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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).

Charles D. Ray filed a brief for the Innocence Project

as amicus curiae.
Opinion

VERTEFEUILLE, J. The primary issue that we must

resolve in this appeal is whetherthe due process clauses

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

of the 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 of guilty on charges of assault in the

first degree in violation of General Statutes § 53a-59 (a)

(1), robbery in the first degree in violation of General

Statutes § 53a-134 (a)(1), conspiracy to 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). The defendant also was found guilty

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

of guilty 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 of the state constitution even in the absence of any

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 of the 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.

On December 30, 2009, the victim, who was then twentyseven years old, left his job at the Clarion Hotel on

Whitney Avenue in New Haven at approximately 3:30

p.m., and took a bus to his residence at 50 Gilbert Street.

After taking a nap, he left his residence and walked to

a friend’s house on Albert Street, a thirty to forty minute

walk. Upon discovering that his friend was not at home,

the victim walked to his father’s house at 15 Adam

Clayton Powell Place, a five to seven minute walk. He

stayed there for approximately three to four hours, 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

leaving the restaurant, he saw a group of men, including

the defendant. The victim had seen the defendant before
when they had played ‘‘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, they just 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

a light for his cigarettes and to purchase lottery tickets.

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 men jumped 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 of the 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 recognized the defendant. Dixon interviewed the victim again

on January 6, 2010, at which point the victim told Dixon

that he had recognized one of the attackers as someone
with whom he had played Pop Warner football. The

victim testified that he was willing to identify his 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 if he 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

person who he believed had shot him. He found a photograph 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 of the person he believed to be

his assailant. Thereafter, Dixon logged into the My

Space site with the police department’s computer,

located the page that the victim had printed and printed

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 of the 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.

Dixon then prepared a photographic array containing

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 and with whom he had played Pop Warner football.

The defendant argued at the suppression hearing that

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

assailant in the photograph from the My Space printout.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 of the shooter had varied. The trial

court concluded that the police procedures had not

been unduly suggestive and denied the defendant’s

motion to suppress. Thereafter, the defendant was tried

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

should have been suppressed because 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,

933 A.2d 1158 (2007)(identification procedure is unduly

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 of the state constitution8 are implicated when an identification is tainted by such conduct.9

Because the defendant’s claim that unduly suggestive

conduct by a private actor implicates the due process

provisions of the state constitution is potentially dispositive, 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 by the due process clauses of our state

constitution is a question of law 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 [may be admitted attrial] only if they are reliable

and are not the product of unnecessarily suggestive
police procedures. State v. Kemp, [199 Conn. 473, 478,

507 A.2d 1387 (1986), overruled in part on other grounds

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

determined whetherthe identification was nevertheless

reliable based on examination of the totality of the

circumstances. . . . State v. Theriault, [182 Conn. 366,

371–72, 438 A.2d 432 (1980)]; see also Manson v. Brathwaite, supra, [107] ([T]he first inquiry [is] whether the

police used an impermissibly suggestive [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 whether the identification procedure was impermissibly suggestive, and if

it was, we then look to the totality of the 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 of state 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 reached the same conclusion.12 Id. (‘‘we hold that the [d]ue [p]rocess [c]lause

does not require a preliminary judicial inquiry into the

reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement’’
[emphasis added]). The court in Perry reasoned that

‘‘[a] primary aim of excluding identification evidence

obtained under unnecessarily suggestive 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

parties may affect the reliability of an eyewitness identification, 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

product of unduly suggestive conduct by a private actor,

the court must determine, first, whether that conduct

‘‘was unnecessarily suggestive, and second, if it is found

to be so . . . whether the identification was nevertheless reliable based on an examination of the totality of

the circumstances.’’(Internal quotation marks omitted.)

Id. Thus, while the reliability of an eyewitness identification, or the lack thereof, ordinarily goes to the weight

of the evidence, and not its admissibility,13 unreliable

identification evidence that is tainted by unduly 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 hold that, notwithstanding the decisions of this court

in State v. Holliman, supra, 214 Conn. 45-46, and of the

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 of the 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 that is tainted by unduly suggestive private conduct that this court adopted in Holliman

as a matter of evidentiary law are constitutionally man-
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 of the operative constitutional provisions; (3) historical insights into the intent

of our constitutional forebears; (4) related Connecticut

precedents; (5) persuasive precedents of other state

courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise

described, relevant public 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

potentially unreliable by unduly suggestive private conduct, evidentiary rules ordinarily provide sufficient protection against the admission of unreliable evidence

and an unfair trial.16 The defendant also has not identified any textual 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

by unduly suggestive conduct by a private 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 other factors affecting the reliability of eyewitness 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

of the federal due process criteria to resolve the evidentiary question was premised on an undisclosed 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

suggestive private conduct must be excluded, Holliman

goes above and beyond minimal constitutional requirements. Accordingly, we reject the defendant’s claim

that the due process provisions of the state constitution
are automatically implicated when identification evidence has potentially been tainted by unduly suggestive

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 of his right to a fair trial.20

See footnote 12 of this opinion. Because we have concluded that the defendant’s claim that the victim’s identification of him as the perpetrator should be

suppressed on the ground that 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.

In this 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, are notrelevant to this appeal. For purposes of convenience,references

herein to § 53a-217 are to the current revision of the statute.

2 The defendant appealed from the judgment of conviction to the Appellate

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

‘‘any reference to the pretrial identification of the accused by such witnesses

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 perpetrator when the victim was presented with the 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

in the My Space photograph, such conduct simply was not unduly suggestive.

Because we reject the defendant’s claim that a private actor’s unduly suggestive 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, of the 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, whether he is attempting to raise an evidentiary claim pursuant

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 of the police, the record would be inadequate for review even if the claim were preserved.

10 This claim is potentially dispositive because, if this court concludes that

unduly suggestive conduct by a private actor does not implicate the state

constitution, then the defendant’s unpreserved claim that the victim’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 only if all of the following conditions are met: (1) the record is adequate

to review the alleged claim of error; (2) the claim is of constitutional 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 that the defendant’s claim that the 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 of this opinion, however, we conclude that the defendant’s failure

to provide any support for this state constitutional claim pursuant to 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 of unduly suggestive procedures

by state actors, ‘‘[o]nly when evidence is so extremely unfair that its admission violates fundamental conceptions of justice . . . 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

identification testimony that falls below some minimalthreshold ofreliability

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 quotation marks omitted.]), overruled in part on other grounds by State v. 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

involving police 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 be
some conceivable set of circumstances under which the admission of highly

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 identification that is tainted by unduly suggestive private conduct

may be excluded even if the 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

of fairness dictate that an unreliable identification arising from the 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, may find some [identification testimony tainted by unduly

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

identification evidence for admissibility, and not just weight, is not before us.

13 See Perry v. New Hampshire, supra, 132 S. Ct. 723 (‘‘it is the province of

the jury to weigh the credibility of competing 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 for jury, subject to

testing by cross-examination, closing argument, jury instructions 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

constitutional claims, evidentiary claims cannot be raised on appeal pursuant

to Golding if they were not preserved in the trial court; and (2) the burden

is on the defendant to prove on appeal that an evidentiary error was harmless,

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); State v. Hibl, 290 Wis. 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 which Holliman 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

Geisler factorfavored defendant because uncontradicted scientific literature

cited by defendant suggests that Biggers framework for determining reliability of identification evidence was flawed), cert. denied, 547 U.S. 1082, 126
S. Ct. 1798, 164 L. Ed. 2d 537 (2006); see also State v. Guilbert, supra, 306

Conn. 252–53 n.33 (acknowledging that Biggers 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 extremely unreliable). Moreover, the defendant has cited no authority for the proposition that the due process clauses of the 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 a matter of evidentiary law, nothing would prevent

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

in Perry 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

for any one or more of many reasons—an inadequate opportunity to 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]

defendant seeks.’’), cert. denied, 559 U.S. 941, 130 S.Ct. 1501, 176 L.Ed. 2d 117

(2010). In other words, if this court in Holliman had applied the 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 subjected the identification to the same evidentiary rules 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 the jury

from considering unreliable evidence. See Perry v. New Hampshire, supra,

726. Because such deterrence is not an issue in cases involving private

conduct,the reasons forthis court’s holding in Holliman are unclear.Accordingly, we do not necessarily disagree with Chief Justice 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

be evaluated in the same manner as any other potentially unreliable 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 of the defendant was 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 affected by unduly suggestive 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 of not 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’s identification, any such constitutional claim would not be reviewable

pursuant to Golding due to the lack of an adequate record.

The amicus contends that the Holliman evidentiary criteria are inadequate

to protect against unreliable identification evidence because ‘‘courts frequently ‘end the inquiry’ after determining that federal due process [principles do] not apply, and, as a result, never examine the reliability of eyewitness

identifications that are not unnecessarily suggestive’’ as an evidentiary matter. Nothing prevents a defendant, however, from raising both a due process

claim based on unduly suggestive police procedures (or a Holliman claim, in

the case of unduly suggestive private conduct) and a traditional evidentiary

claim, in which case the trial court must apply traditional evidentiary criteria

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.