State v. Moore

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. DARNELL MOORE
(AC 38624)
Beach, Keller and Norcott, Js.
Argued September 20—officially released November 29, 2016
(Appeal from Superior Court, judicial district of New
London, Jongbloed, J.)
Allison M. Near, for the appellant (defendant).
David J. Smith, senior assistant state’s attorney, with
whom, on the brief, was Michael L. Regan, state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Darnell Moore, appeals
from the judgment of conviction, rendered following a
jury trial, of murder in violation of General Statutes
§ 53a-54a. The defendant claims that the trial court
improperly (1) denied his motion to strike the jury panel
and (2) denied his motion to suppress evidence. We
affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found that during the eve-
ning of August 26, 2010, in the vicinity of Lake Street
in Norwich, the defendant and the victim, Namdi Smart,1
became embroiled in an argument over liquor. The
defendant, known as ‘‘Boo’’ or ‘‘Boo-Boo,’’ was accom-
panied during this initial altercation by his friend, Tja-
mel Hendrickson, known as ‘‘Soda Pop.’’ During the
course of the loud, verbal dispute, the victim ripped
the defendant’s T-shirt. As the defendant walked away
from the scene, he was observed pointing to the victim,
and was overheard uttering an expletive and stating
that he would return to ‘‘get’’ the victim.
Shortly thereafter, Hendrickson called Samuel
Gomez on the telephone. He requested that Gomez
come to Norwich with a firearm. Gomez drove to
Spaulding Street in Norwich, where he met with Hen-
drickson and the defendant. Gomez handed a .45 caliber
handgun to the defendant. Gomez drove the defendant
and another man, Jordan Brown, to the vicinity of Lake
Street so that the defendant could search for the victim.
After the defendant identified the victim, the three men
returned to Spaulding Street for a period of time. There-
after, Gomez drove the defendant and Brown to yet
another location, where Gomez parked his automobile.
The defendant exited the automobile and, within a few
minutes, he shot the victim on Lake Street, causing his
death. The shooting was witnessed by three bystanders
who lived near the scene of the shooting: Kimberly
Harris, Roslyn Hill, and Laryssa Reeves. The defendant,
who was dressed in a black hooded sweatshirt, a black
hat, a black mask, and jeans, returned to the automobile
still in possession of the gun that Gomez had delivered
to him. The defendant gave possession of the gun to
Brown, who later exited the automobile with it. Gomez
drove the defendant to his mother’s residence before
returning to New London.
Subsequent to these events, the police arrested the
defendant on a murder charge. Following a trial before
a jury, the defendant was found guilty, and the court
sentenced him to serve a fifty-three year term of incar-
ceration. This appeal followed. Additional facts related
to the claims raised in this appeal will be set forth
as necessary.
I
improperly denied his motion to strike the voir dire
panel. He argues (1) that the trial court improperly
rejected his argument that the voir dire panel did not
reflect a fair cross section of the judicial district from
which it was drawn, in violation of the sixth amendment
to the United States constitution; (2) that the trial court
improperly rejected his argument that the jury selection
procedure violated his right to equal protection guaran-
teed by the United States constitution; and (3) that
this court should exercise its supervisory authority ‘‘to
mandate that the jury administrator collect demo-
graphic data so that it is able to follow the statutory
directive to prevent [discrimination] in jury selection.’’
(Internal quotation marks omitted.) We disagree.
The following additional facts are relevant to this
claim. Jury selection in the defendant’s case com-
menced on November 14, 2012. At that time, defense
counsel noted for the record that the defendant was an
African-American and that, of the twenty venirepersons
brought to the courtroom that day, there were no Afri-
can-Americans. Defense counsel stated: ‘‘I have no basis
to claim that there was any systemic effort to exclude
people of color I noted. So, it’s available for other pur-
poses and on the record.’’
As jury selection progressed, on November 16, 2012,
defense counsel stated for the record that, of sixty-eight
venirepersons in the case to that point, ‘‘we’ve not had
one African-American male and, to my knowledge,
there’s been one woman of color, who we did select
as juror number five . . . .’’ Defense counsel stated, in
relevant part: ‘‘I don’t think there’s a systemic effort on
the part of the state to suppress African-American jury
participation, but there certainly is an inadequate effort
made to assure it.’’ After observing that the defendant
was entitled to a jury composed of his peers, defense
counsel stated that he was ‘‘now on the cusp of raising
this as an issue.’’
On November 27, 2012, defense counsel made further
observations with respect to the nature of the venire-
persons. He stated that out of four venire panels in the
case to that point in time, consisting of ninety-nine
venirepersons, there were only two ‘‘people of color,
both women. We’ve not had one black male.’’ Defense
counsel stated his belief that 14 percent of the popula-
tion in Connecticut was African-American and that ‘‘the
venire that we’re getting day by day is not representative
of a fair cross section of the community.’’ Stating his
belief that the racial composition of the venire panels
was possibly accidental, but not intentional, defense
counsel stated that ‘‘there is a disparate impact in the
manner in which juries are being selected, apparently,
at this time in this county because I’m not seeing any
of my client’s peers.’’ Responding to the observations
made by defense counsel, the prosecutor stated that,
although the venirepersons generally did not appear to
be racial peers of the defendant, he did not have enough
information about such venirepersons to address the
issue of their race. The court stated that it would
address the issue if requested to do so by the defense.
On November 28, 2012, the defense filed a written
objection to the composition of the venire panels and
a request for an evidentiary hearing ‘‘whereby the jury
administrator [in New London County] may testify as
to how the jury venires are [assembled] to determine
whether the defendant’s sixth and fourteenth amend-
ment rights to a fair and impartial jury are being
infringed.’’ The defendant argued that, of approximately
100 venirepersons, there were two African-American
women and, to his belief, one male ‘‘who appeared to
have African-American features,’’ but referred to him-
self in his jury questionnaire as both Hispanic and Latin
American. In his memorandum of law, defense counsel
argued that more information was necessary before the
defense could set forth a prima facie case that the
defendant’s rights under the sixth amendment had been
violated because the venire panels were not representa-
tive of a fair cross section of the community. Specifi-
cally, the defendant argued that ‘‘it needs to be
determined how many potential jurors are in both the
state and in the county, and how those potential jurors
are then organized into venires. Without this informa-
tion, we cannot determine whether there is systemic
exclusion that accounts for the underrepresentation
of African-Americans in the defendant’s jury venire in
violation of his sixth and fourteenth amendment rights.’’
Defense counsel and the prosecutor requested that the
court mark the completed, confidential jury question-
naires in the present case as court exhibits, and the
court did so. Attached as exhibits to the defendant’s
memorandum of law were demographic statistics com-
piled by the United States Census Bureau. The defen-
dant cited to these exhibits to demonstrate that, in 2011,
Connecticut’s population was 11.1 percent African-
American and that New London’s population was 6.5
percent African-American. At the subsequent hearing
on the defendant’s motion, these exhibits were admitted
into evidence absent objection. At the conclusion of
the court proceeding on November 28, 2014, defense
counsel observed that, once again, the venire panel
brought to the courtroom that day did not include any
African-American men.
On December 4, 2012, the court held an evidentiary
hearing on the defendant’s motion. At that time, defense
counsel orally amended his motion to request that the
court strike the venire panel. In addition to the confiden-
tial jury questionnaires that had been marked as a court
exhibit, as well as the census data, the defense pre-
sented testimony from six witnesses: Sam Hannan,
Esther Harris, Monica Endres, Robert Brothers, Louis
Bucari, and Lynn Blackwell.
Hannan, the information technology manager for jury
administration, testified with respect to the manner by
which he compiles a master list of jurors for the Judicial
Branch. He testified that, in compliance with state law,2
he generates this master list by compiling information
from ‘‘source list[s]’’ obtained from four sources: the
Department of Revenue Services, the Department of
Motor Vehicles, the Department of Labor, and the regis-
trars of voters of each town. Hannan testified that noth-
ing in the information at his disposal provides him with
any information with respect to race or ethnicity. More-
over, he testified that he is unaware of any discussions
within the jury administrator’s office as to whether the
master list is likely to produce an adequate and statisti-
cally representative cross section of the community as
potential jurors. Hannan went on to testify that persons
who fail to report for jury duty in compliance with their
summonses to do so are automatically referred to the
attorney general’s office, but he was unable to provide
any information with respect to the racial or ethnic
characteristics of such persons. Hannan testified that,
to his knowledge, there have never been any efforts by
his office to systematically exclude members of a cer-
tain race from the jury pool.
Harris, the jury administrator for the Judicial Branch,
testified that her duties included summoning jurors,
selecting jurors, and utilizing jurors for the superior
courts in the state. She stated that she does not collect
statistics with respect to the racial characteristics of
jurors because she is not required to collect such infor-
mation. Harris acknowledged that the confidential jury
questionnaire that is provided to jurors affords prospec-
tive jurors the option of providing information concern-
ing their race, but that the form expressly states that
jurors need not furnish such information if they find it
objectionable to do so.3 When asked if she was ‘‘aware
of any tool, any procedure, any policy in the Judicial
Branch that assures that the list of potential jurors
generated from each town reflects the racial composi-
tion of that town,’’ Harris responded that she was not
aware of any. Harris testified that, to her knowledge,
neither she nor anyone in her office had systematically
excluded persons from the jury selection process on
the basis of their race.
Endres, the jury clerk for New London, testified that
she collects questionnaires from those jurors who
report for jury duty, but that she does not require them
to provide information concerning their race and that
she does not record such data. She testified that she
has no way of knowing the race of persons who are
summoned for jury duty. Endres testified that she does
not systematically exclude anyone from being a poten-
tial juror on the basis of their race.
Brothers, the executive director of the Commission
on Human Rights and Opportunities, testified that his
office did not maintain any racial statistics with respect
to persons who file income tax returns, persons who
register motor vehicles, persons who file for unemploy-
ment compensation, or persons who register to vote.
Bucari, the first assistant commissioner and general
counsel for the Department of Revenue Services, testi-
fied that his office did not maintain any information
with respect to the racial characteristics of persons who
file income tax returns. Lynn Blackwell, an employee of
the Department of Motor Vehicles, testified that the
department did not collect any data with respect to
racial characteristics.
The parties stipulated that the secretary of the state
did not possess any data with respect to the racial
characteristics of registered voters and that there was
no way for the secretary of the state to determine the
racial composition of the lists provided to the jury
administrator. Moreover, the parties stipulated that
although the attorney general has the authority to bring
enforcement actions against nonappearing jurors, the
attorney general had not pursued a case of juror delin-
quency for at least three years. Finally, the parties stipu-
lated that the Department of Labor did not maintain
data with respect to the racial or gender characteristics
of recipients of unemployment compensation.
At the conclusion of the hearing, defense counsel
argued that, of approximately 120 prospective jurors
in the present case, it appeared that there were three
African-American women and no African-American
men. Defense counsel stated that the defense did not
intend to argue that there was ‘‘any systemic effort to
exclude people of color’’ from the venire pool. Nonethe-
less, defense counsel argued, he believed that the defen-
dant had a viable cross-section claim under the sixth
amendment as well as an equal protection claim
because of the lack of diversity in the venire pool and,
particularly, the absence of any African-American men
in the venire pool. Defense counsel, relying on the cen-
sus data, argued that African-Americans generally were
vastly underrepresented in the venire pool in light of
state and New London County demographics, and
stated that ‘‘the question is [whether] this is an isolated
snapshot, does it reflect some larger systemic issue. I
can’t know that and there is no way, based on the
evidence that is available to [the defendant], that he
can know that, and the reason he can’t know that is the
state refuses to keep that data.’’ Also, defense counsel
argued that the Judicial Branch, bound by statute ‘‘to
assure a nondiscriminatory [venire] panel,’’ had seem-
ingly demonstrated its ‘‘wilful blindness’’ with respect
to the issue by not compiling or maintaining data with
respect to the racial composition of venire panels. He
went on to argue that there seemingly had been a lack
of any commitment to ensure ‘‘any people of color in
this panel . . . .’’
The prosecutor objected to the defendant’s motion
on the ground that, in light of the lack of racial and
ethnic information for many of the venirepersons at
issue, the defendant had failed to demonstrate that the
state had substantially underrepresented a particular
group of prospective jurors. Moreover, the prosecutor
argued, the defendant had not demonstrated any wilful
or systematic discrimination by way of the race-blind
procedures employed in the present case.
By way of a thorough and well reasoned memoran-
dum of decision, the court denied the defendant’s
motion to strike the venire panel. The court discussed
in detail the evidence presented by the defendant at
the hearing on the motion. Among its findings, the court
stated: ‘‘A total of 117 potential jurors appeared in Nor-
wich throughout the jury selection process . . . . On
a number of occasions during jury selection, counsel
for the defendant observed that there were no males
who appeared to be African-American on the Norwich
jury panels. Counsel observed that there were a total
of three females who appeared to be African-American
(one of whom was selected to serve on the jury) and
one male who indicated on his questionnaire that he
was Hispanic/Latino.’’
The court also found: ‘‘No jurors are systematically
excluded on the basis of race. None of the witnesses
who testified had any way of knowing the racial makeup
of the jurors summoned for jury duty in this or any
other case other than [from] the information provided
voluntarily on the confidential juror questionnaire,
which is available for use during voir dire of the particu-
lar individual and not retained or recorded.’’
In addressing the defendant’s sixth amendment fair
cross section claim, the court observed that, under
Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58
L. Ed. 2d 579 (1979), the defendant bore the burden of
proving that ‘‘(1) the group claimed to be excluded is
distinctive in the community, (2) the representation of
the group in the jury pool is not fair and reasonable in
relation to the number of members of the group in
the community, and (3) the underrepresentation is the
result of systematic exclusion of the group in the jury
selection process.’’ (Internal quotation marks omitted.)
The court, assuming for purposes of its analysis that
African-American males were distinctive in the commu-
nity, stated that ‘‘the defendant has presented no evi-
dence of any statistical analysis to support his claim
and no evidence from which the court could conclude
any degree of underrepresentation. He points to census
data showing that black people represent 6.5 percent
of the population of New London County and 11.1 per-
cent of the state of Connecticut. . . . He observed that
three jurors in the pool were females who appeared to
be African-American or who represented themselves as
such on the questionnaire. He concedes that he offered
no other data as to the racial makeup of the panel or
the percentage of the group in the pool, claiming the
information was simply not available. The witnesses
testified credibly that no information was maintained
as to the racial or ethnic makeup of jurors reporting
for jury duty in this judicial district. Although there is
a section on the confidential jury questionnaire where
jurors may enter that information voluntarily, they are
not required to do so. The defendant argues that the
action of the state in failing to record or require such
information effectively precludes him from satisfying
his burden. The defendant, however, provides no
authority in support of his contention that the state is
required to maintain information on how jurors identify
themselves racially, and the court declines to find such
a requirement. The defendant has therefore failed in
his proof, having offered insufficient evidence of the
racial makeup of the jury pool or any statistical support
for the claim that the group is underrepresented in
the pool.
‘‘Even if, however, the court were to find that the
group was underrepresented or that the actions of the
state in failing to maintain records concerning the racial
composition of jury pools precluded the defendant from
meeting his burden in this regard, his claim nevertheless
fails because he specifically concedes that he has not
shown systematic exclusion of any group in the jury
selection process. Inasmuch as the defendant has failed
to establish this third prong of the proof required . . .
his challenge to the array on this ground fails.
‘‘The defendant’s claim that failure to take action
with regard to delinquent jurors leads to underrepresen-
tation of a distinctive group also fails since there is no
evidence before the court as to the racial makeup of
delinquent jurors or any evidence that the representa-
tion of jurors from a distinctive group would be affected
by enforcement action.’’ (Citation omitted.)
In addressing the equal protection aspect of the
defendant’s claim, the court observed that, under Cas-
taneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51
L. Ed. 2d 498 (1977), the defendant could establish his
claim by proof of ‘‘(1) underrepresentation of a recog-
nizable group; (2) substantial underrepresentation over
a significant period of time; and (3) a selection proce-
dure susceptible to abuse or not racially neutral.’’ (Inter-
nal quotation marks omitted.)
In rejecting the defendant’s claim, the court stated:
‘‘This claim fails . . . because the third prong . . .
requires proof of discriminatory intent. . . . The defen-
dant has conceded that he has not shown discriminatory
intent. Here . . . the defendant has produced no evi-
dence that Connecticut’s jury selection system is capa-
ble of deliberately and systematically denying African-
American males the opportunity to be selected for jury
service by excluding them from jury arrays. . . . Thus,
the failure to show discriminatory intent requires denial
of the defendant’s equal protection claim.’’ (Citations
omitted; internal quotation marks omitted.)
A
We first address the defendant’s fair cross section
claim. ‘‘Fair cross section claims are governed by a well
established set of constitutional principles. In order to
establish a violation of his federal constitutional right
to a jury drawn from a fair cross section of the commu-
nity, the defendant must demonstrate the following: (1)
that the group alleged to be excluded is a distinctive
group in the community; (2) that the representation of
his group in venires from which juries are selected is
not fair and reasonable in relation to the number of
such persons in the community; and (3) that this under-
representation is due to systematic exclusion of the
group in the jury-selection process. . . . [I]n a fair
cross section claim, the defendant need not prove
intent. [S]ystematic disproportion itself demonstrates
an infringement of the defendant’s interest in a jury
chosen from a fair community cross section. The only
remaining question is whether there is adequate justifi-
cation for this infringement.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Gibbs, 254 Conn.
578, 588, 758 A.2d 327 (2000).
‘‘[W]e review the [trial] court’s factual determinations
relevant to the defendant’s Sixth Amendment . . .
challenge for clear error . . . but we review de novo
the court’s legal determination whether a prima facie
violation of the fair cross section requirement has
occurred.’’ (Internal quotation marks omitted.) Id., 592.
The defendant has not undermined our confidence
in the factual determinations reached by the trial court
or in the correctness of its legal analysis of the claim.
The defendant failed to present evidence to demon-
strate that the representation of African-American
males in venires from which juries are selected was
not fair and reasonable in relation to the number of such
persons eligible to serve as jurors in the community. It
suffices to observe that defense counsel provided the
court with his best guess with respect to the race and
ethnicity of all of the prospective jurors at issue in
the present case, but did not provide the court with
competent evidence of the racial and ethnic characteris-
tics of all of the prospective jurors.4 Additionally, to the
extent that the defendant argues that there is substantial
underrepresentation in the entire New London jury
pool, he did not even purport to provide the court with
any evidence with respect to the racial and ethnic com-
position of that jury pool generally. Furthermore, the
only evidence that arguably was relevant to demonstra-
ting the proportion of African-American males who
should have been part of venires that represented a fair
cross section of the community, was the general census
data on which the defense relied. Yet this census data
provided information with respect to the percentage of
all African-Americans in Connecticut and New London
County. Thus, it was not probative with respect to the
inquiry at issue, which necessarily focuses on the per-
centage of African-American males that are eligible for
jury service. In light of the dearth of evidence with
respect to the relevant factors at issue in the present
claim, we conclude that the defendant has not demon-
strated that the court erroneously rejected his fair cross-
section claim.
B
Next, we address the defendant’s equal protection
claim. ‘‘An equal protection violation in jury selection
procedures may be established by proof of (1) underrep-
resentation of a recognizable group; (2) substantial
underrepresentation over a significant period of time;
and (3) a selection procedure susceptible to abuse or
not racially neutral.’’ (Internal quotation marks omit-
ted.) Id., 594. ‘‘Although the equal protection test is
similar to the cross section test, the critical difference
is that in an equal protection claim the defendant must
prove discriminatory purpose.’’ (Emphasis added.)
State v. Castonguay, 194 Conn. 416, 421, 481 A.2d 56(1984).
As discussed in part I A of this opinion, the defendant
failed to demonstrate that substantial underrepresenta-
tion of African-American males had occurred. Thus,
it follows that he also failed to demonstrate that any
underrepresentation had occurred over a significant
period of time. Moreover, the court found, and we agree,
that the defendant failed to present any evidence to
demonstrate that the jury selection system was capable
of abuse in the manner suggested. The undisputed evi-
dence presented by the defendant reflected that Judicial
Branch officials were unaware of the racial and ethnic
characteristics of persons summoned for jury duty and
that, to the extent that prospective jurors voluntarily
provided information related to their race or ethnicity
on their confidential juror questionnaire, such informa-
tion was not retained or recorded. Finally, the defendant
failed to present any evidence that discriminatory intent
exists. In the course of argument defense counsel stated
to the trial court that the defense lacked any basis upon
which to suggest that there was a systemic effort to
exclude any potential jurors from jury arrays. In light
of the defendant’s failure of proof, the court correctly
rejected his equal protection claim.
C
Last, the defendant urges this court, in the exercise
of its supervisory authority over the administration of
justice, ‘‘to enforce the collection of demographic data
to permit analysis of the diversity of jury panels in Con-
necticut.’’
‘‘Supervisory authority is an extraordinary remedy
that should be used sparingly . . . . Although [a]ppel-
late courts possess an inherent supervisory authority
over the administration of justice . . . [that] authority
. . . is not a form of free-floating justice, untethered
to legal principle. . . . Our supervisory powers are not
a last bastion of hope for every untenable appeal. They
are an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole. . . . Consti-
tutional, statutory and procedural limitations are gener-
ally adequate to protect the rights of the defendant and
the integrity of the judicial system. Our supervisory
powers are invoked only in the rare circumstance [in
which] these traditional protections are inadequate to
ensure the fair and just administration of the courts.
. . . Overall, the integrity of the judicial system serves
as a unifying principle behind the seemingly disparate
use of our supervisory powers. . . . Thus, we are more
likely to invoke our supervisory powers when there is
a pervasive and significant problem . . . or when the
conduct or violation at issue is offensive to the sound
administration of justice . . . .’’ (Internal quotation
marks omitted.) State v. Fuller, 158 Conn. App. 378,
392, 119 A.3d 589 (2015).
The defendant asserts that the requested remedy is
necessary to ensure that the Judicial Branch is able to
follow its statutory mandate ‘‘to enforce nondiscrimina-
tion in jury selection . . . .’’ General Statutes § 51-232
(c).5 The defendant argues that ‘‘[t]he need to acknowl-
edge the defendant’s right to a jury reflecting a fair
cross section of the community, and to encourage the
public trust in the jury process requires that action be
taken to address the lack of diversity in jury panels
such as the one here.’’
We decline to grant the defendant the extraordinary
remedy that he seeks. As a preliminary matter, the
defendant’s request is supported by an unproven prem-
ise, namely, that the jury panels at issue in the present
case reflected significant underrepresentation of a rec-
ognized group or were not representative of a fair cross
section of the community. Moreover, it is difficult to
discern how the relief sought by the defendant—the
collection of information related to the race and eth-
nicity of all prospective jurors—would comport with
the plain language of § 51-232 (c), which expressly
states that prospective jurors need not provide such
information.6
II
Next, the defendant claims that the court improperly
denied his motion to suppress evidence relating to iden-
tifications of him that were made to the police by several
witnesses. The defendant argued that the identifications
were the result of the use of impermissibly suggestive
photographic array procedures. We disagree.
The following facts are relevant to the present claim.
Defense counsel raised the suppression motion orally,
prior to trial. The court held a hearing related to the
motion on November 30, 2012, and December 6, 2012.
At the hearing, the court heard testimony from Sergeant
Patrick Mickens, Sergeant Corey Poore, Detective
James Curtis, and Officer Greg McDonald, all of the
Norwich Police Department. In its thorough memoran-
dum of decision related to the motion to suppress, the
court explicitly stated that it had credited as true the
testimony of these witnesses. The court made the fol-
lowing findings of fact: ‘‘Mickens responded to the
scene of a shooting on Lake Street in Norwich in the
late evening of August 26, 2010, having been notified
by [Harris] . . . whom he knew as a confidential infor-
mant [and] with whom he had worked for at least a
year. She was upset and crying, and stated that she
had just seen someone shot in front of her. Sergeant
Mickens took [Harris] in his unmarked car directly to
the Norwich Police Department. She was placed in an
interview room, [and] provided with something to drink
and tissues. After she had composed herself, she was
interviewed. She did not speak to anyone on the way
to the police department. Mickens showed her two
[photographic] arrays together with written witness
instructions in the early morning hours of August 27,
2010. On one (Defendant’s Exhibit A), she identified an
individual she knew to be ‘Boo’ in photograph number
2. On the other (Defendant’s Exhibit B), she identified
an individual she knew to be ‘Soda Pop’ in photograph
number 7. Harris signed and initialed both [photo-
graphic] arrays. . . .
‘‘McDonald . . . testified that he was assigned to
investigate the shooting on Lake Street on August 26,
2010. He stated that he maintained a database of street
names and was assigned to meet with two witnesses
who wished to meet at a location other than the Nor-
wich Police Department. On August 27, 2010, McDonald
met with two witnesses, Denise Djedje and [Hill], in a
secluded area near a church parking lot. He separated
the witnesses, that is, while he spoke with Djedje, Hill
was standing farther away drinking coffee and having
a cigarette. He had no concerns that his conversations
with one were overheard by the other. He showed
Djedje two [photographic] arrays together with the writ-
ten witness instructions for [photographic] identifica-
tion (Defendant’s Exhibit D). In one, she identified the
person in photograph number 2 as ‘Boo,’ and stated
[that] she was ‘100 percent positive he did the shooting.’
In the other, she identified the person in photograph
number 7 as ‘Soda Pop.’ Djedje signed and initialed both
arrays. Similarly, Hill was shown two [photographic]
arrays with instructions (Defendant’s Exhibit E). In one,
she identified the person in photograph number 2 as
‘Boo,’ stating, ‘[t]hat’s Boo. One hundred percent posi-
tive.’ In the other, she identified the person in photo-
graph number 7 as ‘Soda Pop.’ Hill signed and initialed
both [photographic] arrays.
‘‘Norwich police Sergeant Corey Poore testified that
he was assigned to the investigation into the shooting
death on Lake Street in Norwich on August 27, 2010.
As part of his assignment, he showed a [photographic]
array with written witness instructions to [Reeves] on
August 31, 2010. He testified that Reeves came to the
police department voluntarily to provide information.
She identified the person in photograph number 2 as
‘‘ ‘Boo’ and the person who I saw shoot ‘Big Man.’ ’’
(Defendant’s Exhibit F.) She signed and initialed the
[photographic] array. Sergeant Poore testified that
[Reeves] was fearful and she was placed into hiding.7
Poore also showed a [photographic] array with written
witness instructions to Tjamel Hendrickson. (Defen-
dant’s Exhibit G.) This array differed from the array
reflected in defendant’s exhibits A, D, E, F and I. On
that [photographic] array, Hendrickson identified the
person in photograph number 2 as ‘S.A.’ and stated
under witness comments regarding identification: ‘S.A.
is the same person I saw walk down the street toward
Lake Street just before the murder. S.A. came back a
short time later by himself.’ (Defendant’s Exhibit G.)
Hendrickson signed and initialed the array. . . .
‘‘Norwich police Detective James Curtis testified that
he was assigned to the investigation into the shooting
on August 26, 2010, and arrived at the crime scene
shortly before midnight. In the early morning hours of
August 27, 2010, he showed [photographic] arrays to
two individuals at the Norwich Police Department,
namely, Ms. Hutchinson and [Hendrickson], also known
as ‘Soda Pop.’ These two arrived at the police depart-
ment independently. Detective Curtis first interviewed
Ms. Hutchinson, who then left.8 Approximately ninety
minutes later, Hendrickson was brought into the police
department by Officer Delmar Carter and Mickens. Hen-
drickson was shown a [photographic] array and pointed
to the individual in photograph number 2. He answered
affirmatively that the person in photograph number 2
was the person known to him as ‘Boo-Boo.’ (Defen-
dant’s Exhibit I.) He signed and initialed the array. . . .
‘‘Each of the five individuals who made the identifica-
tions reflected in defendant’s exhibits A, D, E, F and I,
also placed their initials next to each line of the written
witness instructions for [photographic] identifications.
The instructions specifically stated that ‘[t]he person
you saw may or may not be in these photographs.’
Defendant’s Exhibits A, D, E, F and I all reflect the
same [photographic] array in which the defendant is
depicted at position number 2.’’ (Emphasis in original;
footnotes altered.)
The court aptly summarized the argument advanced
by the defendant in support of his motion to suppress
the identification evidence, in which he essentially
asserted that anything other than a ‘‘random presenta-
tion’’ in each of the photograph arrays rendered the
identifications unreliable, as follows: ‘‘The defendant
makes the sole claim that the identification procedures
followed here were impermissibly suggestive because
in each array shown to the witnesses in which he was
identified, the defendant’s photograph appeared in the
same position, that is, position number 2. He argues
that there was no effort on the part of law enforcement
to ensure that the witnesses had no contact with each
other and that the procedures followed created a risk
that people will repeat what they have heard from
others.’’
After setting forth relevant legal principles governing
the claim, the court stated its reasoning as follows:
‘‘The court finds that there was no evidence that the
[photograph] arrays or the procedure employed in
obtaining the identifications were unnecessarily sugges-
tive. The actions of the law enforcement officers in
obtaining the identifications were appropriate in all
respects. The defendant’s photograph was not promi-
nently displayed or highlighted, and proper instructions
were given to the witnesses, who were each interviewed
individually. Specifically, each of the witnesses was
advised of the procedure in writing, and placed their
initials next to each of the instructions, including the
instruction that the person they saw ‘may or may not’
be in the photographs. . . . There was no evidence
that officers were anything other than neutral in admin-
istering the identification procedure, and the defendant
makes no claim that the officers attempted to influence
the witnesses in making their identifications. The offi-
cers in fact made efforts to separate the witnesses, and
no identifications were made or even attempted in the
presence of or within earshot of other witnesses. There
was no evidence that the witnesses had contact with
each other, or attempted to have contact with each
other, concerning the identification. Indeed, the only
claim made here is that the witnesses were shown
arrays in which the defendant appeared in the same
position, position number 2. There is no requirement
under the circumstances presented here that the offi-
cers reconfigure [photograph] arrays shown to different
witnesses.’’ (Citation omitted.) Having concluded that
there was no evidence that the identifications resulted
from an unnecessarily suggestive procedure, the court
denied the motion to suppress.
‘‘[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).
‘‘Due process requires that [eyewitness] identifica-
tions [may be admitted at trial] only if they are reliable
and are not the product of unnecessarily suggestive
police procedures. . . . Because reliability is the linch-
pin in determining the admissibility of identification
testimony . . . a two part test has developed to make
that determination. . . . In determining whether iden-
tification 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 sugges-
tive; and second, if it is found to have been so, it must be
determined whether the identification was nevertheless
reliable based on examination of the totality of the
circumstances. . . .
‘‘Therefore, [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 identi-
fication. . . . [T]he entire procedure, viewed in light
of the factual circumstances of the individual case . . .
must be examined to determine if a particular identifica-
tion is tainted by unnecessary suggestiveness. The indi-
vidual 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. . . . In making this
determination, the court should focus on two factors.
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. . . . The failure of a police officer to provide an
affirmative warning to witnesses that the perpetrator
may or may not be among the choices in the identifica-
tion procedure is one circumstance that may increase
the likelihood of a mistaken identification. . . .
‘‘[A] challenge to a trial court’s conclusion regarding
whether the pretrial identification procedure was
unnecessarily suggestive presents a mixed question of
law and fact. . . . [B]ecause [however] the issue of the
reliability of an identification involves the constitutional
rights of an accused . . . we are obliged to examine
the record scrupulously to determine whether the facts
found are adequately supported by the evidence and
whether the court’s ultimate inference of reliability was
reasonable. . . . [W]e will not disturb the findings of
the trial court as to subordinate facts unless the record
reveals clear and manifest error.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Outing, 298 Conn. 34, 47–50, 3 A.3d 1 (2010),
cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed.
2d 316 (2011).
Before this court, the defendant reiterates the claim
that he raised before the trial court. His claim is based
on the undisputed evidence that the same array, with
his photograph in position number two, was shown to
each of the witnesses at issue. In challenging the trial
court’s resolution of his motion to suppress, however,
the defendant sets forth a discrete argument; he argues
that the trial testimony of Reeves undermined the
court’s finding that the witnesses did not have contact
with each other concerning their identification of the
defendant by means of the photograph arrays.
As set forth previously, among the findings made by
the court in support of its conclusion that the identifica-
tions were not the result of an identification procedure
that, as the defendant claims, was unnecessarily sugges-
tive because of the fact that the identical photograph
array was shown to several witnesses who may have
had contact with one another concerning the composi-
tion of the array, was that ‘‘[t]here was no evidence
that the witnesses had contact with each other, or
attempted to have contact with each other, concerning
the identification.’’ In accordance with the standard of
review set forth previously in this opinion, we must
scrupulously examine the entire record, including the
trial testimony on which the defendant relies, to deter-
mine whether the court’s finding is supported by sub-
stantial evidence.
The defendant does not challenge the court’s detailed
findings of fact related to the testimony of Mickens,
McDonald, Poore, and Curtis with respect to the manner
in which they administered the photograph arrays at
issue. As set forth previously in this opinion, the court
found that on August 27, 2010, the day following the
shooting, McDonald met with Djedje and Hill in a
church parking lot, where he showed photograph arrays
to each witness separately, and neither was able to hear
or observe how the other’s identification procedure was
being conducted. Each witness identified the defendant
in position number two. The court found that, on August
31, 2010, Poore met with Reeves at the police depart-
ment, where he showed her a photograph array. Reeves
identified the defendant in position number two. There
was no claim raised by the defendant that the photo-
graph arrays themselves were inherently suggestive.
Having reviewed the evidence presented at the suppres-
sion hearing, we agree with the court that there was
no evidence that the police had attempted to influence
the witnesses or that the police administered the arrays
in such a manner that the identification of one witness
could have influenced the identification of another wit-
ness. There was no evidence presented at the suppres-
sion hearing that the identification made by any witness
had been influenced by another witness.
The defendant draws our attention to the trial testi-
mony of Reeves and, because of our obligation to scru-
pulously examine the entire record to determine
whether the trial court’s findings are supported by sub-
stantial evidence, we will examine that testimony. By
way of establishing her familiarity with the defendant,
Reeves testified that, prior to the time of the shooting,
she had been in the defendant’s presence and that she
had made ‘‘[s]mall talk’’ with him. She testified that she
observed the defendant and the victim engaged in an
argument and, later that evening, she observed the
defendant shoot the victim.
During cross-examination, Reeves testified that in the
five days between the shooting and the time that she
provided information to the police, she discussed the
shooting incident with Hill and Djedje, with whom she
was residing. The following colloquy between defense
counsel and Reeves occurred:
‘‘Q. . . . But you did get a chance in the five days
that passed between the shooting to talk about this
case with [Hill] and [Djedje], correct?
‘‘A. Yes.
‘‘Q. How often did you talk about it with them?
‘‘A. I only said what I saw.
‘‘Q. I didn’t ask you that. How often did you talk with
them about it?
‘‘A. I only probably said it about once.
‘‘Q. About once?
‘‘A. Yes.’’
After defense counsel established that, following the
shooting, Reeves had resided with Hill and Djedje, the
following exchange occurred:
‘‘Q. And this was a shocking event, correct?
‘‘A. Yes.
‘‘Q. An event that you certainly talked about more
than once as you tried to process the horror of seeing
a man die before your very eyes; isn’t that right?
‘‘A. I really did not mention it too much because of
how scared I was.
‘‘Q. Hmm?
‘‘A. I did not come up with it too many times because
of how scared I was. I used to keep a lot of things in.
‘‘Q. Okay. Okay. Did they talk about it while you
listened?
‘‘A. Not too much, but they did with them alone. But
I never added into the conversation.
‘‘Q. So, you never heard anything?
‘‘A. I heard things, but I just never really studied it
to the point where I wanted to listen to it.’’
Although the defendant characterizes Reeves’ testi-
mony as evidence that her pretrial identification of the
defendant was influenced by conversations that she
had with Hill and Djedje, following their pretrial identifi-
cations of the defendant, a careful review of Reeves’
testimony does not reasonably support such an infer-
ence. At no point did Reeves testify that Hill, Djedje,
or anyone else had discussed their identifications of the
defendant with her or with anyone else. There simply is
no basis on which to presume that anyone discussed
the photograph arrays that had been shown to Hill,
Djedje or any other witness, or that any prior identifica-
tion had influenced that made by Reeves. Not surpris-
ingly, Reeves testified that the shooting itself had been
a topic of conversation, at least in one instance, between
herself, Hill, and Djedje. We reject the defendant’s inter-
pretation of this testimony as evidence that Reeves was
exposed to any information with respect to the photo-
graph arrays shown to other witnesses. Accordingly,
the defendant is unable to demonstrate that the court’s
findings were not supported by substantial evidence or
that the denial of his motion to suppress was erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
There was evidence that the victim also was known as ‘‘Big Man.’’
2
See General Statutes § 51-222a.
3
The language on the questionnaire states: ‘‘Pursuant to [General Statutes
§ 51-232 (c)] information concerning race and ethnicity is required solely
to enforce nondiscrimination in jury selection. The furnishing of this informa-
tion is not a prerequisite to being qualified for jury service. This information
need not be furnished if you find it objectionable to do so.’’
4
We observe that a great number of the confidential juror questionnaires
that were marked as court exhibits do not reflect any information with
respect to the race and ethnicity of the prospective jurors, and that the
record does not otherwise furnish a basis upon which to ascertain the race
and ethnicity of every prospective juror.
5
General Statutes § 51-232 (c) provides: ‘‘The Jury Administrator shall
send to a prospective juror a jury confirmation form and a confidential juror
questionnaire. Such questionnaire shall include questions eliciting the juror’s
name, age, race and ethnicity, occupation, education and information usually
raised in voir dire examination. The questionnaire shall inform the prospec-
tive juror that information concerning race and ethnicity is required solely
to enforce nondiscrimination in jury selection, that the furnishing of such
information is not a prerequisite to being qualified for jury service and that
such information need not be furnished if the prospective juror finds it
objectionable to do so. Such juror confirmation form and confidential juror
questionnaire shall be signed by the prospective juror under penalty of false
statement. Copies of the completed questionnaires shall be provided to the
judge and counsel for use during voir dire or in preparation therefor. Counsel
shall be required to return such copies to the clerk of the court upon
completion of voir dire. Except for disclosure made during voir dire or
unless the court orders otherwise, information inserted by jurors shall be
held in confidence by the court, the parties, counsel and their authorized
agents. Such completed questionnaires shall not constitute a public record.’’
(Emphasis added.)
6
The defendant does not expressly argue that this court should direct
the jury administrator to collect such information for all prospective jurors.
Yet, if this court were to direct the jury administrator to collect such informa-
tion from only those jurors who voluntarily provide it, the resulting data,
reflecting information concerning some but not all prospective jurors, would
not provide an accurate basis on which to assess the racial and ethnic
characteristics of prospective jurors as a whole.
7
At the suppression hearing, Poore testified that Reeves was ‘‘placed into
hiding’’ for an indeterminate period of time because she feared for her
physical safety. Poore did not explain in detail what ‘‘placed into hiding’’
entailed, except to state that ‘‘it wasn’t anything that was provided by the
city or the state. It was more just kind of a safe haven for [Reeves].’’
8
The court further stated in its memorandum of decision: ‘‘The state
represented that it did not intend to offer evidence concerning Ms. Hutchin-
son’s identification.’’