****************************************************** 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 subjectto modification andtechnical correction prior to official publication in the Connecticut 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 Connecticut 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 LawJournal andboundvolumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

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### STATE OF CONNECTICUT v

. NATHAN S. JOHNSON (SC 19102)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Vertefeuille, Js. Argued December 11, 2013—officially released July 29, 2014

### Lisa J. Steele, assigned counsel, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene Calistro, senior assistant state’s attorney, for the appellee (state).
CharlesD. Ray filed abriefforthe Innocence Project
as amicus curiae.Opinion 

### VERTEFEUILLE, J. The primary issue that we must resolveinthisappealiswhetherthe dueprocessclauses of the Connecticut constitution provide protection against allegedly unduly suggestive eyewitness identification procedures undertaken by a private actor. The defendant, Nathan S. Johnson, was charged with various criminal offenses in connection with the shooting ofthe victim, Johnnie Jones. Before trial, the defendant filed a motion to suppress the victim’s identification of him as the perpetrator on the ground that it was the result of unnecessarily suggestive police procedures. The trial court denied the motion. The jury ultimately returned a verdict ofguilty on charges ofassault in the first degree in violation ofGeneral Statutes § 53a-59 (a) (1), robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), conspiracyto commitrobbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (1), and carrying a pistol
or revolver without a permit in violation of General Statutes § 29-35 (a). Thedefendantalsowasfoundguilty by the court, B. Fischer, J., of criminal possession of
a firearm in violation of General Statutes § 53a-217 (a) (1),1 

### and the trial court thereafter rendered judgment ofguilty in accordance with the verdict and the court’s finding. The defendant appeals from the judgment of conviction claiming for the first time that the victim’s conduct in identifying the defendant as the perpetrator
was unduly suggestive and that unduly suggestive conduct by a private actor violates the due process provisions ofthe state constitutionevenintheabsence ofany improper state action.2 

### We conclude that eyewitness identifications that are not tainted by any unduly suggestive state action do not implicate the due process provisions ofthe state constitution unless, as with any other form of evidence, the identification was so extremely unreliable that its admission deprived the defendant of his right to a fair trial.
The record reveals the following facts that are either undisputed or were expressly found by the trial court. OnDecember30, 2009, thevictim, whowasthentwentyseven years old, left his job at the Clarion Hotel on Whitney Avenue in New Haven at approximately 3:30 p.m., andtookabustohisresidence at50 GilbertStreet. After taking a nap, he left his residence and walked to
afriend’shouse onAlbert Street, athirtytofortyminute walk. Upon discoveringthathis friendwas not athome, the victim walked to his father’s house at 15 Adam Clayton Powell Place, a five to seven minute walk. He stayedthere forapproximatelythree to fourhours, during which time he helped his father with his computer. He then went to the China Star restaurant on Dixwell Avenue, where he bought some cigarettes. As he was leavingthe restaurant, he saw agroup ofmen, including the defendant. Thevictimhadseenthedefendantbefore

### when they hadplayed ‘‘Pop Warner’’ football as teenagers and, more recently, in a store and in a bar in New Haven. The victim had exchanged handshakes with the defendant twice within the two months preceding December 30, 2009. The victim did not know the defendant’s name. When the victim saw the defendant as he
was leaving the China Star restaurant, theyjust looked at each other. The victim had no quarrel with the defendant.
After leaving the China Star restaurant, the victim went to a convenience store on Dixwell Avenue to get
alight for his cigarettes and to purchase lotterytickets. As he was leaving the store, he saw some friends who asked him if he would like something to drink. The victim had two beers and two shots of gin. At some point, the victim’s friends started smoking embalming fluid, and he decided to walk home. As he walked through the back of the plaza where the convenience store was located, two menjumped out and demanded his money. One of the men started patting him down and taking his belongings, including $5, a cell phone and keys. The person who was patting him down was wearing a purple ‘‘skully’’—an ‘‘open-faced mask’’ that concealed only his hair and ears. He was also holding
a dull silver revolver. Although the lighting was dim, the victim was able to see the facial features ofthe person who was patting him down and to recognize him as the defendant. He
was also able to see the complexion and the eyes of the other person, who was wearing a hat and a black scarf. The victim told the defendant that he knew him and asked him what he was doing. The defendant then said either ‘‘shoot that nigger,’’ ‘‘shoot him,’’ or ‘‘I’m gonna shoot him,’’ at which point the victim ran. As he ran, he heard two shots and felt a burning sensation in his back. The victim then heard two more shots and fell to the ground.
After approximately fifteen minutes, the victim saw
a man walking some dogs and he asked the man to call
an ambulance. The man called 911 on his cell phone and put the phone on speaker mode so that the victim could talk to the dispatcher. The victim told the dispatcher that he had been assaulted by two AfricanAmerican males but, when asked if he could identify his attackers, the victim responded that he could not. The victim testified at the suppression hearing that he denied having recognized the defendant because ‘‘[w]here I’m from you don’t tell. You don’t tell.’’
The victim was taken to Yale-New Haven Hospital, where he was interviewed by Craig Dixon, a detective with the New Haven Police Department (police department). The victim did not tell Dixon that he had recognizedthe defendant. Dixoninterviewedthevictimagain
onJanuary 6, 2010, atwhichpointthevictimtold Dixon thathe had recognized one ofthe attackers as someone

### with whom he had played Pop Warner football. The victim testifiedthat he was willing to identifyhis assailant at that point because, before the interview, he had asked Dixon whether the police would have been able to find out who had shot him ifhe had died, and Dixon had responded, ‘‘no.’’ The victim also testified that he had talked to his family, friends and physicians, who had urged him to tell the police if he knew who had robbed him.
At some point prior to February 20, 2009, the victim decided to search the Internet for photographs of the personwhohebelievedhadshothim. Hefoundaphotograph of that person and four other persons on the social networking site called My Space and printed out the page on which it was posted. On February 20, 2009, Dixon again visited the victim, who was then being treated at Gaylord Hospital in Wallingford, and the victim gave him the printout of the My Space page containing the photograph ofthe person he believed to be his assailant. Thereafter, Dixon logged into the My Space site with the police department’s computer, locatedthepage thatthevictim hadprinted andprinted
a larger color copy of the photograph. In addition, because Dixon had noticed that a comment, ‘‘Free my cousin Nate (#27),’’3 

### had been posted in the comment section ofthe My Space printout, he performed an ‘‘inhouse check’’ of all males with the name Nate and Nathan.4 

### He found a photograph of the defendant that resembled the person on the My Space printout.
Dixonthenpreparedaphotographic arraycontaining similarly sized and formatted photographs of eight young, African-American males wearing black shirts, including the defendant. On March 10, 2010, Dixon presented the photographic array to the victim, along with
an instruction form indicating that the suspect’s photograph might not be included, which Dixon read aloud to the victim and asked the victim to read to himself.5 

### Dixon did not suggest that the victim pick any person out of the array, did not show the victim a separate photograph of the defendant, and did not suggest that
a photograph of the victim’s assailant was included in the array. The victim, without hesitation, identified the defendant from the array as the person who had shot him andwithwhomhe hadplayed Pop Warnerfootball.
The defendantargued atthe suppressionhearingthat the identification procedure was unduly suggestive because the photograph of the defendant that Dixon included in the photographic array was, according to defense counsel, the only photograph that looked similar to the person that the victim had identified as his assailantinthephotographfromtheMySpaceprintout.6 

### In addition, defense counsel argued that the victim’s identification of the defendant was unreliable because the victim had been drinking prior to the time of the robbery, the lighting was ‘‘dim’’ at the time of the rob-

### bery, the victim had not identified the defendant as his assailant immediately after the shooting, and the victim’s descriptions ofthe shooterhadvaried. Thetrial court concluded that the police procedures had not been unduly suggestive and denied the defendant’s motionto suppress. Thereafter, the defendantwastried and convicted of the previously set forth crimes. This appeal followed.7


### On appeal, the defendant has effectively abandoned his claim that the photographic array was unduly suggestive. Instead, he claims for the first time that the victim’s identification of the defendant as the shooter shouldhave been suppressedbecause the victim’s conduct was unduly suggestive. Specifically, the defendant claims that the identification should have been suppressed because the victim sought out a photograph of the defendant, studied it and had an opportunity to discuss it with friends and family before he gave the photograph to Dixon, and this process was unduly suggestive in the same manner that showing multiple photographs of a suspect to an eyewitness is unduly suggestive. See State v. Randolph, 284 Conn. 328, 386, 933A.2d 1158 (2007) (identificationprocedureisunduly suggestive when ‘‘the eyewitness had been presented with multiple arrays in which the photograph of one suspect recurred repeatedly’’); State v. Holliman, 214 Conn. 38, 46, 570 A.2d 680 (1990) (when private actor has engaged in unduly suggestive identification conduct, identification may be suppressed if defendant establishes that identification was unreliable). The defendant further claims that, although this court held in Holliman that the due process provisions of the federal constitution are not implicated when a private actor has engaged in unduly suggestive conduct; State

v. Holliman, supra, 45; this court should hold that the due process clauses ofthe state constitution8 

### are implicatedwhenanidentificationistaintedbysuchconduct.9


### Becausethe defendant’s claimthatundulysuggestive conduct by a private actor implicates the due process provisions ofthe state constitutionispotentiallydispositive, we first review that claim.10 

### Although the claim
was not preserved, because the record is adequate for review and the claim is of constitutional magnitude, it is reviewable pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).11 

### The scope of the rights protected bythe due process clauses ofour state constitution is a question oflaw over which our review is plenary. See Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 398 n.11, 941 A.2d 868 (2008).
We begin our analysis with a review of the existing law governing unduly suggestive identification procedures. ‘‘Due process requires that [eyewitness] identifications [maybeadmittedattrial] onlyiftheyarereliable and are not the product of unnecessarily suggestive

### police procedures. State v. Kemp, [199 Conn. 473, 478, 507A.2d 1387 (1986), overruledinpartonothergrounds by State v. Guilbert, 306 Conn. 218, 253, 49 A. 3d 705 (2012)]. Because reliability is the linchpin in determining the admissibility of identification testimony; Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); a two part test has developed to make that determination. In

. . . State v. Marquez, 291 Conn. 122, 141–42, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009), we noted the consensus with regard to the [following] overall analytical framework to be used in considering a claim of this sort: 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 determinedwhetherthe identificationwasnevertheless reliable based on examination of the totality of the circumstances.

. . . State v. Theriault, [182 Conn. 366, 371–72, 438A.2d 432 (1980)]; see alsoMansonv. Brathwaite, supra, [107] ([T]he first inquiry [is] whether the police usedanimpermissiblysuggestive [identification] procedure

. . . . If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.); United States v. DeCologero, 530 F.3d 36, 62 (1st Cir.) (we first determine whetherthe identification procedure was impermissibly suggestive, and if itwas, we then lookto the totality ofthe circumstances to decide whether the identification was reliable), cert. denied, 555 U.S. 1005, 129 S. Ct. 513, 172 L. Ed. 2d 376, cert. denied, 555 U.S. 1039, 129 S. Ct. 615, 172 L. Ed. 2d 469 (2008).

. . . This court concluded that [w]e continue to endorse and adhere to this widely utilized analytical approach. State v. Marquez, supra, 142.’’ (Emphasis omitted; internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 47–48, 3 A.3d 1 (2010), cert. denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011).
In State v. Holliman, supra, 214 Conn. 45–46, this court held that, in the absence ofstate action, unnecessarily suggestive identification procedures conducted by private actors do not violate the defendant’s right to due process of law under the federal constitution. See also id., 43 (‘‘[t]he most outrageous behavior by
a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the [d]ue [p]rocess [c]lause’’ [internal quotation marks omitted]). In Perry v. New Hampshire, U. S.

, 132 S. Ct. 716, 730, 181 L. Ed. 2d 694 (2012), the United States Supreme Court reachedthe same conclusion.12 

### Id. (‘‘we hold that the [d]ue [p]rocess [c]lause does not require a preliminaryjudicial inquiry into the reliabilityofaneyewitnessidentificationwhentheidentificationwasnotprocuredunderunnecessarilysuggestive circumstances arranged by law enforcement’’

### [emphasis added]). The court in Perry reasoned that ‘‘[a] primary aim of excluding identification evidence obtainedunderunnecessarilysuggestive circumstances

. . . is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place’’; id., 726; and that this rationale ‘‘is inapposite in cases

. . . in which the police engaged in no improper conduct.’’ Id. Although the unduly suggestive conduct of private partiesmayaffectthereliabilityofan eyewitnessidentification, the court in Perry concluded that, ‘‘[w]here the crucial element of police overreaching is missing, the admissibility of an allegedly unreliable confession is a matter to be governed by the evidentiary laws of the forum

. . . and not by the [d]ue [p]rocess [c]lause.’’ (Internal quotation marks omitted.) Id.
In this state, the admissibility of such evidence is governed by State v. Holliman, supra, 214 Conn. 46. Although this court held in Holliman that due process principles under the federal constitution are not implicated by unduly suggestive private conduct; id., 45; it also held that, as a matter of evidentiary law, ‘‘the criteria established for determining the admissibility of identifications in the due process context are appropriate guidelines by which to determine the admissibility of identifications that result from procedures conducted by civilians.’’ Id., 46. Specifically, this court held that, as an evidentiary matter, when a defendant has claimed that an eyewitness identification was the productofundulysuggestive conductbyaprivateactor, the court must determine, first, whether that conduct ‘‘wasunnecessarilysuggestive, andsecond, ifitisfound to be so

. . . whether the identification was nevertheless reliable based on an examination ofthe totality of thecircumstances.’’ (Internalquotationmarksomitted.) Id. Thus, whilethereliabilityofaneyewitnessidentification, or the lack thereof, ordinarily goes to the weight of the evidence, and not its admissibility,13 

### unreliable identification evidence thatis taintedbyunduly suggestive private conduct, like such evidence that is tainted by improper state action, is inadmissible under Holliman

. The defendant in the present case urges this court to holdthat, notwithstandingthe decisions ofthis court inState v. Holliman, supra, 214 Conn. 45-46, and ofthe United States Supreme Court in Perry v. New Hampshire, supra, 132 S. Ct. 730, that unduly suggestive private conduct that taints an identification does not implicate the due process clauses ofthe federal constitution, such conduct does implicate the due process clauses of the state constitution because ‘‘eyewitness identification evidence is unique in its prevalence, persuasive value, and fragility.’’ Thus, the defendant effectively contends that the criteria for the admission of identification evidence thatis taintedbyunduly suggestiveprivate conductthatthis courtadoptedinHolliman
as amatterofevidentiarylaware constitutionallyman-

### dated under the state constitution.14


### ‘‘The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, [222 Conn. 672, 684–86, 610 A.2d 1225 (1992)],
we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents; (2) the text ofthe operative constitutionalprovisions; (3) historicalinsightsintothe intent ofour constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic andsociologicalnorms, oras otherwise described, relevantpublic policies.’’ (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 261, 3 A.3d 806 (2010).
In the present case, the defendant has not cited, and
our research has not revealed, a single case in which
a court has concluded that unduly suggestive conduct by a private actor automatically implicates constitutional due process principles. Indeed, every court that has considered this claim has rejected it.15 

### Like the United States Supreme Court in Perry, these courts have reasoned that, when an identification is rendered potentiallyunreliable byunduly suggestive private conduct, evidentiaryrules ordinarilyprovide sufficientprotection against the admission of unreliable evidence and an unfair trial.16 

### The defendant also has not identified anytextual differences between our state constitution’s due process clauses and the federal constitution, any historical insights into the intent of the framers or any contemporary economic or sociological understandings that support his claim that the due process provisions of the state constitution are implicated whenever an identification has been potentially tainted byundulysuggestive conductbyaprivate actor.17 

### Thus, all of the Geisler factors weigh against his claim.
We recognize that this court in Holliman did not explain why unduly suggestive private conduct should render an unreliable identification inadmissible, whereas otherfactors affectingthe reliability ofeyewitness identifications in the absence of improper state conduct go to the weight of the evidence. Nothing in Holliman suggests, however, that this court’s adoption ofthe federal dueprocess criteriato resolve the evidentiaryquestionwaspremised on anundisclosed determination that unduly suggestive private conduct implicates the due process provisions of our state constitution.18 

### Rather, it is clear to us that, by providing that unreliable identification evidence involving unduly suggestiveprivate conductmustbe excluded,Holliman goes above and beyond minimal constitutional requirements. Accordingly, we reject the defendant’s claim thatthe dueprocessprovisions ofthe state constitution

### are automatically implicated when identification evidence haspotentiallybeentaintedbyundulysuggestive private conduct.19 

### Rather, in the absence of improper state action, the admission of identification evidence implicates due process principles only when the evidence is so extremely unreliable that its admission would deprive the defendant ofhis right to a fair trial.20 

### See footnote 12 of this opinion. Because we have concludedthatthe defendant’s claim thatthe victim’s identification of him as the perpetrator should be suppressed on the groundthat it was unduly suggestive does not implicate the state constitution, but is purely evidentiary, and because the defendant did not raise the claim at trial, it is not reviewable. See, e.g., State

v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).
The judgment is affirmed.
Inthis opinion PALMER, ZARELLA, McDONALD and ESPINOSA, Js., concurred.

1 We note that § 53a-217 has been amended since the time of the defendant’s offenses. See Public Acts 2012, No. 12-133, §19. Those changes, however, arenotrelevanttothisappeal. Forpurposes ofconvenience, references herein to § 53a-217 are to the current revision of the statute.
2 The defendantappealedfromthejudgment ofconvictiontotheAppellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

3 In the photograph, the defendant is wearing a football jersey with the number twenty-seven printed on it.

4 Presumably, the ‘‘in-house check’’ that Dixon performed was a search of the police department’s records. The photograph of the defendant that Dixon found appears to be a mug shot.

5 The instruction form was titled ‘‘Witness Instructions for Photo Identification,’’ and provided the following instructions: ‘‘1. I will ask you to view

a set of photographs. ‘‘2. It is as important to clear innocent people as to identify the guilty. ‘‘3. 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. ‘‘4. The person you saw may or may not be in these photographs. ‘‘5. The police will continue to investigate this incident, whether you identify someone or not.’’ (Emphasis in original.)

6 It is not entirely clear what evidence the defendant sought to suppress. In his motion to suppress, the defendant asked the trial court to suppress ‘‘anyreferenceto thepretrial identification ofthe accusedbysuchwitnesses who were involved in the improper pretrial identification and the in-court identification of the accused by such witnesses who were involved in the improper pretrial identification

. . . .’’ The defendant’s reference to the ‘‘pretrial identification’’ was apparently to the victim’s identification of the defendant as the perpetratorwhenthe victim was presented withthe photographic array prepared by Dixon, and not to the victim’s identification of the person in the photograph from the My Space page as the person who shot him. The state contends that, to the extent that the defendant was seeking to suppress the victim’s identification of the person who shot him intheMySpacephotograph, suchconductsimplywasnotundulysuggestive. Because we rejectthe defendant’s claimthat aprivate actor’s undulysuggestive identification violates the state constitution, however, we need not address this issue.

7 After the defendant filed his appeal, we granted permission to the Innocence Project to file an amicus brief.

8 Article first, § 8, of the constitution of Connecticut provides in relevant part: ‘‘No person shall

. . . be deprived of life, liberty or property without due process of law

. . . .’’ Article first, § 10, ofthe constitution of Connecticut provides: ‘‘All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.’’9 The defendant contends that ‘‘[t]he trial court should have, at [a] minimum, reviewed [the victim’s] private [identification] to determine whether it was unnecessarily suggestive under Holliman.’’ It is not entirely clear to us, however, whetherhe is attemptingto raise an evidentiary claimpursuant to Holliman independently from his constitutional claim. To the extent that he is, we decline to review the claim because it is not of constitutional magnitude and was not raised in the trial court. See State v. Bowman, 289 Conn. 809, 821, 960 A.2d 1027 (2008) (unpreserved evidentiary claim is not reviewable). Moreover, because the defendant did not rely on Holliman in the trial court, and presented little evidence at the suppression hearing regarding the suggestiveness of the victim’s conduct, but focused instead

on the unduly suggestive conduct ofthe police, the record would be inadequate for review even if the claim were preserved.

10 This claim is potentially dispositive because, ifthis court concludes that unduly suggestive conduct by a private actor does not implicate the state constitution, thenthe defendant’s unpreserved claimthatthevictim’s identification of him as the perpetrator should be suppressed on the ground it

was unduly suggestive would be a purely evidentiary claim and, therefore, unreviewable. See, e.g., State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).

11 In State v. Golding, supra, 213 Conn. 239–40, this court held that ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial onlyifall ofthe following conditions are met: (1) the record is adequate to review the alleged claim oferror; (2) the claim is ofconstitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’’ (Emphasis omitted; footnote omitted.) The state contends thatthe defendant’s claimthatthe due process clauses of the state constitution are implicated when an identification has been tainted by the conduct of private actors is not reviewable because the defendant has not provided an analysis pursuant to State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992). Although the defendant has not expressly discussed the Geisler factors with respect to his claim that the state constitution applies to private conduct, we conclude that his briefing is adequate for this court to review the claim. As we discuss more fully in the body ofthis opinion, however, we conclude that the defendant’s failure to provide any support forthis state constitutional claimpursuantto Geisler is fatal to his claim. (As we also discuss more fully in footnote 17 of this opinion, the defendant has discussed Geisler with respect to his claim that,

even if unduly suggestive private conduct does not automatically implicate the state constitution, the Holliman framework is constitutionally flawed because it allows the admission of unreliable identification evidence. We also reject that claim.)

12 In Perry v. New Hampshire, supra, 132 S. Ct. 723, the United States Supreme Court stated that, in the absence ofunduly suggestive procedures by state actors, ‘‘[o]nly when evidence is so extremely unfair that its admission violates fundamental conceptions ofjustice

. . . have we imposed a constraint tied to the [d]ue [p]rocess [c]lause. See, e.g., Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959) (Due process prohibits the [s]tate’s know[ing] use [of] false evidence, because such use violates any concept of ordered liberty.).’’ (Citation omitted; internal quotation marks omitted.) See also State v. Nordstrom, 200 Ariz. 229, 241, 25 P.3d 717 (2001) (‘‘[I]t is conceivable that the due process clause prohibits identificationtestimonythatfallsbelowsomeminimalthresholdofreliability when the defendant’s right or ability to bring the testimony’s weaknesses to the jury’s attention is somehow restricted, even though state action is not present.

. . . That concern arises when evidence lacking in foundation reaches the jury under circumstances that do not afford a defendant an opportunity to point out its weaknesses.’’ [Citation omitted; internal quotationmarks omitted.]), overruledinpart on othergrounds byStatev. Ferrero, 229 Ariz. 239, 243, 274 P.3d 509 (2012); People v. Blackman, 110 App. Div. 2d 596, 598, 488 N.Y.S.2d 395 (noting difference between identifications involvingpolice misconduct, which always implicate constitutional due process principles because they involve state action, and identifications involving unduly suggestive private conduct, which implicate due process principles only when identification does not meet ‘‘threshold of at least minimal reliability’’), appeal denied, 65 N.Y.2d 813, 482 N.E.2d 929 (1985); State v. Hibl, 290 Wis. 2d 595, 615, 714 N.W.2d 194 (2006) (‘‘[t]here may besome conceivable set ofcircumstances underwhichthe admission ofhighly unreliable identification evidence could violate a defendant’s right to due process, even though a state-constructed identification procedure is absent’’). To the extent that the defendant in the present case contends that an unreliable identificationthat is taintedbyunduly suggestive private conduct may be excluded even ifthe evidence was not so extremely unreliable that its admission would deprive him of his right to a fair trial, any such claim is unreviewable because it is not of constitutional magnitude and it was not raised at the suppression hearing or at trial. See, e.g., Commonwealth v. Jones, 423 Mass. 99, 109, 666 N.E.2d 994 (1996) (‘‘[c]ommon law principles offairness dictatethatanunreliableidentificationarisingfromthe especially suggestive circumstances of this case should not be admitted’’); People v. Marte, 12 N.Y.3d 583, 590, 912 N.E.2d 37, 884 N.Y.S.2d 205 (2009) (‘‘we do not rule on the possibility that a court, in balancing probative value against prejudicial effect, mayfind some [identification testimonytainted byunduly suggestive private conduct] so unreliable that it is inadmissible’’), cert. denied, 559 U.S. 941, 130 S. Ct. 1501, 176 L. Ed. 2d 117 (2010); State v. Pailon, 590 A.2d 858, 863 (R.I. 1991) (‘‘It is conceivable that identification evidence might become so unreliable as to fall below the threshold of competence [under ordinary rules of evidence].

. . . This indeed would be a rare occurrence and would involve the question of lack of personal knowledge

. . . .’’ [Citation omitted.]); State v. Hibl, supra, 290 Wis. 2d 617 (‘‘courts serve a limited gate-keeping function, even for constitutionally admissible eyewitness identification evidence’’). Accordingly, the amicus’ contention that, as a general evidentiary matter, our courts should evaluate identificationevidenceforadmissibility, andnotjustweight, isnotbeforeus.
13 SeePerryv. NewHampshire, supra, 132 S. Ct. 723 (‘‘it is the province of thejuryto weigh the credibility ofcompeting witnesses’’ [internal quotation marks omitted]); id., 728 (ordinarily, ‘‘the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair’’); State v. Guilbert, supra, 306 Conn. 243–45 (ordinarily, reliability of eyewitness identification is question forjury, subject to testing by cross-examination, closing argument,juryinstructions and expert testimony on fallibility of such testimony); State v. Hibl, 290 Wis. 2d 595, 616, 714 N.W.2d 194 (2006) (‘‘[t]he overwhelming majority of American courts have always treated the evidence question [relating to eyewitness identifications] not as one of admissibility but as one of credibility for the jury’’ [internal quotation marks omitted]).

14 The defendant also contends that the evidentiary rule of Holliman must be treated as a constitutionally mandated rule because: (1) unlike constitutionalclaims, evidentiaryclaimscannotberaisedonappealpursuant to Golding if they were not preserved in the trial court; and (2) the burden isonthedefendanttoprove onappealthatanevidentiaryerrorwasharmless, while the burden is on the state to prove that a constitutional violation was harmless. If there is no reason to treat a claim involving identification evidence that was potentially tainted by unduly suggestive private conduct

as a constitutional claim at trial, however, there is no reason to treat it as
a constitutional claim on appeal.

15 See People v. Marte, 12 N.Y.3d 583, 588–89, 912 N.E.2d 37, 884 N.Y.S.2d 205 (2009) (citing cases), cert. denied, 559 U.S. 941, 130 S. Ct. 1501, 176 L. Ed. 2d 117 (2010).

16 See Commonwealth v. Jones, 423 Mass. 99, 109–110, 666 N.E.2d 994 (1996); State v. Chen, 208 N.J. 307, 326, 27 A.3d 930 (2011); People v. Marte, 12 N.Y.3d 583, 589, 912 N.Y.2d 37, 884 N.Y.S.2d 205 (2009), cert. denied, 559 U.S. 941, 130 S. Ct. 1501, 176 L. Ed. 2d 117 (2010); State v. Pailon, 590 A.2d 858, 863 (R.I. 1991); Statev.Hibl, 290Wis. 2d 595, 615, 714 N.W.2d 194 (2006).

17 The defendant has briefed Geisler with respect to his claim that the Holliman criteria are constitutionally deficient because the factors for determining reliability of an identification that has been tainted by unduly suggestive police procedures set forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and Manson v. Brathwaite, supra, 432 U.S. 113–14—on whichHolliman relied—have been undermined by recent scientific research. See State v. Holliman, supra, 214 Conn. 46 (citing Manson). He concedes that the only factor that favors his position is the sixth factor, contemporary economical and sociological considerations. See State v. Ledbetter, 275 Conn. 534, 566, 881 A.2d 290 (2005) (sixth Geislerfactorfavoreddefendantbecauseuncontradictedscientificliterature citedby defendantsuggeststhatBiggers frameworkfor determiningreliability of identification evidence was flawed), cert. denied, 547 U.S. 1082, 126S. Ct. 1798, 164 L. Ed. 2d 537 (2006); see also State v. Guilbert, supra, 306 Conn. 252–53 n.33 (acknowledging thatBiggers framework has been called into question, but declining to resolve question of whether framework violates state constitution because case did not involve unduly suggestive identification procedures); State v. Outing, supra, 298 Conn. 61–62 (noting that Biggers framework has been called into question by recent scientific studies, but declining to address issue because defendant had not proved unduly suggestive conduct); State v. Henderson, 208 N.J. 208, 288–92, 299, 27 A.3d 872 (2011) (rejecting Biggers framework when identification had been tainted by unduly suggestive police conduct and adopting new evidentiary framework for determining overall reliability of identification evidence). As we have indicated, however, unlike Ledbetter and Outing, in which due process principles were implicated because the cases involved state action, Holliman created an evidentiary rule. Even if we were to

assume that the application of the Manson / Biggers framework would not meet state constitutional requirements for reliability in a case involving unduly suggestive police procedures, a question that this court has not yet decided; see State v. Guilbert, supra, 252–53 n.33; it would not follow that that framework is so likely to allow the admission of extremely unreliable identification evidence that its application would be unconstitutional even in the absence of improper state action. See footnote 12 of this opinion (citing cases holding that, in absence of improper state action, admission of identification evidence implicates due process principles only when evidence is extremelyunreliable). Moreover, the defendanthas citedno authority for the proposition that the due process clauses ofthe state constitution mandate a higher standard of reliability for the admission of identification evidence that has not been tainted by improper state action than the federal constitution. Accordingly, we reject this claim. We emphasize that, as amatter ofevidentiarylaw, nothing wouldprevent this court from revising the Holliman criteria by rejecting the Manson/ Biggers framework in favor of a framework that would require a more searching inquiry into the reliability of identification evidence that was potentially tainted by unduly suggestive private conduct. The defendant in the present case, however, did not raise such an evidentiary claim either in this court or in the trial court, but claims only that this more searching inquiry is constitutionally required.

18 By adopting a stricter rule for unduly suggestive private conduct, this court implicitly rejected the reasoning of the United States Supreme Court inPerry v. New Hampshire, supra, 132 S. Ct. 727, that ‘‘[t]here is no reason why an identification made by an eyewitness with poor vision, for example,

or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less of a ‘threat to the fairness of trial,’ ’’ than an identification that was tainted by unduly suggestive private conduct. See also People v. Marte, 12 N.Y.3d 583, 589, 912 N.E.2d 37, 884 N.Y.S.2d 205 (2009) (‘‘We acknowledge, as many courts have, the real possibility that suggestiveness that is not of police origin can contribute to misidentifications. But suggestiveness is only one of the possible sources of such mistakes. A witness to whom no one has made any suggestion can be mistaken foranyone ormore ofmanyreasons—aninadequate opportunityto observe, bias, panic, racial stereotyping, difficulty in focusing on an attacker’s features, or simple bad memory, among others. Where no one in law enforcement is the source of the problem, nothing justifies the per se rule [the] defendantseeks.’’), cert. denied, 559U.S. 941, 130S. Ct. 1501, 176L. Ed. 2d 117 (2010). In otherwords, ifthis courtinHollimanhad appliedthe reasoning of Perry, instead of applying the same criteria for admissibility that it applies in cases involving unduly suggestive procedures by state actors, it would have subjectedthe identificationto the same evidentiaryrules that generally apply to eyewitness identifications, which are designed primarily to test reliability. As we have explained, the rationale for excluding unreliable identifications involving unduly suggestive conduct by state actors is to punish and to deter improper governmental conduct, not to prevent thejury from considering unreliable evidence. See Perry v. New Hampshire, supra, 726. Because such deterrence is not an issue in cases involving private conduct,thereasonsforthiscourt’sholdinginHollimanareunclear.Accordingly, we do not necessarily disagree with ChiefJustice Rogers’ concurring opinion in which she argues that this court should abandon the Holliman rule and, instead, hold that potentially unreliable eyewitness identifications resulting from suggestive procedures undertaken by private actors should beevaluatedinthesamemannerasanyotherpotentiallyunreliable evidence. As Chief Justice Rogers recognizes, however, the issue of the appropriate-ness of the rule in Holliman is not directly presented in the present case and, therefore, the issue is not before us.
19 It is clear, therefore, that the defendant’s claim that the victim’s identification ofthe defendantwas inadmissible because it involved unduly suggestive private conduct and the state did not show an independent basis for it; see State v. Gold, 180 Conn. 619, 656, 431 A.2d 501 (when identification

was affectedbyundulysuggestive police procedures, identification is nevertheless admissible when it has independent basis), cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); is unreviewable because, in the absence of improper state action, any such claim is evidentiary and was not preserved. It is also clear that, contrary to the defendant’s claim, the admission of the victim’s identification of the defendant did not constitute plain error. See State v. Myers, 290 Conn. 278, 287, 963 A.2d 11 (2009) (reviewing court ‘‘may in the interests of justice notice plain error not brought to the attention of the trial court’’ [internal quotation marks omitted]); id. (plain error is ‘‘patent [or] readily discernable on the face of a factually adequate record, [and] also

. . . obvious in the sense ofnot debatable’’ [internal quotation marks omitted]).

20 In the present case, the defendant does not claim that, even if we disagree with his claim that all unduly suggestive conduct by private actors implicates the due process clauses of the state constitution, the victim’s eyewitness identification was so unreliable that it deprived him of his due process right to a fair trial. In any event, because the evidence presented at the suppression hearing focused primarily on the alleged unduly suggestive police procedures and not on the factors affecting the reliability of the victim’sidentification, anysuchconstitutionalclaimwouldnotbereviewable pursuant to Golding due to the lack of an adequate record. TheamicuscontendsthattheHollimanevidentiarycriteriaareinadequate to protect against unreliable identification evidence because ‘‘courts frequently ‘end the inquiry’ after determining that federal due process [principlesdo] notapply, and, asaresult, neverexaminethereliabilityofeyewitness identifications that are not unnecessarily suggestive’’ as an evidentiary matter. Nothing prevents a defendant, however, from raising both a due process claimbased onundulysuggestivepoliceprocedures (oraHolliman claim, in the case ofunduly suggestive private conduct) and a traditional evidentiary claim, inwhich casethetrial courtmustapplytraditional evidentiarycriteria to the evidence even if it finds no unduly suggestive conduct. See footnote 12 of this opinion. In addition, as we have indicated, even in the absence of unduly suggestive conduct by a state or private actor, a defendant may raise a claim that the identification evidence was so unreliable that its admission would violate his due process right to a fair trial.