State v. Artis

314 Conn. 131

101 A.3d 915

STATE of Connecticut

v.Troy ARTIS.

No. 19035.

Supreme Court of Connecticut.

Argued Dec. 11, 2013.

Decided Oct. 21, 2014.

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony Bochiccio, senior assistant state's attorney, for the appellant (state).

Lisa J. Steele, assigned counsel, for the appellee (defendant).

Nicole E. Feit and David W. Ogden, pro hac vice, filed a brief for the American Psychological Association as amicus curiae.

Todd D. Fernow, Timothy H. Everett and John T. Walkley, Milford, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Charles D. Ray, Hartford, filed a brief for the Innocence Project as amicus curiae.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

Opinion

PALMER, J.

Following an incident in which the defendant, Troy Artis, allegedly aided two other individuals in assaulting and seriously wounding the victim, Alexis Otero, a jury found the defendant guilty of accessory to assault in the first degree by means of a dangerous instrument in violation of General Statutes §§ 53a–59 (a)(1) and 53a–8 (a). The trial court rendered judgment in accordance with the jury verdict,¹ and the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly had denied his motion to suppress Otero's out-of-court and in-court identifications of the defendant as one of his assailants. State v. Artis, 136 Conn.App. 568, 585, 47 A.3d 419 (2012). The Appellate Court, with one judge dissenting in part, agreed with the defendant, concluding that the trial court's denial of the defendant's motion to suppress Otero's identifications violated the defendant's right to due process because the use of an unnecessarily suggestive procedure by the police rendered the identifications unreliable. See id. at 608, 47 A.3d 419. Relying on State v. Gordon, 185 Conn. 402, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), in which this court concluded that “sound judicial policy requires reversal whenever the erroneous admission of an unnecessarily suggestive and unreliable identification has violated a defendant's constitutional rights”; id. at 420, 441 A.2d 119 ; the Appellate Court reversed the trial court's judgment. See State v. Artis, supra, at 608–609, 613, 617, 47 A.3d 419. The Appellate Court further determined that, even if the rule of per se reversibility that this court adopted in Gordon was not applicable, the defendant nevertheless was entitled to a new trial because the state had failed to meet its burden of establishing that its use of Otero's identification testimony was harmless beyond a reasonable doubt. Id. at 617, 441 A.2d 119. We granted the state's petition for certification to appeal, limited to the following three issues: First, “[d]id the Appellate Court majority properly determine that admission of [Otero's] in-court and out-of-court identifications following a suggestive police display of the defendant's photograph was a ... due process violation under Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ?”² State v. Artis, 307 Conn. 909, 910, 53 A.3d 999 (2012). Second, “[i]f the answer to the first question is affirmative, should this court expressly overrule the holding [in Gordon] that harmless error review is unavailable for identification evidence ...?” Id. Third, “if so, did the Appellate Court majority properly determine that the identification evidence was not harmless?” Id. We need not address the first issue because, even if we assume, without deciding, that the trial court improperly denied the defendant's motion to suppress Otero's identification testimony, we conclude, contrary to our holding in Gordon, that the improper admission of such evidence is subject to harmless error analysis. We also conclude that the state's use of Otero's identification testimony was harmless. Accordingly, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following procedural history and facts that the jury reasonably could have found. “At approximately 11 p.m. on February 14, 2008, [Otero] drove some of his friends to Club Blu on Ann Street in [the city of] Hartford where he was sometimes employed as a bouncer. Approximately [one-half] hour later, Otero walked two blocks from Club Blu to Club NV near the corner of Allyn and High Streets.

“[That] same evening, Christina Miano also went to Club NV together with her ... boyfriend, Robert Acevedo, and his sister, Anna Acevedo, and Anna's boyfriend, the defendant. Robert Acevedo drove the four of them to Hartford in his silver Infiniti.... At approximately 11 p.m., as the four walked toward Club NV, the defendant, who carried a knife on his belt, asked Robert Acevedo for the keys to the Infiniti so he could put his knife [away] before undergoing a security check at Club NV. Miano and Anna Acevedo went on ahead to Club NV, where they socialized apart from the defendant and Robert Acevedo.

“Near closing time, Otero, who knew Miano, visited with her for several minutes. At the time, he [was unaware] that Miano had arrived with Robert Acevedo, whom he did not know. Otero routinely photographed people at nightclubs for a radio station website, and that night he took a photograph of Miano and Anna Acevedo.

“At closing time, Otero left Club NV to return to Club Blu. Miano left Club NV at approximately the same time and got into the Infiniti with Robert Acevedo and Anna Acevedo. She sat in the front seat next to Robert Acevedo as the three, uncertain of the defendant's whereabouts, waited for him to join them. Miano saw Otero and beckoned for him to come speak with her, which he did. Once the conversation was over, as Otero crossed High Street on his way to Club Blu, Robert Acevedo drove the Infiniti straight toward him. Otero jumped onto the sidewalk and yelled an obscenity at Robert Acevedo, who apologized. According to Miano, Robert Acevedo thought that Otero had ‘disrespect[ed]’ him by talking with her.

“Shortly thereafter, the defendant opened the rear passenger door of the Infiniti from the outside, entered the automobile briefly and quickly exited to confront Otero. The defendant and Otero exchanged profanities, and the defendant then punched Otero in the face and shoulder as the two men engaged in a face-to-face fist-fight that lasted somewhere between two and ten seconds. Seconds after the fistfight commenced, Robert Acevedo and Anna Acevedo got out of the Infiniti and approached the defendant and Otero. Otero was then struck from behind, causing him to fall to the sidewalk. While he was on the sidewalk, Otero was on all fours covering his head. For approximately ten to twenty seconds, he felt three or four people assault him from different directions. Miano got out of the automobile when she saw Robert Acevedo, Anna Acevedo and the defendant all crowded around Otero while he was on the ground.... Miano then ‘grabbed Anna off’ Otero, and the two women began to argue. During the assault on Otero, Miano did not see a weapon or a knife. At some point, she dropped her cell phone.

“As Hector Robles, a Hartford police officer, walked toward the group of people surrounding Otero, others on the street called out, ‘cops....' The fight broke up, and the crowd dispersed. The defendant, Miano, Robert Acevedo and Anna Acevedo got into the Infiniti and drove away. Anna Acevedo continued to express displeasure with Miano and wanted to fight her. Robert Acevedo instructed the two women to stop, and he took Miano to her mother's home in order to separate the two women. According to Miano, while they were driving from the scene, Anna Acevedo asked the defendant, ‘where'd that blood come from?’ Miano stated that she never looked at the defendant again after he got back into the automobile. Later, another police officer found blood splattered on the sidewalk.

“When Otero got up from the sidewalk, the Infiniti was gone. He saw a cell phone and put it in his pocket. He also saw that his hand was bleeding heavily. He walked to Club Blu where he knew he would find a police officer and familiar people to help him. Jessie Rego, who was working at the door of Club Blu, observed that the cut in Otero's thumb was so deep that he could see the bone. Rego also saw blood coming from Otero's stomach. A police officer found a trail of blood between Club NV and Club Blu.

“Otero was transported by ambulance to Hartford Hospital (hospital). Although Otero has no recollection of being transported to or arriving at the hospital, he remembers going into an operating room, where he was treated for seven puncture wounds to his torso, arms and hand. Twenty sutures and fifty staples were required to close Otero's wounds. As a result of his injuries, Otero is no longer able to exercise as he once did, and walking is difficult due to an injury he sustained to his knee.

“Although Otero has no recollection of talking to a police officer at the hospital, he was, in fact, interviewed by Sergeant Jeff Rousseau soon after arriving at the hospital. Rousseau testified that Otero told him that his assailants, two men and a woman, were in a newer, gray Infiniti. He described both men as light-skinned black males, approximately twenty-seven to twenty-eight years old. The stockier of the two men had freckles on his face. According to Rousseau, Otero was not sure that he could identify the perpetrators, but he did not rule out identification. Otero gave Rousseau Miano's cell phone.

“The defendant was arrested ... and subsequently was charged³ with assault in the first degree while aided by two or more persons in violation of ... § 53a–59 (a)(4), conspiracy to commit assault in the first degree while aided by two or more persons in violation of General Statutes §§ 53a–48 and 53a–59 (a)(4), accessory to assault in the...