Judicial District of Hartford


      Criminal; Identification Evidence; Whether Victim’s Identifications of Defendant were Unreliable; Whether the Doctrine of Harmless Error may be used to Uphold a Conviction Where Unreliable Identification Evidence was Improperly Admitted.  The defendant was convicted of assault in the first degree as an accessory.  On appeal, he argued that the trial court abused its discretion by denying his motion to suppress the out-of-court and in-court identifications of him by the victim, Alexis Otero.  He claimed that, although the court properly found that the police’s pretrial identification procedure was unnecessarily suggestive, it improperly concluded that Otero’s identifications of him were nevertheless reliable.  The Appellate Court (136 Conn. App. 568) agreed, finding first that the trial court properly concluded that the pretrial identification procedure was unnecessarily suggestive.  Applying the factors outlined in Manson v. Brathwaite, 432 U.S. 98 (1977), for gauging the reliability of identifications produced by unnecessarily suggestive procedures, the Appellate Court next determined that Otero’s identifications were unreliable under the totality of the circumstances.  The court emphasized that Otero consumed at least four beers prior to the altercation, that the record was unclear regarding the sufficiency of the lighting at the location of the assault and that Otero and his assailant were face-to-face for only a few seconds.  The court also stressed that Otero was unable to provide a description of the clothes worn by his assailant, that his testimony regarding the location of the assailant immediately before the incident was contradicted by other evidence and that he was under stress at the time of the assault.  The court further found, among other things, that, while Otero testified that he identified the defendant as his assailant with certainty, little weight should be accorded to Otero’s level of certainty given that the identification procedure was unnecessarily suggestive.  The court explained that a police officer told Otero that the photograph he was being shown was that of the defendant who was a suspect in the case.   It further pointed out that Otero was not shown the defendant’s photograph until several months after the date of the offense.  As to whether the defendant was harmed by the admission of the identifications, the court noted that, under State v. Gordon, 185 Conn. 402 (1981), the doctrine of harmless error may not be used to uphold a conviction where the trial court improperly admitted unnecessarily suggestive and unreliable identification evidence.  It concluded that, to the extent that the doctrine was applicable, the admission of the identifications here was not harmless because the evidence against the defendant was far from overwhelming and because the state relied heavily on the identifications in making its case.  The Supreme Court granted the state certification to appeal, and it will consider whether the Appellate Court properly determined that the admission of Otero’s identifications following a suggestive police display of the defendant’s photograph was a reversible due process violation under Manson v. Brathwaite.  The court will also consider whether the holding in State v. Gordon that harmless error review is unavailable for identification evidence should be overruled and, if so, whether the Appellate Court properly determined that the admission of the identifications here was not harmless.  As to the first issue, the defendant urges that Connecticut abandon the Manson standard and adopt a new test under the state constitution for gauging the reliability of eyewitness identifications.