba also saw a vehicle with a faded
dark blue paint job, that he guessed to be a Ford
Explorer, possibly manufactured in 2000, in the store’s
parking lot. He recalled that a light-skinned black
woman wearing a tank top was sitting in the Ford
Explorer at that time.
Frederick Toupin was also in the vicinity of Pereira’s
Package Store at about 2:15 p.m. on August 22, 2012,
when, while stopped at a nearby traffic light, he saw a
man exit the store and run around the corner to its side
parking lot. Toupin recalled that the man, who had dark
skin, was wearing a dark hooded sweatshirt with the
hood pulled up and baggy pants that he held onto with
one hand as he ran. Toupin did not see anything in the
man’s hands. A couple of seconds after he saw the man
run around to the side of the store, Toupin saw a blue
Ford Explorer from what he believed to be the middle
to late 1990s pull out of the parking lot. He described
the vehicle as dark blue in color, with faded paint on
the top and a ‘‘grey bumperish plastic molding’’ on ‘‘[t]he
bottom.’’ Toupin saw only one person in the vehicle as
it was being driven out of the parking lot.
On August 24, 2012, the Pereiras went together to
the Waterbury Police Department to give statements
about the incident. Upon their arrival, they were placed
in separate rooms, where they were interviewed by
different officers, to whom they gave written statements
about the incident. Gisele Pereira told the officer who
interviewed her, Sergeant John Nappiello, that the man
who had entered the store and shot her husband was
a dark-skinned black male with a scruffy beard in his
late twenties or early thirties, who stood approximately
six feet tall and was wearing a brown hoodie with white
writing on the front, dark colored pants and a large
pair of dark sunglasses. Frank Pereira told the officer
who interviewed him, Detective Shane Laferriere, that
the man who had shot him was a black male in his
thirties with a medium build, who stood approximately
six feet tall, had a scraggly beard, and wore sunglasses
and a burgundy-colored sweatshirt that was pulled up
over his head.
A few days after the August 22, 2012 incident, the
Waterbury police received an anonymous tip that the
defendant had committed the attempted robbery and
assault at Pereira’s Package Store using a vehicle that
belonged to his girlfriend, Keturah Walton.2 Based on
that tip, Laferriere, who had been appointed as lead
investigator on the case, obtained a photograph of the
defendant from the database of the Department of Cor-
rection (DOC), modified it to adjust its unusual back-
ground color and used it, together with seven other
photographs from his own department, to compile two
arrays of eight photographs each to show to the
Pereiras.3
One week after the incident, on August 29, 2012, the
Pereiras were asked to return to the police department
to look at some photographs. On that occasion, as when
they first went to the department to be interviewed,
they arrived together but were separated upon their
arrival to speak with different detectives. Gisele Pereira
met on this occasion with Laferriere, while Frank Per-
eira met with Detective David McKnight. Each victim
was asked at the outset of his or her interview to review
and initial a document entitled ‘‘witness instructions
for photo identification.’’4 Then each was shown one
of the two arrays that Laferriere had compiled. Both
Pereiras ultimately selected the defendant’s modified
DOC photograph as that of the man who had entered
their store and shot Frank Pereira on August 22, 2012.
After identifying the defendant, each victim was told
by the detective who showed him or her the array that
the person in the photograph he or she had selected
was a man named Robert Day.
After the Pereiras had identified the defendant as the
perpetrator, Laferriere called Walton into the police
department for an interview. Walton confirmed in that
interview that she owned a dark-colored 2000 Ford
Explorer which she occasionally let the defendant use.
She also informed the police that she had let the defen-
dant use that vehicle on the afternoon of August 22,
2012. Walton then signed a consent form allowing the
police to search both her home and her vehicle. In
later searching Walton’s home, the police found the
defendant’s identification card, his duffle bag and his
suitcase. Inside the duffle bag, they found a gun holster
that was stretched out at the top in a manner that one
state’s witness claimed, over defense objection, to be
consistent with having been used to hold a revolver.
On August 31, 2012, two days after the Pereiras
selected the defendant’s photograph from their respec-
tive photographic arrays, the defendant was arrested
on charges of assault of an elderly person in the first
degree, attempted robbery in the first degree and crimi-
nal possession of a firearm. When he was taken to the
Waterbury Police Department for processing after his
arrest, a new booking photograph was taken of him,
which listed both his name and the date of his arrest,
August 31, 2012.
Before the case was scheduled for trial, the defendant
moved to suppress the Pereiras’ out-of-court and antici-
pated in-court identifications of him on grounds that
both the composition of the photographic arrays from
which they had selected his modified DOC photograph
and the manner in which those arrays had been shown
to them were so unnecessarily suggestive as to make
their resulting identifications too unreliable to be con-
stitutionally admissible against him at trial. That
motion, as twice supplemented by later motions to sup-
press challenging other aspects of the state’s pretrial
investigation and trial preparation procedures that
allegedly tainted the victims’ identification testimony,
was denied by the court after an evidentiary hearing.
In the subsequent trial, as previously noted, the defen-
dant was found guilty by a jury of assault of an elderly
person in the first degree and attempted robbery in the
first degree, and found guilty by the court of criminal
possession of a firearm. The defendant was later sen-
tenced on all such charges to a total effective term of
thirty years in prison. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant’s first claim on appeal is that the trial
court violated his state and federal constitutional rights
not to be deprived of his liberty without due process
of law by denying his pretrial motions to suppress all
testimony by the Pereiras identifying him as the perpe-
trator of the charged offenses. The following additional
facts and procedural history are relevant to this claim.
The defendant initially moved to suppress the Per-
eiras’ identification testimony on October 15, 2012,
claiming that both their out-of-court and their antici-
pated in-court identifications of him were unreliable
products of unnecessarily suggestive pretrial identifica-
tion procedures that had been used by the detectives
who investigated this case. Thereafter, on November
20, 2013, the defendant filed his first supplemental
motion to suppress all eyewitness identification testi-
mony against him by the Pereiras. In support of that
motion, the defendant argued as follows: ‘‘The arrays
used by the police did not consist of eight similar look-
ing or similar[ly] attired individuals. There existed a
distinct lack of similarity in the facial hair, head hair
and features of the individuals and were inconsistent
with the description of the perpetrator [by the wit-
nesses].’’ The defendant further argued that, ‘‘The pro-
cedure was neither double blind nor sequential and was
unduly suggestive. The taint of the illegality requires the
suppression of any subsequent in-court identification as
well as the out-of-court identification.’’
Thereafter, on November 24, 2013, shortly before the
scheduled start of the suppression hearing, the Pereiras
met alone with Assistant State’s Attorney Don E. Ther-
kildsen, Jr., in his office. In that meeting, Therkildsen
first questioned the victims together about their recol-
lections of the incident on August 22, 2012, and their
descriptions of the perpetrator. Then he showed them
the two photographic arrays from which they had sepa-
rately selected the defendant’s photograph on August
29, 2012. Finally he showed them a single photograph
of the defendant bearing the caption, ‘‘Robert Day mugs-
hot 8/31/2012, 16:12.’’
Three days later, the court began an evidentiary hear-
ing on the defendant’s pending motions to suppress at
which both Pereiras and several of the officers who
interviewed them testified. Frank Pereira testified that
the man who had shot him was a dark-skinned black
man with thick lips and a scruffy or scraggly beard. He
agreed with defense counsel that the man’s beard was
‘‘full,’’ in the sense that it was growing over his entire
face, it included a mustache, and it came ‘‘down below
the neck.’’ Frank Pereira agreed with defense counsel’s
description of the perpetrator’s facial hair as ‘‘just com-
ing in,’’ and Frank Pereira then explained that ‘‘[i]t
appeared to me that he hadn’t been shaving for days.’’
He testified that he had observed the perpetrator from
the side for a matter of seconds while the perpetrator
was outside of the store, walking past its front window
toward the door. When so viewing the man, he recalled,
the man’s ‘‘face was covered with the hood somewhat
. . . .’’ Frank Pereira further testified that during his
brief confrontation with the man inside the store, he
had been within six feet of the man, who was then
wearing sunglasses and a dark hoodie, possibly maroon
in color, with the hood pulled up over his head. When
asked to describe the man’s nose or neck or other
features of his face or hands, Frank Pereira testified
that he could not do so.
Frank Pereira testified that before he selected the
defendant’s photograph from the photographic array,
he studied the array for ‘‘quite a while.’’ In so doing,
he recalled, he used a process of elimination to narrow
down the number of photographs to focus on. He was
able to eliminate two or three of the photographs right
away because ‘‘they just didn’t come close to what . . .
I remember.’’ In examining the other photographs, he
recalled that he had focused on the features that he
had been able to see during the attempted robbery,
such as the man’s cheeks and lips. After he chose the
defendant’s photograph, he recalled circling it and ini-
tialing it, then giving another written statement to the
detective. In that statement, he stated that he recog-
nized the man in the photograph on the basis of his
build, his facial features and his skin complexion. Later
in his testimony, however, he acknowledged that, ‘‘The
photograph that I circled had very poor lighting. It gave
the appearance that his complexion was lighter than it
actually was. I did see on another photograph after-
ward—that photograph that I saw afterward, the com-
plexion was darker.’’ He then added, ‘‘As far as his
complexion, it was not—that was not similar. What
was similar is his features.’’ Frank Pereira ultimately
conceded that he may have been mistaken when he
said in his written statement that he had chosen the
defendant’s photograph from the array on the basis of
his skin complexion.5 As the Pereiras were leaving the
police station on the date they viewed the photographic
arrays, they were told that they had identified the same
person, a man named Robert Day.
McKnight confirmed generally what Frank Pereira
had stated in his testimony at the suppression hearing
about the photographic identification procedure that
McKnight had conducted with him on August 29, 2012.
He further recalled that at the end of that procedure,
in which Frank Pereira had taken about five minutes
to examine the array before selecting the defendant’s
photograph from it, Frank Pereira had stated that he
was very confident in his identification of the defendant.
Frank Pereira also testified that he later saw a differ-
ent photograph of the defendant in the newspaper that
was different from the one he had selected from the
array. As shown in the newspaper photograph, he
recalled, the defendant ‘‘looked like [he] had [a] darker
complexion’’ than in the photograph he had selected
from the array. Frank Pereira also testified that the skin
complexion of the defendant, as it appeared in the mug
shot he was shown by the state’s attorney on November
24, 2013, was more similar to that of the man who had
shot him than that of the man in the photograph he had
selected from the array.6
At the suppression hearing, Gisele Pereira testified
that the man who entered the store and shot her hus-
band on August 22, 2012, was wearing a ‘‘beige, light,
like a tan’’ hooded sweatshirt with lighter colored
embroidery on it. The hood of the sweatshirt was pulled
up over his head, and he was wearing large sunglasses
with dark lenses. She testified that the man was approxi-
mately five feet, ten inches tall, with a medium build,
a broad nose and very thick lips. He had a dark full
beard, she recalled, in that his face was unshaven, with
what could have been ‘‘a few days’’ of growth that was
‘‘a little bit curly.’’ She stated that the man was African-
American, with ‘‘medium black skin, brown.’’ She testi-
fied that the time from when she first saw the man
walking into the store until he approached the counter
and shot her husband was ‘‘very short.’’ When the man
pulled his gun, she recalled ducking down to the floor
behind the counter and closing her eyes. When the
shooting stopped, she said, she crawled to the telephone
to call for help. She did not go to the hospital in the
ambulance with her husband, but was taken there
shortly thereafter by two detectives. Prior to going to
the hospital, she gave the police a general description
of the perpetrator. Although the scene was very chaotic
when she spoke to the police just after the attempted
robbery, and thus she could not recall exactly what she
told the officer who spoke to her at that time, she
testified that an accurate description she could then
have given was of a man who was ‘‘medium built, about
five feet, ten inches [tall], [with a] dark complexion,
[and] wearing a hooded sweatshirt with writing on it
. . . .’’
Gisele Pereira further testified that on August 29,
2012, she and her husband went to the police depart-
ment to look at photographs to try to identify the perpe-
trator. Upon arriving, they were separated from one
another and she met separately with Laferriere. After
reading and signing a page of instructions, she was
shown a single sheet of paper with eight photographs
on it. She recalled examining those photographs for ten
to fifteen minutes before making an identification. She,
like her husband, recalled approaching the task of mak-
ing an identification by using a process of elimination.
In so doing, she found that she could immediately elimi-
nate three or four of the photographs because they
appeared to be of Hispanics, and thus did not fit her
description or recollection of the perpetrator. She
stated that, ‘‘When I gave the description to the police
it was what I saw in the store, it’s like it froze, a frame
froze right there.’’
Concerning the array, Gisele Pereira recalled that,
‘‘[In] one picture in particular, the lighting wasn’t the
same color as the other one[s], so I just, you know,
kind of looked back at it and tried to make adjustment
in my mind as a photograph—photographer would do,
you know, have different angles and so . . . .’’ Because
the lighting was ‘‘off’’ in that photograph, she stated,
the person’s skin did not look as dark as the perpetra-
tor’s, as she had remembered it. She said that she was
focusing primarily on the noses and mouths of the men
in the photographs because those were the features of
the perpetrator she ‘‘was staring at when this individual
came in.’’ She identified the man in the lighter colored
photograph, the defendant, as the man who had shot
her husband and said she was very confident in her
identification of that man.7
Laferriere testified at the suppression hearing that
he had responded to the Pereiras’ store on the report
of a shooting on August 22, 2012. He testified that he
did not speak with either of the victims on that day
because they had both been taken to the hospital by
the time he arrived, and the first officer on the scene
had already done so. Laferriere learned that Gisele Per-
eira had told Stadalink that the man who had shot her
husband was a ‘‘black male wearing a hooded
sweatshirt with a beard and sunglasses.’’
Within a couple of days of the August 22, 2012 inci-
dent, Laferriere was assigned as lead detective on the
case. On August 24, 2012, Laferriere took the statement
of Frank Pereira, who described the man who had shot
him as ‘‘five foot, ten, to six foot, three, black male
with a medium build, scruffy beard and a rust colored
sweatshirt.’’ He testified that Frank Pereira told him that
the man’s beard was ‘‘poufy,’’ although that description
was not included in his written statement. Laferriere
testified that Nappiello had taken the statement of
Gisele Pereira on August 24, 2012. She then gave Nap-
piello the following description of the man who had
shot her husband: ‘‘Approximately six foot tall, darker
skinned black male, late twenties, early thirties, wearing
large sunglasses, scruffy beard and wearing a sweatshirt
. . . and . . . dark pants.’’
With those descriptions in mind, Laferriere began the
process of compiling a photographic array by inputting
certain descriptors into a computer program. Laferriere
testified that, when compiling an array, he typically
looks for photographs of persons with similar hair-
styles, facial features, face shapes, facial hair, and skin
tone, who are similarly lit and located in the photo-
graphs. He explained, ‘‘I put the [parameters], height,
weight, age, eye color and then it just generates . . .
[p]ictures that fall into that.’’ Laferriere stated that he
did not have the perpetrator’s eye color. As to complex-
ion, although he had received a description of a ‘‘darker
skinned’’ African-American male, he claimed that that
factor is not used in compiling an array, as ‘‘It just
falls under a black male.’’ The computer generates a
maximum of 250 photographs from which the investi-
gating officer can choose eight for an array. He chose
photographs that showed faces which, in his judgment,
looked similar to the defendant and to one another.
When asked if the photographs he had put in the arrays
matched the descriptive information that the victims
had provided in their statements, Laferriere reiterated
that, ‘‘The photo array wasn’t based on the information
that we received from those statements.’’ Instead, he
stated, they were based on the ‘‘anonymous tip stating
that [the defendant] was involved in this robbery.’’ Laf-
erriere thus obtained a photograph of the defendant
from the DOC to include in the array, but because the
background color of that photograph differed from
those in the database of his own police department,
the color of its background wall had to be changed ‘‘so
[it would not be] suggestive, because [if it were not]
his would have only been—the only wall that was a
different color.’’ The original photograph of the defen-
dant that was used by Laferriere in the photographic
array had been taken on December 19, 2008.
As for the arrays that he compiled for use in this
case, Laferriere testified that he believed that all of
the men shown in them looked similar to one another,
although he acknowledged that the lighting in the defen-
dant’s photograph was different from that in several of
the other photographs. Laferriere testified that the men
in all of the photographs had mustaches. When chal-
lenged on this claim with the suggestion that the defen-
dant was the only individual in the arrays without a
mustache, Laferriere indicated that he believed that it
did depict a mustache, as he ‘‘could see it going up
along the side of his face.’’ When asked specifically
whether the defendant had a mustache between the
nose and upper lip, he responded, ‘‘There’s hair there.
It might [not] be as thick as the others, but there’s hair
there.’’ Although the defendant had braids or cornrows
in his photograph that was used in the photographic
array, only two others in the array had similar braids.
When asked why all of the photographs did not depict
individuals with similar braids, Laferriere testified that
he could only find two others, out of up to 250 photo-
graphs that he examined, showing men who had braids
or ‘‘were even close to what he looked like.’’ Laferriere
testified that he did not ask the Pereiras to describe
the perpetrator’s nose, cheeks, lips, or shape of his
head. When asked why he had presented the photo-
graphic array simultaneously instead of sequentially, he
did not answer because the court sustained the state’s
objection to that question on the ground of relevance.
Prior to showing the witnesses the photographic
arrays on August 29, 2012, Laferriere did not ask them
to look at a mug shot book or to look at photographs
on a computer of people who fit the description they
had given earlier; nor did he ask them for additional
descriptive information about the perpetrator. Lafer-
riere testified that he called the Pereiras and asked
them to come to the police station on August 29, 2012,
to look at some photographs. He testified that he did
not tell them that they had a suspect. They arrived
at the station together, but were taken into separate
interview rooms. In one of those interview rooms, he
met on this occasion with Gisele Pereira, whose
description of the ensuing photographic identification
procedure he generally confirmed except in one perti-
nent detail. Unlike the witness herself, who testified
that she had examined the photographs for ten to fifteen
minutes before selecting the defendant’s photograph,
Laferriere recalled that she had examined them for a
minute at most before selecting the defendant’s photo-
graph and stating that she would never forget his face.
On December 2, 2013, the defendant filed a second
supplemental motion to suppress the Pereiras’ eyewit-
ness identifications of him as the perpetrator of the
charged offenses based principally upon new informa-
tion that had been developed in the suppression hearing
to that point. On the basis of such new information,
the defendant argued, inter alia, that the photographic
array compiled by Laferriere ‘‘was not based on the
descriptions of the shooter given by the eyewitnesses.
Instead . . . Laferriere compiled the array based on an
unsubstantiated confidential informant’s tip that [the
defendant] was alleged to have perpetrated the
offense.’’ The defendant also noted the differing testi-
mony of Laferriere and Gisele Pereira as to how long
it had taken her to identify the defendant from the
photographic array on August 29, 2012. The defendant
further argued that Therkildsen had violated rule 3.7 of
the Rules of Professional Conduct8 and General Statutes
§ 54-1p9 by meeting together with the Pereiras on
November 24, 2013, without the presence of an inspec-
tor, by discussing their earlier descriptions and identifi-
cations of the defendant in each other’s presence, and
by showing them the defendant’s mug shot in what he
claimed to have been a highly suggestive manner. The
defendant argued that such conduct by Therkildsen, a
state actor, had tainted all of the victims’ prior and
subsequent identifications of the defendant as the per-
petrator.
When the hearing on the motion to suppress resumed
on December 2, 2013, counsel for the defendant
announced his intention to call Therkildsen as a witness
to describe his private meeting with the Pereiras on
November 24, 2013. He argued that Therkildsen should
be disqualified as counsel for the state because he had
become an essential witness in the case by participating
in that meeting without the presence of other witnesses,
and showing the victims each other’s photographic
arrays and the defendant’s mug shot without any neces-
sity for so doing. The defendant argued that the showup
as to the mug shot, in particular, had caused Gisele
Pereira to add significant details to her description of
the perpetrator’s face, stating for the first time that the
man who had shot her husband had a wide nose and
thick lips. Frank Pereira, he contended, had ‘‘mim-
ic[ked]’’ his wife’s testimony as to those previously
unmentioned descriptive details.
The court treated the first portion of the defendant’s
second supplemental motion to suppress as a motion to
disqualify Therkildsen as counsel so that the defendant
could call him as a witness, and denied the motion.10
Thereafter, upon hearing arguments from counsel on
the merits of the motions to suppress, the court denied
those motions as well. In so doing, the court made the
following relevant factual findings. ‘‘Detective Lafer-
riere compiled the photo array. The photo of the defen-
dant was one from the Department of Correction and
included in the photo array. Including that photograph
is no different than if the officers, if the police depart-
ment itself had a photo of the defendant and based on
the information they had, they included the photo from
their file of the defendant in the array.
‘‘The question is whether the array is made up of
similar looking individuals and whether it’s unnecessar-
ily suggestive given the composition and the officer’s
conduct. In this instance, Mr. Pereira gave a description
of the person in the store, dark skin, unshaved with a
scruffy beard, six feet tall. He was within six feet of
the defendant. He described his clothing. He spoke to
him while in the store, and then he told him to stop
asking if he could help, but he also told him to stop as
he was coming around the boxes. He saw the defendant
draw the gun from his pocket, and he also told the
defendant to put the gun down. The store was well-lit,
and Mr. Pereira had also initially observed the defen-
dant outside the store. Defendant’s face was not cov-
ered, although he did describe the top that he was
wearing to have a hood, and it was over his face so
they could not see the hair.
‘‘The statement concerning the incident including the
description was given a few days after. Detective
McKnight administered the photo array to Mr. Pereira.
He gave him instructions concerning the array prior to
the identification being made, including informing him
that the person may or may not be there, that they
would continue to investigate regardless of whether he
identified someone, and the person may not look
exactly the same and it’s important that the innocent
be cleared.
‘‘Mr. Pereira testified that he did notice that there
was a difference in the photo in that the individual
appeared lighter; however, he took his time, he looked
at it. He also indicated that the neck was darker, and
he identified the defendant.
‘‘Detective Laferriere conducted a photo array with
Mrs. Pereira. She was given the same instructions. Her
statement was given few days after the incident, and
she had also observed the defendant while he was out-
side the store. Mrs. Pereira felt that something was up,
and she also felt that something was not right. And she
also inquired if she could help, given the nature of
the store; it is not self-serve. And when the officer
administered the array to each of them, again in addition
to giving the notice concerning the instructions con-
cerning the photo array, the officers did not talk to
them, inject themselves in any manner. So, under those
circumstances, where [the] description was given [a]
relatively short time after the photo array was put
together from photos that had been generated by the
computer, notice was given to each [witness] prior to
the identification, there was no input from the officers
administering the procedures. They were both con-
ducted separately, including the fact that the photo of
the defendant was not in the same position in each one.
And the defendant has the right to confront and cross-
examine the witness concerning any identification.
‘‘So, given the totality of the circumstances, the court
finds that the procedure was not unnecessarily sugges-
tive. But again, understanding that reasonable minds
may differ, the question is whether or not it would
still be reliable. And for all the reasons the court just
outlined in terms of the procedure, how it was con-
ducted, no input from the officers, and the composition
of being of seven other similarly looking males in terms
of what was described as a general description,
although the court finds there was a little bit more
information than just a general information. The court
finds that the identification procedure would still be
reliable.
‘‘Now, the second [issue] which arose after the filing
of the motion where the defendant is asking that [the]
Pereira[s] not be allowed to make an in-court [identifi-
cation] based on the fact that they had met with Attor-
ney Therkildsen and he had shown them a photograph,
a booking photograph of the defendant. It is not unusual
and would be remiss if a prosecutor does not meet and
interview witnesses prior to a hearing or prior to trial.
‘‘Again, any in-court identification is subject to cross-
examination. But in terms of what occurred, I think
there is a question as to whether or not it is a one on
one showup, although Mr. Therkildsen did show them
a photograph. However, they had already identified the
defendant, knew the defendant had been arrested and
also with the photo array and whatever appearances
that the defendant is challenging in terms of the appear-
ance of the defendant, they were each independently
able to identify the defendant. So, under those circum-
stances, the, I guess, the oral motion to not allow Mr.
and Mrs. Pereira to conduct an in-court [identification],
the motion to suppress identification in both instances
is denied.’’ From that ruling the defendant now appeals.
‘‘[T]he standard of review for a motion to suppress
is well settled. 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]hen a
question of fact is essential to the outcome of a particu-
lar legal determination that implicates a defendant’s
constitutional rights, [however] and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence.’’ (Internal quotation marks omit-
ted.) State v. Kendrick, 314 Conn. 212, 222, 100 A.3d
821 (2014). In contrast, ‘‘[when] the legal conclusions
of the court are challenged, [our review is plenary,
and] we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the court’s memorandum of decision
. . . .’’ (Internal quotation marks omitted.) State v.
Mitchell, 296 Conn. 449, 458, 996 A.2d 251 (2010).
‘‘In determining whether identification procedures
violate a defendant’s due process 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 totality of the circum-
stances. . . . 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 admissible. . . . [A]n out-of-court eyewitness identi-
fication should be excluded on the basis of the proce-
dure used to elicit that identification . . . 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.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Dickson, 322 Conn. 410, 420–22, 141 A.3d 810 (2016),
petition for cert. docketed (U.S. January 10, 2017) (No.
16-866).
‘‘The issue of whether an out-of-court identification
was unnecessarily suggestive involves a mixed question
of law and fact. State v. Marquez, 291 Conn. 122, 136,
967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237,
175 L. Ed. 2d 163 (2009). Accordingly, our review is
plenary. . . . Additionally, because the issue of the
suggestiveness of a photographic array implicates the
defendant’s constitutional right to due process, we
undertake a scrupulous examination of the record to
ascertain whether the findings are supported by sub-
stantial evidence. . . . In conducting our review of the
issue of reliability, we examine the legal question of
reliability with exceptionally close scrutiny and defer
less than we normally do to the related fact finding of
the trial court. . . .
‘‘[I]f we find that the court incorrectly permitted, as
reliable, evidence flowing from an unreliable and
unduly suggestive identification procedure, there
remains the further issue of whether the ensuing judg-
ment of conviction may be affirmed on the ground that
the due process violation was, nevertheless, harmless
in light of all the evidence correctly adduced at trial
and untainted by the admission of an unreliable identifi-
cation.’’ (Citations omitted; internal quotation marks
omitted.) State v. Artis, 136 Conn. App. 568, 588–89, 47
A.3d 419 (2012), rev’d on other grounds, 314 Conn. 131,
101 A.3d 915 (2014). With this general framework in
mind, we turn to the defendant’s claim that the eyewit-
ness identifications of him by the Pereiras should have
been suppressed because they were unnecessarily sug-
gestive and unreliable.
SUGGESTIVENESS
Our Supreme Court has explained that ‘‘a determina-
tion as to whether a particular identification procedure
is ‘unnecessarily suggestive’ must focus on the [follow-
ing] factors.’’ State v. Marquez, supra, 291 Conn. 144.
‘‘The first factor concerns the composition of the photo-
graphic array itself. In this regard, courts have analyzed
whether the photographs used were selected or dis-
played in such a manner as to emphasize or highlight
the individual whom the police believe is the suspect.
. . . The second factor, which is related to the first but
conceptually broader, requires the court to examine
the actions of law enforcement personnel to determine
whether the witness’ attention was directed to a suspect
because of police conduct. . . . In considering this
[factor, the court should] look to the effects of the
circumstances of the pretrial identification, not whether
law enforcement officers intended to prejudice the
defendant. . . . It stands to reason that police officers
administering a photographic identification procedure
have the potential to taint the process by drawing the
witness’ attention to a particular suspect. This could
occur either through the construction of the array itself
or through physical or verbal cues provided by an offi-
cer.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 142–44.
‘‘We consider the following nonexhaustive factors in
analyzing a photographic array for unnecessary sugges-
tiveness: (1) the degree of likeness shared by the indi-
viduals pictured . . . (2) the number of photographs
included in the array . . . (3) whether the suspect’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 multi-
ple arrays in which the photograph of one suspect
recurred repeatedly . . . and (6) whether a second
eyewitness was present during the presentation of the
array.’’ (Internal quotation marks omitted.) Id., 161.
In assessing the admissibility of an eyewitness identi-
fication, ‘‘[t]he critical question . . . is what makes a
particular identification procedure suggestive enough
to require the court to proceed to the second prong
and to consider the overall reliability of the identifica-
tion. . . . In deciding that question . . . the entire
procedure, viewed in light of the factual circumstances
of the individual case . . . must be examined to deter-
mine if a particular identification is tainted by unneces-
sary suggestiveness. The individual components of a
procedure cannot be examined piecemeal but must be
placed in their broader context to ascertain whether
the procedure is so suggestive that it requires the court
to consider the reliability of the identification itself
in order to determine whether it ultimately should be
suppressed.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Revels, 313 Conn. 762, 771–73,
99 A.3d 1130 (2014), cert. denied, U.S. , 135 S.
Ct. 1451, 191 L. Ed. 2d 404 (2015).
The defendant argues persuasively that the victims’
eyewitness identifications were unnecessarily sugges-
tive in several interrelated ways. First, he contends that
they were made from photographic arrays comprised
of photographs of men who, although they generally
matched the appearance of the defendant as he
appeared in the discolored, yellow-toned photograph
that Laferriere had obtained from the DOC, then
attempted to modify, they did not match the perpetrator
as the Pereiras had described him. Therefore, the com-
position of the array, which contained no photographs
of African-American men with dark complexions, natu-
rally caused the Pereiras to try making their identifica-
tions by a process of elimination, first removing from
consideration all photographs of persons who could
not possibly be the perpetrator, then refocusing on the
remaining photographs to decide which best fit that of
the perpetrator as they remembered him. This, of
course, narrowed the victims’ field of choice consider-
ably, for several men in the photographs, all of whom
had lighter skin than the perpetrator, appeared to be
Hispanic, and so were eliminated almost immediately.
Those photographs that remained in consideration after
the first group had been eliminated, moreover, were still
of men with lighter complexions than the perpetrator,
whom the witnesses had consistently described as an
African-American man with a dark complexion. This,
perversely, made the defendant’s artificially lightened
photograph, with its distinctly yellowish tone, the best
of the remaining candidates for selection because it
appeared to have been altered the most to make it
appear as it did in the array, thus suggesting that it had
started out darker than the others. In the latter phase
of the selection process, the witnesses’ attention was
admittedly drawn to the photograph of the defendant
because of its distinctive coloration. Understanding that
that photograph was of poor quality, both Pereiras stud-
ied it at length before ultimately selecting it as that of
the man who had attempted to rob them. Compiling
such a suggestive, narrowly focused array was not at
all necessary because the Pereiras’ very different
description of the perpetrator was well known to Lafer-
riere and his fellow officers, and they had hundreds of
photographs to choose from when compiling the array.
Because the array was compiled in this unorthodox
manner, unnecessarily using photographs that matched
the lighter skin of the defendant as he appeared in
his modified DOC photograph rather than the darker
complexion of the perpetrator as the witnesses had
described him, it ultimately directed the witnesses’
attention to the defendant, and as such was conducive
to misidentifying him as the perpetrator.
The defendant also claims, with good reason, that
the manner in which the faulty array was shown to
each victim was unnecessarily suggestive in two ways.
First, it was shown to each victim simultaneously rather
than sequentially, allowing each victim to compare each
photograph in the array to all the others before making
an identification. The risk arising from such a simultane-
ous showing of photographs to an eyewitness is that it
promotes the mistaken identification of innocent per-
sons by the exercise of relative judgment, whereby a
photograph is selected not because it matches the wit-
ness’ mental image of the perpetrator, but because it
comes closer to resembling his recollection of the per-
petrator than any other photograph in the array. State
v. Ledbetter, 275 Conn. 534, 572, 881 A.2d 290 (2005),
cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.
2d 537 (2006). Scientific researchers in the field of eye-
witness identification have so clearly established that
identifications resulting from simultaneous showings of
multiple photographs to eyewitnesses are less reliable
than identifications resulting from sequential showings
of individual photographs to them, where the exercise
of relative judgment is much more difficult, if not impos-
sible, for the witnesses to engage in, that testimony on
that subject from a qualified expert witness has been
held to be admissible at trial based upon a simple show-
ing of relevance in order to help jurors understand the
potential unreliability of identifications resulting from
simultaneous showings. See State v. Guilbert, 306 Conn.
218, 49 A.3d 705 (2012).
The photographic identification procedures used in
this case, moreover, were not double blind, because
both of the detectives who administered them were
aware that the defendant was their chief suspect and
knew which photographs in the arrays they showed the
victims were of him. Such a procedure is unnecessarily
suggestive because it makes possible both the con-
scious or unconscious cueing of witnesses as to which
photograph they should select from an array and, even
in the absence of such cueing, the giving of confirmatory
postidentification feedback to any witness who selects
the chief suspect’s photograph. The potential conse-
quences of giving a witness such confirmatory postiden-
tification feedback are to substitute the witness’
memory of the person in the selected photograph for
his memory of the perpetrator and to bolster his confi-
dence in that and future identifications of the defendant
as the true perpetrator of the charged offenses, making
it difficult to expose the strength or weakness of the
identification on cross-examination. In this case,
although there is no evidence that either of the detec-
tives who administered the photographic identification
procedures here at issue gave cues to either victim as
to which photograph in the array they should select,
it is nonetheless clear that they both knew that the
photograph each witness picked was that of the defen-
dant, whose name they knew and promptly shared with
the witnesses after they made their selections. Although
the giving of such feedback after the witnesses identi-
fied the defendant obviously did not contribute to the
initial making of such identifications, it potentially bol-
stered each witness’ confidence in the correctness of
his or her identification by confirming that his or her
spouse had identified the same person. Such undue
bolstering of the witnesses’ confidence could easily
have been avoided by the simple expedient of recruiting
another officer to administer the photographic identifi-
cation procedures who did not know either the name
of the chief suspect or which photographs in each array
were of him. More simply, of course, the officers who
administered the photographic identification proce-
dures could and should have refrained from giving any
feedback to the witnesses after they selected the defen-
dant’s photograph. The giving of such confirmatory
feedback to a witness in the postidentification period
is yet another factor so well known by scientific
researchers to undermine the reliability of eyewitness
identifications that testimony about that factor from a
qualified expert witness has been held to be admissible
in a criminal trial upon a simple showing of relevance.
See State v. Artis, supra, 136 Conn. App. 608. The giving
of such feedback to the victims in this case was unnec-
essarily suggestive and conducive to the making of an
irreparable and potentially overconfident misidentifica-
tion of the defendant as the perpetrator of the
charged offenses.
Finally, and ‘‘most importantly,’’ the defendant
argues, ‘‘[T]he prosecutor irrevocably tainted the proce-
dure by displaying a single, extraordinarily suggestive
picture of [the defendant] labeled ‘mugshot’ to Frank
[Pereira] and Gisele Pereira within days of their testi-
mony in the hearing on the motion to suppress. More-
over, [the state’s attorney] interviewed them together,
despite the . . . possibility of tainting the individual
identifications by doing so.’’ We also agree with the
defendant that the prosecutor’s conduct in so meeting
with the victims and showing them a single photograph
of the defendant bearing his name and the date of his
arrest was unnecessarily suggestive.
The state’s attorney responded to the latter argument,
and the trial court agreed, that the prosecutor did noth-
ing improper by meeting together with the two victims
and showing them their respective photographic arrays
and the defendant’s postarrest mug shot because he
was merely preparing them to testify at the suppression
hearing at that time. We disagree. Although counsel
surely has the responsibility to prepare himself for any
trial or hearing, and part of his preparation may appro-
priately involve meeting with his witnesses to prepare
them to testify, he is also duty bound not to engage in
conduct that undermines the reliability of identification
testimony on which he plans to rely to obtain a convic-
tion. The officers who interviewed the two eyewit-
nesses and later administered the eyewitness
identification procedures that led to their challenged
identifications of the defendant obviously knew better
than to elicit the witnesses’ accounts of the incident and
descriptions of the perpetrator in each other’s presence.
Hence, they kept the witnesses separate and apart from
one another when interviewing them and did not show
them each other’s photographic arrays or written state-
ments at any later time, although they did later inform
them that they had identified the same suspect. The
prosecutor, by contrast, both commingled the wit-
nesses’ descriptions of the perpetrator with knowledge
that a sequestration order was in effect for the very
purpose of preventing him from engaging in such cross-
pollinating conversations with witnesses, then he
showed them both the booking photograph of the per-
son they had identified to prepare them to identify him
in the courtroom when they testified in the suppression
hearing and at trial. Such conduct, involving the show-
ing of a single booking photograph of the defendant
with his name and arrest date on it was grossly sugges-
tive and completely unnecessary in light of the wit-
nesses’ consistent descriptions of the perpetrator as a
man with a darker complexion than that appearing in
the modified DOC photograph they had selected from
their respective arrays. Our Supreme Court has held
that: ‘‘Absent exigent circumstances that require police
officers promptly [to establish] either the defendant’s
complicity or his innocence . . . the showing of a sin-
gle photograph of a defendant is almost always unneces-
sarily and impermissibly suggestive.’’ (Citation omitted;
internal quotation marks omitted.) State v. Findlay, 198
Conn. 328, 338, 502 A.2d 921, cert. denied, 476 U.S. 1159,
106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). The state makes
no argument, nor do we find any basis upon which it
could have done so, that exigent circumstances some-
how necessitated the use of this prejudicial procedure.
On the basis of the foregoing facts, there can be no
question that the identification procedures used in this
case were unnecessarily suggestive in several ways. Not
only did they needlessly direct the victims’ attention to
the defendant’s oddly colored DOC photograph in two
arrays of photographs that had been compiled because
they showed men who looked like the defendant as he
appeared in that photograph, not because he looked
like the perpetrator as the victims had described him,
but they prompted the victims to make their selections
from those arrays of light-skinned males by the process
of elimination and the exercise of relative judgment by
displaying them simultaneously rather than sequen-
tially. Furthermore, such procedures involved the
improper showing of such tainted arrays to the victims
by police personnel who knew which person depicted
in them was their chief suspect, with the danger, and
ultimately the result, that if they picked the chief sus-
pect’s photograph, they would be given confirmatory
feedback that they had picked the right person. Such
undue bolstering of the victims’ identifications of the
defendant, starting with information from the police
that they both had selected the same photograph and
strengthened further by the prosecutor’s completely
unjustifiable showing of the defendant’s arrest photo-
graph to both victims under the guise of routine pretrial
preparation no doubt increased the witnesses’ confi-
dence in the strength of their identifications and made
them harder to challenge effectively on cross-exami-
nation.
In light of those findings, we conclude that, when
viewed in its entirety, the pretrial procedure by which
the state procured the Pereiras’ identifications of the
defendant was ‘‘so suggestive that it requires the court
to consider the reliability of the identification[s] [them-
selves] in order to determine whether [they] ultimately
should be suppressed.’’ (Internal quotation marks omit-
ted.) State v. Revels, supra, 313 Conn. 772.
RELIABILITY
Having reached the conclusion that the identification
procedures were unnecessarily suggestive, we turn next
to a consideration of whether, despite the shortcomings
of those procedures, the Pereiras’ identifications of the
defendant were nonetheless reliable under the totality
of the circumstances. This court has stated that, ‘‘In
making this assessment, we track the factors outlined
in Manson v. Brathwaite, [432 U.S. 98, 114, 97 S. Ct.
2243, 53 L. Ed. 2d 140 (1977)], and we weigh those
factors against the corrupting influence of the improper
identification.’’ State v. Artis, supra, 136 Conn. App.
595. ‘‘To determine whether an identification that
resulted from an unnecessarily suggestive procedure is
reliable, the corruptive effect of the suggestive proce-
dure is weighed against certain factors, such as the
opportunity of the [victim] to view the criminal at the
time of the crime, the [victim’s] degree of attention,
the accuracy of [the victim’s] 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.)
State v. Ledbetter, supra, 275 Conn. 553.
Since its seminal decision in Ledbetter, our Supreme
Court has broken new ground on the subject of eyewit-
ness identifications by ruling, in State v. Guilbert, supra,
306 Conn. 218, that there is now ‘‘widespread judicial
recognition that eyewitness identifications are poten-
tially unreliable in a variety of [additional] ways. . . .
This broad based judicial recognition tracks a near per-
fect scientific consensus.’’ (Footnote omitted.) Id., 234–
35. Although Guilbert concerned the admissibility of
expert testimony as to certain factors affecting the relia-
bility of eyewitness identifications, the Supreme Court’s
recognition of those factors provides additional guid-
ance for trial courts to follow in assessing the reliability
of eyewitness identifications challenged on pretrial
motions to suppress. In other words, those additional
factors may be considered not only by a jury in evaluat-
ing the weight to be given to a particular eyewitness
identification, but also by the court in assessing the
reliability of that identification in the face of a constitu-
tional challenge to its admissibility. The court in Guilb-
ert listed those factors affecting the reliability of
eyewitness identifications as follows: ‘‘(1) there is at
best a weak correlation between a witness’ confidence
in his or her identification and the identification’s accu-
racy; (2) the reliability of an identification can be dimin-
ished by a witness’ focus on a weapon; (3) high stress
at the time of observation may render a witness less
able to retain an accurate perception and memory of
the observed events; (4) cross-racial identifications are
considerably less accurate than identifications involv-
ing the same race; (5) memory diminishes most rapidly
in the hours immediately following an event and less
dramatically in the days and weeks thereafter; (6) an
identification may be less reliable in the absence of a
double-blind, sequential identification procedure; (7)
witnesses may develop unwarranted confidence in their
identifications if they are privy to postevent or postiden-
tification information about the event or the identifica-
tion; and (8) 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., 253–54.
As for the reliability of the Pereiras’ challenged identi-
fications, the defendant argues as follows: ‘‘Certainly
Frank [Pereira] and Gisele Pereira saw their assailant
up close, and in a well lit room . . . [b]ut at no time
in the seconds that their assailant was in view did they
see him with his hood down or his sunglasses off. Their
opportunity to view their assailant was extraordinarily
limited.’’ (Citation omitted; internal quotation marks
omitted.) The defendant further argues that the descrip-
tions the Pereiras gave to the police were very general,
in that they were limited to the perpetrator’s ‘‘clothing,
approximate age and size and race.’’ The defendant
emphasizes that their descriptions of the assailant’s
clothing actually differed from one another. As to the
Pereiras’ degree of attention, the defendant argues that
Gisele Pereira ducked down behind the counter and
closed her eyes as soon as she saw the perpetrator
pull out his gun, and from that moment forward Frank
Pereira also focused his attention on the perpetrator’s
gun, not on his face. Finally, as to the Pererias’ professed
certainty with respect to their respective identifications
of the defendant, the defendant argues that the police
improperly provided confirmatory feedback to them,
disclosing the defendant’s name and date of the birth
to each of them after they identified him and telling
them that they had identified the same person.
The defendant also argues that the reliability of the
witnesses’ identifications of him were undermined by
many of the factors described in Guilbert, including
that they resulted from the simultaneous, rather than
the sequential, showing of photographs in a manner
that was not double blind: ‘‘[t]he presence of a gun . . .
the effects of stress . . . the effects of cross-racial
identification and the effects of the identification of a
person in a different age group,’’ and the cumulative
effect of all of the aforementioned factors on the relia-
bility of the identifications.
The trial court found that even if the procedure used
by the state actors to procure the victims’ photographic
identifications of the defendant was unnecessarily sug-
gestive, such identifications, and the victims’ subse-
quent in-court identifications of the defendant, were
not thereby rendered so unreliable as to warrant their
suppression as evidence at trial. The court found that
the arrays shown to the Pereiras were comprised of
eight similar looking individuals who matched Frank
Pereira’s description of his assailant as having ‘‘dark
skin [and being] unshaved with a scruffy beard, [and]
six feet tall.’’ The court noted that Frank Pereira was
within six feet of the perpetrator, that he spoke to him
and observed him when he was approaching the store
from the parking lot and then in the well-lit store. Frank
Pereira described the perpetrator to McKnight on
August 24, 2012. Gisele Pereira also observed the perpe-
trator as he approached and entered the store, and
asked him if she could help him. She gave a description
of the perpetrator to Stadalink on the very day of the
incident, and then reiterated her description to Lafer-
riere just two days later. Both of them testified that the
perpetrator had caught their attention as soon as they
saw him outside of the store because he was wearing
a hooded sweatshirt with the hood up on a hot summer
day. They were immediately suspicious of him for that
reason, and thus paid close attention to him in well-
lighted surroundings before he ever pulled out his gun.
As a result, their consistent descriptions of him closely
matched the defendant’s actual appearance when he
came before them in court. Both Pereiras identified the
defendant as the perpetrator on August 29, 2012, just
one week after the incident.
Although many of the defendant’s arguments have
merit, the factors he relies upon do not necessarily
outweigh the factors underlying the trial court’s conclu-
sion. For instance, the defendant argues that the Per-
eiras’ opportunity to view the perpetrator was very
limited in duration—that the entire event, from the time
the Pereiras observed the perpetrator outside of their
store until he fled, lasted only seconds—and that their
observations of the perpetrator were made under the
stress of the situation, later amplified when guns were
pulled. The trial court, however, reasonably credited
the victims’ testimony that they carefully observed the
perpetrator with suspicion from the moment they first
spotted him in the sunlight outside of their store until
he came within six feet of them inside their well-lit
store. And although the victims’ descriptions of the
perpetrator were general in nature because part of the
perpetrator’s face was obscured by his hood and sun-
glasses, they made those descriptions multiple times,
the first time by Gisele Pereira on the afternoon of the
incident, and those descriptions were consistent and
matched the defendant’s actual appearance in court.
Frank Pereira described the perpetrator two days after
the incident, and both victims identified the defendant
as the perpetrator within one week of the incident.
Although the testimony of Laferriere belies the trial
court’s finding that the photographs in the array
matched the victims’ description of the perpetrator,
particularly as to his complexion, the court’s finding
that the eight photographs in the arrays, including the
photograph of the defendant, were of similar looking
men is supported by the evidence.
We thus conclude that even though the evidence may
have supported factors tending generally to undermine
the reliability of the eyewitness identifications, the trial
court was not required to afford more weight to those
factors here than to the factors upon which it relied.
Those factors upon which the court explicitly relied—
the victims’ opportunity to view the perpetrator, their
degree of attention to him, the time between the crime
and their identifications and the consistency of their
descriptions of the perpetrator—are supported by the
record and by law. See Manson v. Brathwaite, supra,432 U.S. 114. Notwithstanding the unnecessarily sugges-
tive identification procedure employed in this case,
including the lack of a double-blind, sequential array,
the victims’ exercise of relative judgment and their sub-
sequent receipt of confirmatory feedback, we cannot
conclude that the trial court improperly determined,
in light of the totality of the circumstances, that the
identifications of the defendant by the Pereiras were
not so unreliable as to require their suppression as
evidence at the defendant’s trial.
II
The trial court’s conclusion that the victims’ eyewit-
ness identifications of the defendant as the perpetrator
of the charged offenses were not rendered so unreliable
by the pretrial identification procedures that were used
to procure them as to require their suppression as evi-
dence at trial has no legal effect upon the jury’s indepen-
dent obligation to assess their reliability and sufficiency
to prove his commission of the charged offenses. We
thus turn to the defendant’s next claim, which is that
the trial court erred in precluding Penrod, his expert
witness, from testifying as to certain factors recognized
in Guilbert as impacting the reliability of eyewitness
identifications.
The following additional procedural history is rele-
vant to this claim. On March 4, 2013, the defendant filed
a disclosure of expert witness, in which he stated his
intention to present the following testimony from Pen-
rod at trial: ‘‘It is anticipated that . . . Penrod will tes-
tify at trial about issues relating to the potential for
unreliable eyewitness identifications under circum-
stances where certain memory factors are present, i.e.,
stress, weapon focus, [cross-racial identifications],
potentially [prejudicial] postevent information, poten-
tially unfair array . . . .’’
On December 6, 2013, the defendant filed a more
extensive disclosure of Penrod’s ‘‘proposed testimony,’’
consisting of over seven single-spaced pages detailing
‘‘how different variables may affect eyewitness identifi-
cation.’’
On December 10, 2013, the state moved orally to
preclude Penrod from testifying as to certain points on
which he was offered to testify by the defendant.11 The
state acknowledged, and thus did not object to, the
relevance of most of Penrod’s proffered testimony. It
moved, however, to preclude Penrod from testifying as
to certain areas disclosed in the defendant’s December
6, 2013 expert disclosure, two of which are the subject
of this appeal. The state moved, inter alia, that Penrod
not be permitted to testify ‘‘in regard to sequential
arrays and simultaneous presentation bias.’’12 The state
argued, that any such testimony from Penrod would be
irrelevant in this case and would only confuse the jury
and prejudice the state’s case. The state also argued
that the court should not allow Penrod to ‘‘make any
comments as to the actual photo arrays in this case.
That’s a question for the jury for the identification in
this case.’’ The state argued that Penrod ‘‘can’t testify
to ultimate issues in this case.’’13 The court sustained
the state’s objection to Penrod’s testimony regarding
the difference in reliability between simultaneous and
sequential showings of photographs on the ground of
relevancy because a sequential array had not been
administered in this case. The court also sustained the
state’s objection to any opinions by Penrod concerning
the arrays in this case, stating, ‘‘That’s for the jurors to
decide.’’ The defendant claims on appeal that the court
erred in so restricting Penrod’s testimony.
Despite the aforementioned restrictions on his testi-
mony, Penrod testified at length and in great detail as to
several factors that may negatively impact eyewitness
identifications. Penrod testified, inter alia, regarding the
composition of photographic arrays. He testified that
the process of assembling an array must begin with
the description or descriptions of the perpetrator by
witnesses, with the goal of ensuring that the appearance
of every person in the array is consistent with the wit-
nesses’ description of the perpetrator. He testified, ‘‘You
don’t want [the witnesses] to be in a position to go
through the array and throw out some of the faces
because they aren’t consistent with the description.
That increases risk to the innocent individual of being
chosen from an array.’’ He testified that another factor
to be considered in assessing the reliability of an array
‘‘concerns aspects of the array that may make the sus-
pect’s picture . . . distinctive and call attention to the
picture.’’ He explained, ‘‘[Y]ou want to . . . make sure
there is nothing distinctive about particularly the sus-
pect’s picture that would draw attention to it. That could
be something like the angle. Could be something like
the size of the person depicted in the photograph. It
could be aspects of the coloration. You don’t want back-
ground color in one picture to be different from all of
the other pictures and call attention to it. You don’t
want to have a black and white picture with a bunch
of color photographs. You don’t want to have any sort
of variation that would make the picture stand out, call
people’s attention to it. . . . [T]he critical thing is to
assure protection for innocent suspects by assuring that
they don’t stand out in any way relative to the other
people in the array.’’ He testified that a difference in
lighting or a difference in the distance of the individual
from the camera would call attention to that individual.
As for facial hair, he posited that with an array in which
only one individual had a mustache, undue attention
would be drawn to that individual on that basis. As
to the impact of compiling an array by matching the
witnesses’ identifications with compiling an array by
matching the defendant’s appearance, Penrod testified:
‘‘That’s sort of the old practice, the notion that what
you do is you put, surround the suspect with people
who in some way resemble the suspect and ignore the
description given by the witness. . . . That is not the
preferred practice and for two reasons. One. It may
happen by chance or something other than chance,
that the suspect bears a stronger resemblance to the
description than other people in the array, so you end
up with a bias[ed] array because of the match to descrip-
tion. So, you can’t ignore the description when you’re
doing that. The other problem is that it turns out that
there have been some demonstrations that if you select
people who resemble the suspect, it can have the effect
of actually showcasing the suspect. And it appears the
reason for that is that everybody in the array bears
more of a resemblance to the suspect. They sort of
become a prototype of the array. Everybody else bears
more resemblance to the suspect than they bear to one
another, and that can produce bias.’’ He explained to
the jury that a simultaneous array means that ‘‘faces
or people are presented together as a bunch, as opposed
to being presented to individuals one at a time.’’ He
testified that it is especially problematic when a witness
identifies a perpetrator from an array by employing a
process of elimination. He explained that it is important
to tell a witness that the perpetrator may not be in the
array so they do not feel as though they must pick one,
that the worry is that witnesses will engage in ‘‘the
process of elimination,’’ meaning ‘‘throwing faces out
[un]til they’re left with the last man standing and pick
that face.’’
The defendant claims on appeal that the trial court
improperly precluded his expert from testifying as to
the arrays that were shown to the Pereiras in this case
and the difference in reliability between simultaneous
arrays and sequential arrays, and that he was harmed
by those restrictions on his expert witness’ testimony.
At the outset, we note that ‘‘[a] witness qualified
as an expert by knowledge, skill, experience, training,
education or otherwise may testify in the form of an
opinion or otherwise concerning scientific, technical
or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or
in determining a fact in issue. . . . [I]n order to be
admissible, the proffered expert’s knowledge must be
directly applicable to the matter specifically in issue.
. . . The true test for the admissibility of expert testi-
mony is whether the witnesses offered as experts have
any peculiar knowledge or experience, not common to
the world, which renders their opinions founded on
such knowledge or experience any aid to the court or
the jury in determining the question at issue. . . . The
test for admissibility is not limited to matters of scien-
tific knowledge. Generally, expert testimony may be
admitted if the witness has a special skill or knowledge,
beyond the ken of the average juror, that, as properly
applied, would be helpful to the determination of an
ultimate issue. . . . The trial court has wide discretion
in ruling on the admissibility of expert testimony and,
unless that discretion has been abused or the error is
clear and involves a misconception of the law, its ruling
will not be disturbed.’’ (Citations omitted; internal quo-
tation marks omitted.). State v. Leniart, 166 Conn. App.
142, 220, 140 A.3d 1026, cert. granted on other grounds,
323 Conn. 918, 149 A.3d 499 (2016).
In State v. Guilbert, supra, 306 Conn. 218, our
Supreme Court ‘‘revisited the question of whether the
factors affecting the reliability of eyewitness testimony
generally were within the knowledge of the average
juror such that expert testimony on that subject typi-
cally would be unnecessary. [The court] concluded,
ultimately, that such testimony is admissible if the trial
court determines that the expert is qualified and that
the proffered testimony is relevant and would aid the
jury. . . . [The court] disavowed the previously
expressed notions that the factors undermining the
reliability of eyewitness testimony were common
knowledge and that permitting expert testimony on
those factors amounted to an improper invasion of the
province of a jury to weigh evidence. . . .
‘‘[The court] emphasized in Guilbert, however, that
the decision did not mean that expert testimony neces-
sarily was required in all cases involving eyewitness
identifications. Rather, consistent with . . . preex-
isting jurisprudence governing the admission of expert
testimony, trial courts were to retain broad discretion
in ruling on the qualifications of expert witnesses and
determining whether their opinions are relevant. . . .
Consequently, whether to permit expert testimony con-
cerning the reliability of eyewitness identification evi-
dence in any individual case ultimately is a matter
within the sound discretion of the trial court. A trial
court may bar expert testimony on the fallibility of
eyewitness identifications if it reasonably concludes
that the witness does not qualify as an expert or . . .
lacks an adequate scientific foundation for one or more
of his opinions concerning the eyewitness identification
at issue. Similarly, the trial court may preclude such
testimony if the court reasonably determines, upon
due consideration of the facts and circumstances of
the case, that the particular issue presented is not
beyond the ken of the average juror or that the proffered
testimony would not aid the jury in resolving the
issues presented. . . . Stated otherwise, such evi-
dence is subject to the same threshold reliability and
relevance requirements as any other expert testimony.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Williams, 317 Conn. 691,
702–704, 119 A.3d 1194 (2015).
The court in Guilbert held, however, that: ‘‘An expert
should not be permitted to give an opinion about the
credibility or accuracy of the eyewitness testimony
itself; that determination is solely within the province
of the jury. Rather, the expert should be permitted to
testify only about factors that generally have an adverse
effect on the reliability of eyewitness identifications and
are relevant to the specific eyewitness identification at
issue.’’ State v. Guilbert, supra, 306 Conn. 248. The clear
holding of Guilbert is dispositive of the defendant’s
claims that the trial court improperly precluded Penrod
from testifying as to certain issues. Guilbert expressly
prohibits an expert from opining as to the reliability of
the specific identification procedures in a particular
case, and thus the trial court properly precluded Penrod
from testifying as to faults with the arrays in this case.
As to the defendant’s argument that the court improp-
erly precluded Penrod from explaining to the jury the
risks of a simultaneous array versus the benefits of a
sequential array, the defendant argues that Guilbert
specifically provides for the admission of testimony that
‘‘an identification may be less reliable in the absence
of a . . . sequential identification procedure.’’ Id., 253.
Because a sequential identification procedure was
absent in this case, we find the trial court’s preclusion of
Penrod’s testimony on the basis of relevance puzzling.
Even if the court erred in precluding Penrod’s testi-
mony in this limited manner, however, the defendant
has not proven that he was harmed by this alleged error.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the [impropriety] was harmful. . . . [A]
nonconstitutional [impropriety] is harmless when an
appellate court has a fair assurance that the [impropri-
ety] did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) Id., 265.
Here, the Pereiras both testified that they identified
the defendant from the array by employing a process of
elimination, comparing the photographs to one another,
the risk of which would have been lessened if the array
had not been presented simultaneously. Penrod testi-
fied at length that an identification made by way of a
process of elimination is problematic. As noted,
although he was not permitted to compare the risks of
simultaneous arrays to the benefits of sequential arrays,
his extensive testimony on the dangers associated with
identifying an individual by using a process of elimina-
tion when looking at a simultaneous array, and defense
counsel’s application of that expert testimony in his
closing argument to the method employed by the Per-
eiras in identifying the defendant alerted the jury to
the potential impairment of those identifications made
when a simultaneous array is used. In light of the
breadth of Penrod’s testimony, we cannot conclude that
the court’s ruling precluding him from testifying as to
his preference for the sequential presentation of an
array substantially affected the verdict in this case.
III
The defendant also claims that the trial court erred
in refusing to instruct the jury in accordance with his
request to charge on the subject of eyewitness identifi-
cation testimony. Specifically, the defendant claims that
the trial court improperly refused to instruct the jury
that the involvement of a weapon might impair the
accuracy of an eyewitness identification; that stress and
fear can adversely affect the accuracy of an eyewitness
identification; that the witness’ exposure to new infor-
mation after the crime can result in mistaken identifica-
tion; that the length of time between the incident and
the identification can adversely affect the accuracy of
the identification; that cross-racial identifications are
less accurate than those made by witnesses who are
the same race as the perpetrator; and that an identifica-
tion in the absence of a double-blind sequential proce-
dure is less reliable. We disagree.
‘‘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. (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v. Bul-
lock, 155 Conn. App. 1, 19–20, 107 A.3d 503, cert. denied,
316 Conn. 906, 111 A.3d 882 (2015).
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.) State v. Kitchens,
299 Conn. 447, 455, 10 A.3d 942 (2011).
‘‘[O]ur Supreme Court in Guilbert undeniably sought
to protect defendants from a specific risk, that of being
misidentified as perpetrators by eyewitnesses to crimi-
nal activity.’’ State v. Bullock, supra, 155 Conn. App.
24–25. Although the defendant in Guilbert raised an
evidentiary claim, and not a claim of instructional error,
the court there recognized not only the importance of
expert testimony as to factors affecting the reliability
of eyewitness identifications, but also the value of par-
ticularized jury instructions as to those factors. The
court stated: ‘‘We . . . wish to reiterate that a trial
court retains the discretion to decide whether, under
the specific facts and circumstances presented, focused
and informative jury instructions on the fallibility of
eyewitness identification evidence . . . would alone
be adequate to aid the jury in evaluating the eyewitness
identification at issue. We emphasize, however, that
any such instructions should reflect the findings and
conclusions of the relevant scientific literature per-
taining to the particular variable or variables at issue in
the case; broad, generalized instructions on eyewitness
identifications . . . do not suffice.’’ (Citations omitted;
emphasis added; footnote omitted.) State v. Guilbert,
supra, 306 Conn. 257–58.
On December 12, 2013, the defendant filed two
requests to charge the jury regarding eyewitness identi-
fications. In his first request to charge, he asked that
the jury be instructed as follows: ‘‘The vagaries of eye-
witness identifications are well known, and you should
receive with caution any identification testimony from
an eyewitness and consider carefully whether or not
that witness is accurate in his or her [belief] and in his
or her testimony. You should scrutinize with care all
such eyewitness identification. You should consider
what opportunity each person had to make an observa-
tion and all of the other circumstances surrounding
such observation. Eyewitness identification is some-
times unreliable but its weight like the weight of any
testimony is ultimately for you to decide.’’ The defen-
dant’s second proposed instruction on eyewitness iden-
tification contained eight enumerated instructions that
essentially mirrored the eight scientifically tested fac-
tors that the Supreme Court recognized in Guilbert.14
The court declined to give the instructions requested
by the defendant, and, instead, gave the following
instructions on eyewitness identification.15 ‘‘In this case,
the state has presented evidence that an eyewitness
identified the defendant in connection with the crime
charged. Identification is a question of fact for you to
decide, tak[ing] into consideration all of the evidence
that you have seen and heard in the course of the trial.
‘‘The identification of the defendant by a single wit-
ness as the one involved in the commission of the crime
is in and of itself sufficient to justify conviction of such
person, provided, of course, that you are satisfied
beyond a reasonable doubt of the identity of the defen-
dant as the one who committed the crime.
‘‘In arriving at a determination as [to] the matter of
identification, you should consider all the facts and
circumstances that existed at the time of the observa-
tion of the perpetrator by each witness. In this regard,
the reliability of each witness is of paramount impor-
tance, since identification testimony is a question of
belief or impression by the witness. Its value depends
upon the opportunity and ability of the witness to
observe the perpetrator at the time of the event and to
make an accurate identification later. It is for you to
decide how much weight to place upon the testimony.
‘‘In appraising the identification of the defendant as
the perpetrator by any witness, you should take into
account whether the witness had adequate opportunity
and ability to observe the perpetrator on the date in
question. This will be affected by such considerations
as the length of time available to make the observation,
the distance between the witness and the perpetrator,
the lighting conditions at the time of the offense,
whether the witness had known or seen the person in
the past, the history, if any, between the parties includ-
ing, whether there was any animosity, and whether
anything distracted the attention of the witness during
the incident.
‘‘You should also consider the witness’ physical and
emotional condition at the time of the incident and the
witness’ powers of observation in general.
‘‘As to the circumstances of the identification. You
should consider the length of time that elapsed between
the occurrence of the crime and the identification of
the defendant by the witness. You may also consider
the strength of the identification, including the witness’
degree of certainty. Certainty, however, does not
mean accuracy.
‘‘You should also take into account the circumstances
under which the witnesses first viewed and identified
the defendant, the suggestibility, if any, of the procedure
used in that viewing, and any physical description that
the witnesses may have given to the police, and all the
other factors which you find relating to reliability or
lack of reliability of the identification of the defendant.
‘‘Indicating to a witness that the suspect is present
in an identification procedure or failing to warn the
witness that the person may or may not be in the proce-
dure may increase the likelihood that the witness will
select one of the individuals in the procedure even when
the perpetrator is not present. Thus, such action on the
part of the procedure administrator may increase the
probability of a misidentification.
‘‘You may also consider whether the witness at any
time either failed to identify the defendant or made an
identification that was inconsistent with the identifica-
tion testified to at trial. You will subject the testimony
of any identification witness to the same standards of
credibility that you apply to all witnesses.
‘‘When assessing the credibility of the testimony as
it relates to the issue of identification, keep in mind
that it is not sufficient that the witness be free from
doubt as to the correctness of the identification of the
defendant; rather, you must be satisfied beyond a rea-
sonable doubt of the accuracy of the identification of
the defendant before you may find him guilty on the
charges.
‘‘You have the testimony of Dr. Penrod on the scien-
tific research on identification. You should evaluate
that testimony as I instructed you when I gave you the
instruction on expert testimony.
‘‘In short, you must consider the totality of the cir-
cumstances affecting the identification. Remember, the
state has the burden to prove every element of the
crime, including the identity of the defendant as the
perpetrator of the crime. You must be satisfied beyond
a reasonable doubt of the identity of the defendant as
the one who committed the crime or you must find the
defendant not guilty.
‘‘If you have a reasonable doubt as to the accuracy
of the identification, you must give the defendant the
benefit of that doubt.’’
The foregoing instructions given by the trial court
are precisely the sort of generalized instructions that
the court in Guilbert described as insufficient, standing
alone, to educate a jury about the current state of scien-
tific research concerning the factors affecting the relia-
bility of eyewitness identification testimony. However,
when the court emphasized the need for particularized
instructions; State v. Guilbert, supra, 306 Conn. 258; it
noted that ‘‘these are the findings and conclusions that
a qualified expert would provide to the jury in the
absence of the court’s focused jury instructions on the
eyewitness identification issue or issues presented by
the case.’’ Id., 258 n.37. In concluding that ‘‘generalized
instructions that merely touch on the subject of eyewit-
ness identification evidence do not suffice as a substi-
tute for expert testimony on the reliability of such
evidence’’; id., 266; the court implied that such instruc-
tions are at least adequate when expert testimony is
presented on that subject.16 Expert testimony, particu-
larly uncontroverted testimony, fulfills the stated pur-
pose of particularized instructions, which is obviously
to educate the jury regarding the findings of scientific
researchers as to the reliability of eyewitness identifi-
cations.
Further, even if we assume arguendo that the failure
to give the requested instruction was error, the defen-
dant has not established harm. See State v. Faust, 161
Conn. App. 149, 193,127 A.3d 1028 (2015) (where claim
of instructional error is evidentiary in nature, defendant
must prove that it was reasonably probable that jury
was misled), cert. denied, 320 Conn. 914, 131 A.3d 252(2016). In this case, all of the well-recognized truths of
modern science about factors affecting the reliability
of eyewitness identifications were testified to at consid-
erable length by Penrod on the defendant’s behalf.17
The defendant not only acknowledges that, but relies
upon Penrod’s testimony as to those factors as support
for his argument that the court should have instructed
the jury on them. That argument, however, miscon-
strues the intent of Guilbert concerning the giving of
particularized instructions, which, as previously noted,
is to educate a jury that has not heard expert testimony
on the subject about particular factors that may affect
the reliability of such identifications and may be coun-
terintuitive to the average juror. Here, the jury did not
need the court’s instruction to educate it because the
defendant had presented extensive expert testimony as
to the fallibility of eyewitness identifications and the
specific factors that may affect their reliability. The
particularized instructions sought by the defendant,
which actually simply comprised a list of the Guilbert
factors, would have merely been a foreshortened reiter-
ation of the high points of Penrod’s testimony, the thor-
oughness of which inarguably was significantly more
beneficial to the defendant than the listing he requested.
The court did reference the factors about which Penrod
testified by specifically reminding the jury to consider
them on the basis of that testimony and in light of the
other instructions on expert witnesses. Moreover, the
jury was not likely misled by the absence of particular-
ized instructions because throughout the trial, the
defendant had focused on the reliability of the eyewit-
ness identifications, not only during cross-examination
of the Pereiras and the police officers who interviewed
them, but also in his examination of Penrod and during
his closing argument, where he effectively tied the
issues, the testimony and the science together. Thus,
the defendant’s jury was sufficiently apprised of such
reliability factors throughout trial. Accordingly, the
defendant’s claim must fail.
IV
The defendant raises two additional, unrelated claims
of evidentiary error. ‘‘In order to establish reversible
error on an evidentiary impropriety . . . the defendant
must prove both an abuse of discretion and a harm that
resulted from such abuse. . . . [T]he proper standard
for determining whether an erroneous evidentiary rul-
ing is harmless should be whether the jury’s verdict was
substantially swayed by the error.’’ (Citations omitted.)
State v. Fernando V., 170 Conn. App. 44, 67–68,
A.3d (2016), cert. granted on other grounds, 324
Conn. 923, A.3d (2017).
We further note that: ‘‘Relevant evidence is evidence
that has a logical tendency to aid the trier in the determi-
nation of an issue. . . . One fact is relevant to another
if in the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evi-
dence is irrelevant or too remote if there is such a want
of open and visible connection between the evidentiary
and principal facts that, all things considered, the for-
mer is not worthy or safe to be admitted in the proof
of the latter.’’ (Internal quotation marks omitted.) State
v. Beverley, 169 Conn. App. 689, 701–702, 151 A.3d 854(2016), cert. denied, 324 Conn. 924, A.3d (2017).
With these principles in mind, we briefly address the
defendant’s remaining claims.
A
The defendant claims that the trial court erred in
admitting into evidence testimony of Laferriere regard-
ing a holster that was found amongst the defendant’s
belongings during the search of his girlfriend’s home.
The holster, according to Laferriere, was stretched at
the top in a manner consistent with having held a gun
similar to the gun used in the incident at issue in this
case. Specifically, the defendant claims that the trial
court improperly admitted the challenged testimony
because Laferriere had not been qualified as an expert
on firearms or the properties of nylon holsters and
that the testimony was speculative and thus irrelevant.
We disagree.
Laferriere testified that, when searching the defen-
dant’s belongings at Walton’s home, he seized a black
nylon holster that was ‘‘a little stretched out at the top.’’
He indicated that the ‘‘shape’’ of the holster was relevant
to his investigation of the August 22, 2012 attempted
robbery because ‘‘there was a revolver used with the
shooting and we believed that being stretched out, it
was a revolver that was in there.’’
In objecting to that testimony, the defendant claimed,
inter alia, that Laferriere was not an expert on hand-
guns. That single statement cannot reasonably be con-
strued as a challenge to Laferriere’s qualifications to
so testify. Rather, the crux of the defendant’s objection
at trial was that the testimony ‘‘call[ed] for speculation’’
and was irrelevant because there was no testimony
presented regarding the size of the gun used by the
perpetrator that would have corroborated the manner
in which the holster was stretched or that the perpetra-
tor of the attempted robbery had been wearing a holster.
The court overruled the defendant’s objection on the
ground that the probative value of the evidence out-
weighed its potential prejudicial effect and aptly stated
that the jury could decide what weight to give to the
evidence.
The jury was free to infer that Laferriere’s testimony
that the shape of the holster was consistent with its
having been used to store or carry a revolver based
upon his training and experience as a police officer.
Laferriere stated his belief that a weapon that is the
general size and shape of a revolver caused the holster
to be stretched in the manner in which it was found.
As such, Laferriere’s testimony tended to corroborate
Frank Pereira’s testimony that he had been shot with
a revolver and the forensic evidence that showed that
the bullets retrieved from his body and the crime scene
had been fired from a revolver. It was within the jury’s
province to infer from such evidence that the holster
found amongst the defendant’s belongings had once
housed the weapon used in the August 22, 2012
attempted robbery. Similarly, the jury was free to dis-
count that evidence altogether. The court properly held
that the decision to draw the inference suggested by
the state, or to reject the state’s theory, was a decision
for the jury. See Rawls v. Progressive Northern Ins. Co.,
310 Conn. 768, 778 n.5, 83 A.3d 576 (2014) (‘‘inferences
drawn from circumstantial evidence are distinct from
conjecture and surmise’’). We thus cannot conclude that
the court abused its discretion in admitting Laferriere’s
testimony regarding the holster.
B
The defendant also claims that the trial court erred
in denying his request for access to Frank Pereira’s
medical records from Waterbury Hospital, which the
court had reviewed in camera upon defense request.
The defendant had sought access to the records on the
ground that Frank Pereira may have received treatment
for his gunshot wound that may have impaired his per-
ception or recollection of the robbery. The court denied
the defendant’s request for access, finding that nothing
in those records was relevant to the defendant’s case.
Based upon our thorough review of Frank Pereira’s
medical records, which were filed under seal for our
review, we agree with the trial court that those records
were not relevant to the defendant’s case and thus that
the court did not abuse its discretion in denying the
defendant’s request for access to them.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also raises two evidentiary issues that are unrelated to
the eyewitness identifications of him. We briefly address those claims in
part IV of this opinion.
2
The record does not specify exactly when the police received this tip,
or which officer took the tip.
3
Upon defense objection, the jury was not informed of the source of the
defendant’s photograph in the two arrays.
4
The ‘‘Witness Instructions for Photo Identification’’ that were signed by
the Pereiras provided, inter alia: ‘‘It is as important for the police to clear
innocent people as it is to identify the guilty. . . . Persons in the photos
may not look exactly as they did on the date of the incident because features
like facial or head hair can change. . . . The person you saw may or may
not be in these photographs. . . . The police will continue to investigate
this incident whether or not you identify someone.’’ (Emphasis in original.)
5
Referring to the photograph of the defendant that he selected from the
August 29, 2012, photographic array, Frank Pereira stated, ‘‘You could clearly
see that the complexion on . . . his skin tone is yellow.’’ He stated that
the defendant’s photograph was the photograph in the array with ‘‘the most
yellow’’ and that the lighting in the photograph was poor, ‘‘maybe worse
than the other[s].’’ He later reiterated that he had not picked the defendant
from the array based upon his skin complexion, stating, ‘‘It was a bad—it
was one of the things that . . . took me so long.’’ When asked by the
state’s attorney, in reference to the defendant’s appearance in the selected
photograph, ‘‘And this is the skin complexion of a black male in your opinion,
photo no. 2?’’ Frank Pereira answered, ‘‘No.’’
6
Frank Pereira’s trial testimony was essentially the same as his testimony
at the suppression hearing.
7
Gisele Pereira’s trial testimony was essentially the same as her testimony
at the suppression hearing.
8
Rule 3.7 of the Rules of Professional Conduct provides in relevant part:
‘‘(a) A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless:
‘‘(1) The testimony relates to an uncontested issue;
‘‘(2) The testimony relates to the nature and value of legal services ren-
dered in the case; or
‘‘(3) Disqualification of the lawyer would work substantial hardship on
the client. . . .’’
9
General Statutes § 54-1p has mandated since May 1, 2013, that law
enforcement personnel conduct certain identification procedures, such as
photographic lineups, under prescribed rules.
Section 54-1p (c) (2) provides: ‘‘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 or live 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 conducting the procedure does not know which
photograph the eyewitness is viewing during the procedure . . . .’’
10
In so doing, the court explained: ‘‘In this case, it’s not disputed that
Attorney Therkildsen did meet with . . . [the] Pereira[s]; however, in prepa-
ration for evidence they are clearly necessary witnesses in this case and
that would have been done in any event. In terms of the prosecutor explaining
why he met with them at the time he did in terms of the timing of the
subpoena, but essentially the court credits that the prosecutor would be
remiss in not meeting with witnesses in terms of preparation for trial. In
this particular case . . . [the] Pereira[s] have identified the defendant as
the perpetrator from the photo lineup, and the officer testified as to the
procedures that had been used both in compiling the photo array and also
in the instructions given to them prior to them making the identification.
. . . But under the circumstances of what was presented here as to the
conduct of Attorney Therkildsen, the court finds that there isn’t anything
that was necessary about his testimony. And so, as I indicated, it was really
a motion to disqualify in order to allow the defendant to call him as witness,
and so that’s denied.’’
The defendant claims on appeal that the court’s denial of his motion to
disqualify Therkildsen and call him as a witness was error. Although we agree
with the defendant that he should have been permitted to call Therkildsen as
a witness, the only thing that Therkildsen could have added to the Pereiras’
testimony regarding their November 23 meeting is an explanation for the
need for that meeting and the presentation of the mug shot to the witnesses.
Therkildsen never contended that such a need existed. He argued, rather,
that he was simply preparing for trial by meeting with the two witnesses
together. Puzzlingly, the court accepted that explanation and condoned the
procedure employed by Therkildsen as appropriate. Although we find such
an explanation mystifying, we agree with the court that Therkildsen’s testi-
mony was not necessary to the hearing on the motion to suppress. The one
to one showing of the defendant’s mug shot to the Pereiras was unnecessarily
suggestive, and no testimony by Therkildsen, absent testimony relating to
a necessity, could have changed that.
11
The state did not challenge his qualifications to so testify.
12
In his December 6, 2013 disclosure, the defendant represented that
Penrod would testify, inter alia, as follows: ‘‘Simultaneous Presentation Bias.
Nearly twenty years of research indicates that sequential lineups can cut
the rate of false identifications quite substantially. Steblay, Dysart & Wells
(2011) report a meta-analysis with 72 tests of simultaneous and sequential
lineups involving over 13,000 witnesses. In 27 studies that directly compare
sequential/simultaneous using both target-present and target-absent arrays,
witnesses were substantially less likely to make a false identification from
a target-absent array (32% mistaken identifications) than from simultaneous
arrays (54% mistaken identifications). Sequential lineups also yielded signifi-
cantly fewer false identifications of an innocent suspect compared to simul-
taneous lineups (15% vs. 28%).’’
13
The state sought to preclude additional areas of Penrod’s testimony, but
neither party has challenged the trial court’s rulings as to those other areas.
14
The defendant’s request to charge actually contained a ninth proposed
instruction on eyewitness identification, advising the jury that it was the
sole arbiter of the accuracy and credibility of the eyewitness testimony.
15
The record reflects that the court held a charge conference in chambers.
16
We note that, in State v. Ledbetter, supra, 275 Conn. 579–80, our Supreme
Court invoked its supervisory authority to require an instruction to the jury
in those cases where the identification procedure administrator fails to
warn the witness that the perpetrator may or may not be present in the
identification procedure. The court in Guilbert did not establish such a
mandate as to the reliability factors enumerated therein.
17
Penrod testified at length regarding eyewitness identifications in general,
stating that the estimated number of eyewitness identifications that are
wrong is 40 percent. He further testified that in instances in which a weapon
is involved, the weapon draws the witness’ attention away from the perpetra-
tor, causing the rate of mistaken identifications to nearly double. Because
the presence of a weapon increases the amount of stress that the witness
may be experiencing, that, too, increases the potential for error in identifica-
tion by anywhere from 20 to 50 percent. Penrod further testified that cases
involving cross-racial identifications may be impaired by another 20 percent
error. The presence of each of these factors when presented in a single
identification, have a cumulative effect, and the degree of impairment is
compounded by each factor.
Penrod further testified that the reliability of an identification is also
impacted when a perpetrator wears a disguise, such as a knit hat or glasses,
especially sunglasses. Similarly, putting on or taking off facial hair impairs
identification accuracy. He testified: ‘‘[O]bscuring portions of the face,
changing the appearance or nature of the face, can have powerful negative
effects on identification accuracy.’’
He testified that being shown a single photograph of an individual, as
opposed to an array, also affects the reliability of an identification. He
testified that the effects of seeing pictures following a crime can affect a
witness’ memory of the crime. Similarly, hearing another witness describe
a perpetrator can cause that description to be adopted by some individuals
as part of their memory of what the perpetrator looks like. Penrod testified
that if an array is not administered blindly, that is, that the individual who
is administering the array knows who the suspect is, there is a possibility
that they can exercise influence over the witness, even without knowing
he or she is doing so or is intending to do so. Penrod testified that identifica-
tions based upon arrays that are made faster are more reliable than slower
identifications. An identification made immediately upon seeing a photo-
graph is more reliable than one that is made as a result of study or analysis
of the faces. Identifications made of people in the witness’ own age group
are more reliable than those made of individuals of a different age, a cross
age impairment.