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STATE OF CONNECTICUT v. TROY ARTIS

(SC 19035)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Vertefeuille, Js.

Argued December 11, 2013—officially released October 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 filed a brief for the Connecticut Criminal

Defense Lawyers Association as amicus curiae.

Charles D. Ray filed a brief for the Innocence Project

as amicus curiae.
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., 608. 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.,

420; the Appellate Court reversed the trial court’s judgment. See State v. Artis, supra, 608–609, 613, 617. 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., 617. 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 fistfight 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 twentyeight years old. The stockier ofthe 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 first degree in violation of §§ 53a-8 and

53a-59 (a) (1), and conspiracy to commit assault in the

first degree with a dangerous instrument in violation

of §§ 53a-48 and 53a-59 (a) (1).’’ (Footnotes altered.)

State v. Artis, supra, 136 Conn. App. 570–74.

During trial, the defendant filed a motion to suppress

Otero’s out-of-court identification and to preclude any

in-court identification, claiming that the out-of-court

identification was the product of an unnecessarily suggestive procedure and that any subsequent in-court

identification would be tainted by the improper out-ofcourt identification. At the hearing on the defendant’s

motion, Otero testified ‘‘that in the weeks following the

incident he received secondhand and thirdhand reports

. . . [with the] names of people who might have been

involved [in the assault], including the name ‘Hershey,’

which he was told was the defendant’s street name.4

Otero stated that in May, 2008, while at the Hartford

police station, he was shown a photographic array of

eight individuals from which he was not able to make

a positive identification. The defendant’s photograph

was not part of this array. Otero testified that after he

had been told by others, secondhand and thirdhand,

that the defendant had been involved in the attack . . .

he looked the defendant up on the [D]epartment of

[C]orrection website and discovered that the defendant

was incarcerated. He stated that on the day he gave

Hartford Detective [Jerry] Bilbo the defendant’s name,

Bilbo then brought up the defendant’s photograph on

his computer. Otero testified that while he expected to

see several photographs on the computer screen, there

was only one photograph, that of the defendant, and

that upon seeing the defendant’s photograph, he immediately identified him as the initial assailant.

‘‘[Bilbo also testified at the suppression hearing. He

explained] that in May, 2008, he showed Otero a photographic array with eight photographs that did not

include the defendant. From this array, Otero was not

able to make any positive identifications, although he

did indicate that two of the photographs were similar

to the person who attacked him. One of the photographs

[that Otero] tentatively selected . . . was that of

Robert Acevedo. Bilbo indicated, as well, that in June,

2008, he prepared a photographic array for Otero and

that this array included the defendant’s photograph.

However, he did not show this array to Otero because
he did not believe that Otero could identify any of his

attackers. Nevertheless, Bilbo testified that six or seven

months later he did show Otero a booking photograph

of the defendant, with the name ‘Artis’ printed across

the front of the shirt of the person depicted, while telling

Otero that it was a photograph of the defendant, that

the defendant was a suspect in the case, and that he

was seeking an arrest warrant for him. Contrary to

Otero’s testimony, Bilbo claimed that Otero was not

able to identify the defendant from this one photograph

even though he told Otero that it was a photograph of

the defendant. Bilbo stated, as well, that when shown

the photograph of the defendant, Otero responded that

he did not know who his attackers were and acknowledged that he could not identify them. Bilbo did not,

at any time before or after he showed Otero the single

booking photograph, display the photographic array to

him that included the defendant’s photograph.

‘‘Confronted with the inconsistency between Otero’s

testimony that he positively identified the defendant

from the one photograph shown to him and Bilbo’s

testimony that Otero did not make an identification,

the court [found] . . . that Otero’s testimony was more

credible in this regard than Bilbo’s. The court, therefore,

concluded that Otero had made an out-of-court pretrial

identification of the defendant as the initial assailant.’’

(Footnotes altered.) Id., 590–92. Following the suppression hearing testimony, the trial court denied the defendant’s motion to suppress Otero’s out-of-court identification and to preclude any subsequent in-court identification of the defendant. Although the trial court found

that Otero’s initial identification of the defendant was

unnecessarily suggestive, the court further determined

that his identification was reliable and, therefore,

admissible, and that any subsequent in-court identification of the defendant by Otero also would be admissible.5 Following the trial court’s ruling, Otero, while

testifying before the jury, identified the defendant as

the man with whom he had engaged in a fistfight before

being repeatedly stabbed. Otero further described his

initial, out-of-court identification of the defendant.

Miano, who testified after Otero, also identified the

defendant, who was well-known to her, as the man who

initially had confronted Otero. In addition, she testified

that, after observing that Otero was on the ground, she

saw Robert Acevedo, Anna Acevedo, and the defendant

fighting with him. Neither Robert Acevedo nor Anna

Acevedo testified at the defendant’s trial. At the conclusion of the trial, the court granted the defendant’s

motion for a judgment of acquittal with respect to the

charge of assault in the first degree while aided by two

or more persons. The jury found the defendant guilty

of accessory to assault in the first degree by means

of a dangerous instrument and not guilty of the two

remaining conspiracy charges.

On appeal to the Appellate Court, the defendant chal-
lenged the trial court’s denial of his motion to suppress.6

In a divided opinion, the Appellate Court majority

agreed with the defendant, concluding that the unnecessarily suggestive identification procedure used by Bilbo

had created a substantial likelihood of misidentification. See id., 593, 595–617. In reaching its determination,

the Appellate Court majority stated that ‘‘[i]t would be

difficult to conceive of a less neutral or more preemptive identification process than . . . that [employed by

Bilbo]’’; id., 593; and reasoned that the trial court had

‘‘failed to give proper weight to the corrupting effect

of this most inappropriate identification confirmation

procedure.’’ Id., 607–608. ‘‘[A]pplication of the factors

[enumerated] in Manson v. Brathwaite, supra, 432 U.S.

114–16,7 considered against the backdrop ofthe extraordinarily overbearing manner of the identification procedure, leads [the court] to the conclusion that the pretrial

identification of the defendant by Otero was notreliable

and that Otero’s subsequent in-court identification was

not sufficiently removed from the taint of the earlier

out-of-court identification to be independently reliable.’’(Footnote added.) State v. Artis, supra, 136 Conn.

App. 608.

Adhering to this court’s holding in State v. Gordon,

supra, 185 Conn. 419–20, the Appellate Court majority

also concluded that the defendant was entitled to a new

trial regardless of whether the improper admission of

Otero’s identification testimony was harmless. See

State v. Artis, supra, 136 Conn. App. 608–609, 613. The

court further explained that, even if harmless error

review were applicable to the admission of unnecessarily suggestive and unreliable eyewitness identification

testimony, the state could not meetits burden of demonstrating that the admission of Otero’s identification testimony was harmless beyond a reasonable doubt. See

id., 617. Specifically, the Appellate Court concluded that

the following factors demonstrated that the improper

admission of Otero’s identification testimony influenced the result of the trial: (1) Otero’s ‘‘identifications

of the defendant were key elements, if not the centerpiece, of the state’s case’’; id.; (2) eyewitness identification evidence generally has a powerful influence on a

jury’s deliberations; id., 616; (3) Miano did not provide

strong independent evidence of the defendant’s guilt

because ‘‘her testimony regarding the circumstances of

the altercation was confused and imprecise, her ability

to observe the events accurately was unclear, and her

familiarity with Otero together with her relationship

with Robert Acevedo reasonably could have put her

objectivity in doubt for the fact finders’’; id., 614; and

(4) the state had relied on Otero’s testimony in closing

argument to the jury. Id., 616–17.

Judge Lavine dissented in part from the majority opinion of the Appellate Court. He concluded that the trial

court properly had denied the defendant’s motion to

suppress because Otero’s out-of-court identification of
the defendant, although the product of a suggestive

police procedure, was admissible because it bore sufficient indicia of reliability. See id., 618, 629 (Lavine, J.,

concurring in part and dissenting in part). Judge Lavine

further concluded that, even if Otero’s identification

testimony had been improperly admitted, harmless

error review of the state’s use of that testimony was

not barred under Gordon because, inter alia, this court

had overruled Gordon’s rule of automatic reversal sub

silentio in State v. Milner, 206 Conn. 512, 536 n.11, 539

A.2d 80 (1988). See State v. Artis, supra, 136 Conn. App.

632–33 (Lavine, J., concurring in part and dissenting

in part). Judge Lavine finally concluded that the admission of Otero’s testimony was harmless, stating that,

‘‘[b]ecause the defendant was convicted for his participation in the three-on-one altercation, and [Otero] could

not identify any of the individuals involved in that altercation, the jury must have believed Miano’s testimony.

Simply put, in light of the other evidence, [Otero’s]

identification of the defendant as the assailant in the

one-on-one altercation provided only incidental support

for the defendant’s conviction.’’ (Emphasis in original.)

Id., 642 (Lavine, J., concurring in part and dissenting

in part).

On appeal to this court following our grant of certification, the state first challenges the Appellate Court’s

determination that the trial court improperly had denied

the defendant’s motion to suppress Otero’s identification testimony. The state further contends that, even if

that identification testimony was improperly admitted

into evidence, we should expressly overrule Gordon

and reverse the judgment of the Appellate Court

because the admission of Otero’s testimony was harmless error. Although it is a close question as to whether

Otero’s out-of-court identification of the defendant was

reliable and, therefore, admissible, despite the procedure by which the police obtained it—a procedure that

the state concedes was unnecessarily suggestive—we

need not decide that issue because, even if we assume

that Otero’s identification testimony should have been

suppressed, the state’s use of that testimony is subject

to harmless error review, and the state has proven

beyond a reasonable doubt that the admission of the

testimony was harmless.8

I

We first address the state’s claim that we should

overrule State v. Gordon, supra, 185 Conn. 419–20, insofar as it rejected harmless error analysis in favor of a

rule of per se reversibility in cases involving the state’s

use of unreliable eyewitness identification evidence

that is the product of an unnecessarily suggestive police

procedure. According to the state, ‘‘[r]eversing convictions based on harmless evidence creates, rather than

corrects, erroneous outcomes. . . . The harmless

error doctrine avoids wrongful convictions without giv-
ing guilty perpetrators the windfall of appellate reversal.’’ (Citations omitted; emphasis in original.) The

defendant urges us to decline the state’s request to

reconsider and reject our holding in Gordon because

unreliable eyewitness identification testimony is

‘‘extremely powerful evidence’’ that invariably compromises the jury’s fact-finding function. We agree with

the state that the introduction of such testimony in

violation of a defendant’s right to due process is not

one of the rare instances of structural error in which

the automatic reversal of a conviction is warranted.

Revisiting prior precedent implicates the doctrine of

stare decisis, which ‘‘counsels that a court should not

overrule its earlier decisions unless the most cogent

reasons and inescapable logic require it. . . . Stare

decisis is justified because it allows for predictability

in the ordering of conduct, it promotes the necessary

perception that the law is relatively unchanging, it saves

resources and it promotes judicial efficiency. . . . It is

the most important application of a theory of decisionmaking consistency in our legal culture and . . .

is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.’’

(Internal quotation marks omitted.) State v. Salamon,

287 Conn. 509, 519, 949 A.2d 1092 (2008).

Nevertheless, ‘‘[w]hen a previous decision clearly creates injustice, the court should seriously consider

whether the goals of stare decisis are outweighed,

rather than dictated, by the prudential and pragmatic

considerations that inform the doctrine to enforce a

clearly erroneous decision. . . . The court must weigh

[the] benefits of [stare decisis] against its burdens in

deciding whether to overturn a precedent it thinks is

unjust. . . . It is more important that the court should

be right upon later and more elaborate consideration

of the cases than consistent with previous declarations.

. . . Moreover, [e]xperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. . . . Indeed, [i]f law is to

have current relevance, courts must have and exert the

capacity to change a rule of law when reason so

requires. . . . In accordance with these principles, we

have not hesitated to revisit and overrule our prior

holdings, including prior holdings applicable to criminal

matters . . . once we are convinced that they were

incorrect and unjust.’’ (Citations omitted; internal quotation marks omitted.) Id., 520–21; see also Jaiguay v.

Vasquez, 287 Conn. 323, 351 n.22, 948 A.2d 955 (2008)

(‘‘[s]tare decisis . . . is neither an end in itself nor an

inexorable command’’). In the present case, we must

decide whether these principles dictate either that we

reaffirm our holding in Gordon or that we overrule it.

In Gordon, a jury found the defendant, Mitchell Gordon, guilty of sexual assault in the first degree and

robbery in the third degree predicated on, inter alia,
the victim’s out-of-court identification of Gordon as her

assailant shortly after the incident, as well as her incourt identification of him. See State v. Gordon, supra,

185 Conn. 403–404, 407, 417–19. On appeal to this court,

we concluded that the initial identification procedure,

pursuant to which officers informed the victim that

Gordon had been located near the scene of the crime

and displayed him alone in a room to the victim from

behind a one-way mirror at the police station, was

unnecessarily suggestive and that the identification was

unreliable. See id., 414–18. We further determined that

the victim’s in-court identification of Gordon was not

based on observation independent of the highly suggestive out-of-court identification procedure. See id., 418–

19. Finally, we rejected the state’s contention that the

admission of the victim’s identifications was harmless

error, stating: ‘‘Ordinarily the burden of establishing

that harm resulted from a trial court error rests on the

appellant. . . . However, there are some constitutional

rights so basic to a fair trial that their infraction can

never be treated as harmless error. . . . If error

touches a less basic constitutional right, we sometimes

apply the harmless error exception, but only sparingly,

in a few, discrete circumstances. . . .

‘‘Thus we refuse to expand our harmless constitutional error doctrine to the discrete circumstances of

unnecessarily suggestive and unreliable identifications,

the admission of which significantly impairs the truth

finding function of the jury. . . . Were we to do so we

would fail to correct negligent infractions of constitutional rights and tempt some public officials to overstep

the law in their zeal to convict the guilty. Some would

yield to such temptation. The devastating nature of both

negligently and deliberately obtained, unreliable eyewitness identifications would inevitably lead to the conviction of innocent persons. Hence sound judicial policy

requires reversal whenever the erroneous admission of

an unnecessarily suggestive and unreliable identification has violated a defendant’s constitutional rights.’’9

(Citations omitted; internal quotation marks omitted.)

Id., 419–20.

Upon reexamination of Gordon, we conclude that

its reasoning is fundamentally flawed for two reasons.

First, our holding was based on the faulty premise that

harmless error review only applies ‘‘in a few, discrete

circumstances.’’(Internal quotation marks omitted.)Id.,

419. As we explain hereinafter, automatic reversal, not

harmless error review, is the exceptional remedy for

instances of constitutional impropriety. Second, the

state’s use of unreliable eyewitness identifications

resulting from unduly suggestive police procedures is

not one of the rare circumstances necessitating a new

trial, as such identification evidence does not inevitably

undermine the integrity or legitimacy of the adjudicatory process. Rather, reviewing courts are fully capable

of ascertaining whether the admission of such tainted
evidence, like the improper admission of any other evidence, affected the fact finder’s ultimate determination.

Logic and reason compel the conclusion, therefore, that

appellate courts should not reverse an otherwise trustworthy conviction merely because it was based in part

on improperly obtained and unreliable eyewitness testimony, if the state can establish that the erroneous

admission of that evidence was harmless.

Although the court in Gordon concluded that harmless error review was applicable only when a defendant’s ‘‘less basic constitutional right[s]’’ are infringed

on;(internal quotation marks omitted)id., 419; we agree

with Judge Lavine that ‘‘the legal landscape supporting

the premise of the . . . holding [in Gordon]—that,

when a defendant’s constitutional rights have been violated, harmless error analysis is the exception to the

general rule, only to be used sparingly, in a few, discrete

circumstances; [id.]—has changed substantially since

Gordon was decided. As [this court] explained in State

v. Jenkins, 271 Conn. 165, [186–87] 856 A.2d 383 (2004):

It is well settled that most improprieties, even those of

constitutional magnitude, can be harmless and, therefore, do not require the reversal of a defendant’s conviction. . . . [T]he appellate harmless error doctrine is

rooted in that fundamental purpose of our criminal

justice system—to convict the guilty and acquit the

innocent. The harmless error doctrine recognizes the

principle that the central purpose of a criminal trial is

to decide the factual question of the defendant’s guilt

or innocence . . . and promotes public respect for the

criminal process by focusing on the underlying fairness

of the trial rather than on the virtually inevitable presence of immaterial error. . . . Accordingly, we forgo

harmless error analysis only in rare instances involving a structural defect of constitutional magnitude.

. . . Structural defect cases defy analysis by harmless

error standards because the entire conduct of the trial,

from beginning to end, is obviously affected . . . . Arizona v. Fulminante, [499 U.S. 279, 309–10, 111 S. Ct.

1246, 113 L. Ed. 2d 302 (1991)]. . . .

* * *

‘‘Therefore, the statement in State v. Gordon, supra,

185 Conn. 419, that Connecticut appellate courts sometimes apply the harmless error exception, but only sparingly, in a few, discrete circumstances, lacks viability.’’

(Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Artis, supra, 136 Conn.

App. 635–37 (Lavine, J., concurring in part and dissenting in part); see also Rose v. Clark, 478 U.S. 570,

579, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (‘‘if the

defendant had counsel and was tried by an impartial

adjudicator, there is a strong presumption that any

other errors that may have occurred are subject to

harmless-error analysis’’).

As Judge Lavine explained, the court’s assertion in
Gordon that appellate courts infrequently apply the

harmless error doctrine to constitutional violations is

an inaccurate statement of the law, at least as that law

has developed since Gordon was decided. In view of

the fact that our holding in Gordon is founded on a

flawed premise, we must determine whether that holding nevertheless is sustainable on the ground that the

admission of unnecessarily suggestive and unreliable

eyewitness identifications is one of the rare forms of

structural error to which harmless error review does

not apply. As we now explain, the improper admission

of such evidence does not constitute structural error.

We previously have stated that structural defect cases

‘‘contain a defect affecting the framework within which

the trial proceeds, rather than simply an error in the

trial process itself. . . . Such errors infect the entire

trial process . . . and necessarily render a trial fundamentally unfair . . . . Put another way, these errors

deprive defendants of basic protections without which

a criminal trial cannot reliably serve its function as a

vehicle for [the] determination of guilt or innocence

. . . and no criminal punishment may be regarded as

fundamentally fair.’’ (Citations omitted; internal quotation marks omitted.) State v. Jenkins, supra, 271 Conn.

187. Thus, ‘‘when the consequences of the deprivation

of the defendant’s constitutional right are necessarily

unquantifiable and indeterminate, [the deprivation of

that right] unquestionably qualifies as structural error.’’

(Internal quotation marks omitted.) State v. Lopez, 271

Conn. 724, 738, 859 A.2d 898 (2004). ‘‘A structural error

creates a defect in the trial mechanism such that, while

it is virtually impossible to pinpoint the exact harm, it

remains abundantly clear that the trial process was

flawed significantly. For this reason, [e]rrors of this

magnitude are per se prejudicial and require that the

underlying conviction be vacated.’’ (Emphasis added;

internal quotation marks omitted.) Id., 739. Examples

of such structural errors include, among others, racial

discrimination in the selection of a grand jury or petit

jury and the denial of a defendant’s right to counsel,

right to a public trial, or right to self-representation.

See, e.g., Batson v. Kentucky, 476 U.S. 79, 100, 106 S.

Ct. 1712, 90 L. Ed. 2d 69 (1986) (racial discrimination

in selection of petit jury); Vasquez v. Hillery, 474 U.S.

254, 263–64, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)

(racial discrimination in selection of grand jury); Waller

v. Georgia, 467 U.S. 39, 49 n.9, 104 S. Ct. 2210, 81 L.

Ed. 2d 31 (1984) (denial of right to public trial); Faretta

v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 45 L.

Ed. 2d 562 (1975)(denial ofright to self-representation);

Gideon v. Wainwright, 372 U.S. 335, 344–45, 83 S. Ct.

792, 9 L. Ed. 2d 799 (1963) (denial of right to counsel);

see also Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437,

71 L. Ed. 749 (1927) (denial of right to impartial judge).

Another example of structural error, namely, instructional error concerning the reasonable doubt standard,
is illustrative. As the United States Supreme Court

explained in Sullivan v. Louisiana, 508 U.S. 275, 113

S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the ‘‘right to a jury

verdict of guilt beyond a reasonable doubt is . . . a

basic protection [the] precise effects [of which] are

unmeasurable, but without which a criminaltrial cannot

reliably serve its function . . . .’’ (Citation omitted;

internal quotation marks omitted.) Id., 281. The court

further stated that an incorrect definition of reasonable

doubt in a jury instruction ‘‘vitiates all the jury’s findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have

done. And when it does that, the wrong entity judge[s]

the defendant guilty.’’ (Emphasis omitted; internal quotation marks omitted.) Id. Accordingly, the court concluded that ‘‘[t]he deprivation of [the] right [to a jury

verdict of guilty beyond a reasonable doubt], with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error.’’

(Internal quotation marks omitted.) Id., 281–82.

In reaching its conclusion, the court in Sullivan distinguished improper reasonable doubt instructions

from ‘‘errors [that] occur during the presentation of the

case to the jury, and [that] may therefore be quantitatively assessed in the context of other evidence presented . . . .’’ (Citation omitted; internal quotation

marks omitted.) Id., 281. When this type of impropriety

occurs, the defendant’s conviction will not be reversed

if the state demonstrates, in light of independent evidence establishing the defendant’s guilt, that the violation of the defendant’s constitutionalright was harmless

beyond a reasonable doubt. See, e.g., State v. Mitchell,

296 Conn. 449, 459–60, 996 A.2d 251 (2010). As we discussed previously, most constitutional violations are

subject to such harmless error review. See, e.g., Moore

v. Illinois, 434 U.S. 220, 232, 98 S. Ct. 458, 54 L. Ed. 2d

424 (1977) (harmless error review applies to admission

of pretrial identification in violation ofright to counsel);

Milton v. Wainwright, 407 U.S. 371, 377–78, 92 S. Ct.

2174, 33 L. Ed. 2d 1 (1972) (admission of postindictment

confession in violation of right to counsel subject to

harmless error review); Chambers v. Maroney, 399 U.S.

42, 53, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (admission

of evidence in violation of fourth amendment does not

warrantreversal if it was harmless); Harrington v. California, 395 U.S. 250, 252–54, 89 S. Ct. 1726, 23 L. Ed.

2d 284 (1969) (no reversal required when admission

of evidence in violation of right to confront witnesses

constituted harmless error); State v. Mitchell, supra,

459 (harmless error doctrine applies to admission of

statements taken in violation of Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

The state’s use of an unreliable eyewitness identification that was the product of an unnecessarily suggestive

procedure does not infect or permeate the entire trial

process in the same manner as structural errors do;
rather, the use of such evidence simply results in the

introduction of additional, albeit improper, evidence

into the proceedings. A reviewing court can examine

the relative weight and import of such evidence to determine whether it may have influenced the jury’s verdict

in light of the other evidence adduced by the state.

Furthermore, we reject the defendant’s contention that

the highly persuasive nature of eyewitness identification evidence mandates the conclusion that its improper

admission is tantamount to structural error in that

harmless error analysis would be an inadequate remedy

for the due process violation. On the contrary, even the

unconstitutional admission of a defendant’s involuntary

confession, which ‘‘is probably the most probative and

damaging evidence that can be admitted against him’’;

Arizona v. Fulminante, supra, 499 U.S. 296; is subject

to harmless error review. Id., 295–96. In sum, we see

no reason to treat the improper admission of eyewitness

identification evidence as structural error because it

simply is not error of a structural nature. We also see

no reason to treat the admission of such evidence as

qualitatively different, for purposes of harmless error

review, from any other improperly admitted evidence.

Moreover, it is significant that, because of the constitutional magnitude of the error, the burden falls on the

state to prove that the admission of the tainted identification was harmless beyond a reasonable doubt. See,

e.g., State v. Rose, 305 Conn. 594, 625–26, 46 A.3d 146

(2012). Therefore, if there is any reasonable doubt that

the admission of the identification was harmful, the

defendant will be entitled to a new trial.

This conclusion accords with the view of federal and

sister state courts, which uniformly apply harmless

error analysis to claims that the admission of an unnecessarily suggestive and unreliable eyewitness identification deprived a defendant of a fair trial. See, e.g., Manson v. Brathwaite, supra, 432 U.S. 118 n.* (Stevens, J.,

concurring); Commonwealth v. Jones, 423 Mass. 99,

105–106, 666 N.E.2d 994 (1996); State v. Van Egmond,

206 Neb. 356, 359, 293 N.W.2d 74 (1980); People v. Johnson, 80 N.Y.2d 798, 799, 599 N.E.2d 682, 587 N.Y.S.2d

278 (1992); State v. Souza, 110 R.I. 261, 268–69, 292

A.2d 214 (1972). Indeed,the defendant has not identified

a single case other than Gordon, and our research has

not disclosed one, in which a court has held that the

improper admission of such identification evidence is a

type of structural errorrequiring per se reversal. Indeed,

this court never has applied Gordon to grant an automatic reversal of a conviction in a case involving eyewitness identification testimony, the use of which violated

principles of due process. On the contrary, since our

decision in Gordon, we have indicated that harmless

error review would apply in such circumstances. State

v. Milner, supra, 206 Conn. 536 n.11.

It appears that our holding in Gordon may have been

predicated on policy considerations above and beyond
any constitutional requirements. See State v. Gordon,

supra, 185 Conn. 420 (‘‘sound judicial policy requires

reversal [of a conviction] whenever the erroneous

admission of an unnecessarily suggestive and unreliable

identification has violated a defendant’s constitutional

rights’’). To the extent that Gordon rests on such independent policy concerns, we are not persuaded that

they outweigh the policy favoring harmless error

review. As we have recognized, ‘‘[a] criminal trial is a

search for truth’’; (internal quotation marks omitted)

State v. Morales, 232Conn. 707, 723, 657 A.2d 585 (1995);

and, when the state’s improper use of inadmissible evidence, including unreliable eyewitness identification

testimony, does not impair that truth-seeking function—that is, when there is no reasonable possibility

that the result of the trial would have been different

without that evidence—preservation of the defendant’s

conviction serves the strong public interest in convicting the guilty without unfairly prejudicing the

defendant.

We acknowledge the powerful effect that eyewitness

identification testimony has on juries and recognize that

the improper admission of that evidence will constitute

harmful error in many instances, particularly when

there is no other such eyewitness identification testimony. See, e.g., Watkins v. Sowders, 449 U.S. 341, 352,

101 S. Ct. 654, 66 L. Ed. 2d 549 (1981) (Brennan, J.,

dissenting) (‘‘‘[E]yewitness testimony is likely to be

believed by jurors, especially when it is offered with a

high level of confidence, even though the accuracy of

an eyewitness and the confidence of that witness may

not be related to one another at all. All the evidence

points rather strikingly to the conclusion that there is

almost nothing more convincing than a live human

being who takes the stand, points a finger at the defendant, and says ‘‘That’s the one!’’’ ’’ [Emphasis omitted.]).

Nevertheless, the improper use of eyewitness identification testimony does not implicate the structural integrity of a trial, and we cannot say that such testimony

is always so powerful and prejudicial, considering that

testimony in light of the other evidence, that harmless

error review is necessarily inadequate to safeguard the

defendant’s right to a fair trial.10 For these reasons, we

improperly concluded otherwise in Gordon, which we

hereby overrule.11

II

Having concluded that harmless error review applies

to the admission of unreliable eyewitness identifications that are the product of unnecessarily suggestive

procedures, we now must determine whether the purportedly improper admission of Otero’s identification

testimony was harmless beyond a reasonable doubt.

The state maintains that the testimony was indeed

harmless because Miano’s testimony, including her

identification of the defendant, with whom she was
acquainted, provided strong, independent evidence of

the defendant’s guilt. The state further argues that

Otero’s identification of the defendant as the man with

whom he had engaged in a fistfight before being stabbed

did not influence the jury’s finding of guilt because

Otero specifically ‘‘disclaimed any knowledge of

whether the defendant participated in the assault for

which he was convicted,’’ and, therefore, the jury, in

finding the defendant guilty of accessory to assault in

the first degree by means of a dangerous instrument,

must have relied solely on Miano’s identification of the

defendant as one of the three individuals who accosted

Otero while he was on the ground. The defendant maintains that the state’s reliance on Miano’s testimony as

proof of harmlessness is misplaced because Miano was

biased against the defendant, hertestimony was ‘‘imprecise and confused,’’ her ability to observe accurately

was questionable, and she acknowledged that she was

under the influence of alcohol on the evening of the

incident. We agree with the state.

The following additional facts are relevant to our

resolution of this issue. At trial, Otero testified that,

after being knocked to the ground, he was assaulted

by three or four individuals and that, although he was

unable to see any of his assailants, he heard Miano

telling them to stop. He further stated that he had had

no contact with Miano since the night of the assault.

Miano also testified as to what she had observed that

evening, stating that Robert Acevedo, her boyfriend at

the time, drove her, Anna Acevedo and the defendant,

who was dating Anna Acevedo, to Club NV at around

11 p.m. At that time, she had known the defendant for

approximately one to two months, through her friendship with Anna Acevedo. After leaving Club NV, Miano

briefly spoke to Otero while she, Anna Acevedo, and

Robert Acevedo were in Robert Acevedo’s car waiting

for the defendant. Miano testified that, although she

had been ‘‘tipsy’’ earlier from consuming two or three

alcoholic beverages, her vision and hearing were not

impaired after she left Club NV.

As Otero was walking away from Robert Acevedo’s

vehicle, Robert Acevedo, who Miano believed was upset

with Otero for having spoken to her, attempted to strike

Otero with his vehicle. The defendant then arrived and,

after briefly entering the car, left to confront Otero.

Miano, who was distracted by her cell phone, was not

aware of the resulting scuffle until she saw the defendant pushing Otero while they were standing in front

of the vehicle. At this point, Robert Acevedo and Anna

Acevedo got out of the vehicle. As soon as Miano

noticed that Otero had fallen to the ground, she also

exited the vehicle. Miano then observed Robert Acevedo, Anna Acevedo, and the defendant fighting with

Otero, although she acknowledged that she never saw

any of them actually strike Otero. Miano also testified

that, as she was attempting to pull Anna Acevedo off
of Otero and help him stand up, police officers

approached the scene. Miano, Robert Acevedo, Anna

Acevedo, and the defendant then quickly returned to

the vehicle, and Robert Acevedo drove to Miano’s

house. Soon thereafter, Miano ceased all contact with

the Acevedos and the defendant. Finally, Miano testified

that she initially had avoided the police when they

sought her assistance in connection with theirinvestigation of the incident because she feared that Robert

Acevedo, the defendant, or one of his friends might

harm her or her children if she did so.

The principles governing our review of the state’s

claim are well established. ‘‘[W]hether an error is harmful depends on its impact on the trier of fact and the

result of the case. . . . This court has held in a number

of cases that when there is independent overwhelming

evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt. . . . When

an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the

error was harmless beyond a reasonable doubt. . . .

[W]e must examine the impact of the evidence on the

trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . . .

That determination must be made in light of the entire

record [including the strength ofthe state’s case without

the evidence admitted in error].’’ (Internal quotation

marks omitted.) State v. Mangual, 311 Conn. 182, 214–

15, 85 A.3d 627 (2014).

As we noted previously, the defendant was convicted

of being an accessory to assault in the first degree

by means of a dangerous instrument. A person is an

accessory to assault in the first degree by means of a

dangerous instrument when he has the specific intent

to cause serious physical injury to an individual and

solicits, requests, commands, importunes or intentionally aids another person, who, using a dangerous instrument, causes serious injury to that individual while also

possessing the specific intent to do so. See General

Statutes §§ 53a-59 (a) (1) and 53a-8 (a); see also State

v. Williams, 237 Conn. 748, 754, 679 A.2d 920 (1996)

(discussing intent element of § 53a-59 [a] [1]).

Applying these principles to the present case, we

conclude that, even if the admission of Otero’s identification testimony was improper, such testimony was

harmless in light of Miano’s independent identification

of the defendant, whom she knew, as the individual who

initially had confronted Otero and, more importantly, as

one of the three individuals who subsequently assaulted

Otero while he was on the ground. In contrast, Otero

merely identified the defendant, a stranger to him, as

the man with whom he initially had engaged in a fistfight; Otero specifically disclaimed any knowledge of

the identity of the individuals who assaulted him after
he was knocked to the ground. Consequently, in finding

the defendant guilty of accessory to assault in the first

degree by means of a dangerous instrument, the jury

must have credited the testimony of Miano,12 who drove

with the defendant to and from Club NV and had known

him socially for one to two months. Accordingly, it is

highly unlikely that Otero’s identification of the defendant as the man with whom he had a brief fistfight had

any effect on the jury’s finding of guilt with respect to

the charge of assault in the first degree as an accessory.

Cf. State v. Mitchell, supra, 296 Conn. 462–63 (purportedly improper admission of defendant’s statements into

evidence was harmless error because statements were

of limited probative value and victim identified defendant); State v. Dupigney, 78 Conn. App. 111, 120–22,

826 A.2d 241 (admission of evidence identifying defendant as shooter, even if improper, was nevertheless

harmless beyond reasonable doubt because, inter alia,

three independent witnesses also identified defendant

as shooter), cert. denied, 266 Conn. 919, 837 A.2d 801

(2003).

Although the state, during closing argument, mentioned Otero’s identification of the defendant, the state

also argued to the jury that Miano’s testimony alone

was more than sufficient to establish that the defendant

was one of the individuals who had surrounded and

then assaulted Otero. Moreover, the state relied heavily

on Miano’s identification of the defendant in arguing

that the state had proven the defendant’s guilt beyond

a reasonable doubt. Finally, defense counsel crossexamined Otero extensively and impeached him

through the testimony of Bilbo, the police officer who

directly contradicted Otero’s claim that he made a definitive out-of-court identification of the defendant.

We conclude, therefore, that, even if the defendant’s

due process rights were violated by the state’s use of

Otero’s identification testimony, the admission of that

evidence was harmless beyond a reasonable doubt.

Accordingly, we agree with the state that the defendant’s conviction should be affirmed.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

affirm the judgment of the trial court.

In this opinion the other justices concurred.

1 The trial court imposed a total effective sentence of nine years imprisonment, to run concurrently with the term remaining on a preexisting sentence,

followed by eight years of special parole. State v. Artis, 136 Conn. App. 568,

575, 47 A.3d 419 (2012).

2

In Manson v. Brathwaite, supra, 432 U.S. 98, the United States Supreme

Court held that the admission of an eyewitness’ out-of-court identification,

obtained as a result of an unnecessarily suggestive identification procedure,

that is, a procedure that is both suggestive and not justified by exigent

circumstances, violates a defendant’s right to due process under the federal

constitution when ‘‘the ‘indicators of [a witness’] ability to make an accurate

identification’ are ‘outweighed by the corrupting effect’ of law enforcement

suggestion . . . .’’ Perry v. New Hampshire, U.S. , 132 S. Ct. 716,

725, 181 L. Ed. 2d 694 (2012), quoting Manson v. Brathwaite, supra, 116.

Furthermore, an in-court identification by an eyewitness whose out-of-court
identification was unreliable as a result of an unnecessarily suggestive identification procedure also is inadmissible unless it ‘‘is purged of the taint of

the defective pretrial procedure by establishment of the fact that it is based

[on] disassociated and independent observation.’’ State v. Smith, 165 Conn.

680, 685, 345 A.2d 41 (1974).

3 Robert Acevedo and Anna Acevedo also were charged in separate cases.

Robert Acevedo pleaded guilty to conspiracy to commit assault in the first

degree and was sentenced to five years imprisonment. Anna Acevedo

pleaded guilty to assault in the third degree, reckless endangerment in the

first degree, unlawful restraint in the second degree, threatening in the

second degree and breach of the peace in the second degree, and received

a suspended sentence.

4

‘‘Later in the trial, Miano testified that Hershey was the street name for

Robert Acevedo, who she said had been her boyfriend at the time of the

incident and the operator of the car that nearly struck Otero.’’ State v. Artis,

supra, 136 Conn. App. 590 n.17.

5

In Manson v. Brathwaite, supra, 432 U.S. 98, the court identified the

following nonexclusive list of factors that are relevant to a determination

of whether, underthe totality of the circumstances, an out-of-courtidentification resulting from an unnecessarily suggestive police procedure is nevertheless reliable: ‘‘[T]he opportunity of the witness to view the criminal at the

time of the crime, the witness’ degree of attention, the accuracy of his

prior description of the criminal, the level of certainty demonstrated at the

confrontation, and the time between the crime and the confrontation.’’

Id., 114. The trial court expressly considered these factors in reaching its

conclusion that Otero’s identification of the defendant was reliable even

though the police had employed an unnecessarily suggestive identification procedure.

6 The defendant also raised a claim of evidentiary insufficiency with

respect to the charge of accessory to assault in the first degree. See State

v. Artis, supra, 136 Conn. App. 575. The Appellate Court rejected this claim;

id., 585; which is not at issue in the present appeal.

7 See footnote 5 of this opinion.

8

In support of its claim that the Appellate Court incorrectly concluded

that Otero’s identification of the defendant was unreliable, the state argues

that theAppellate Court improperly substituted its own judgment concerning

the weight to be afforded the various factors relevant to the reliability

of Otero’s identification. The state also provides an extensive analysis in

explaining why, in its view, this court should take a cautious approach with

respect to the utility of social science research on the subject of eyewitness

identifications. See, e.g., United States v. Johnson, 745 F.3d 227, 228 (7th

Cir. 2014) (although ‘‘th[e] court has suggested that police show photographs

sequentially rather than as part of an array . . . [s]ome recent research has

called into question the view that sequential presentation of photographs

is superior to photo[graphic] spreads’’ [citations omitted]). We do not

address this issue, however, in view of our conclusion that, even if Otero’s

identification testimony should have been excluded as unreliable, its admission was harmless.

9

Justice Anthony J. Armentano, joined by Justice Arthur H. Healey, dissented in part in Gordon on the ground that the improper admission of

eyewitness identification testimony should be subject to harmless error

analysis and that the improperly admitted identification testimony in that

case was harmless beyond a reasonable doubt. See State v. Gordon, supra,

185 Conn. 426 (Armentano, J., concurring in part and dissenting in part).

10 Judge Lavine provided the following persuasive illustration of this point:

‘‘For example, imagine a bank robbery case in which the out-of-court identification made by a teller is unnecessarily suggestive and unreliable but is

admitted at trial. The bank robber is clearly depicted on [a video recording];

he is found outside the bank in possession of marked bills; his mother

testifies that he admitted to her that he robbed the bank; five independent

witnesses who were inside the bank identify him and he confesses on

television. Under Gordon, harmless error analysis would not be available

following a conviction of the bank robber, and [a reviewing] court would

be required to reverse the conviction.’’ State v. Artis, supra, 136 Conn. App.

634 n.15 (Lavine, J., concurring in part and dissenting in part).

11 The defendant also asserts that we should not overrule Gordon because

‘‘[t]here is no deterrent effect when an appellate court, having concluded

that [an identification] procedure was unnecessarily suggestive, and the

identification unreliable, nevertheless upholds the conviction under the

harmless error doctrine.’’ We disagree. The suppression of unnecessarily
suggestive and unreliable identifications is sufficient to deter police overreaching in the same manner and to the same extent that the suppression

of improperly obtained confessions, the admission of which also is reviewed

for harmless error, adequately deters police coercion. See Arizona v. Fulminante, supra, 499 U.S. 295–96. Moreover, harmless error analysis creates

no incentive for law enforcement officers to overstep the law, as such

officials cannot know whether their actions subsequently will be deemed

harmless.

12 The defendant’s contention that ‘‘the jury could have reasonably doubted

[Miano’s] objectivity’’ because she was ‘‘friends with Otero and intervened

in the scuffle to pull Anna [Acevedo] off of him’’ is belied by the record. At

trial, Miano stated that she briefly had encountered Otero, who was a friend

of the father of her children, only twice in her life prior to seeing him at

Club NV on the night of the assault, and Otero testified that he and Miano

had not been in contact since then. Indeed, Miano even forgot Otero’s last

name during her testimony. Suffice it to say that the record is devoid of

any evidence that Miano was biased against the defendant as a result of

her extremely attenuated relationship with Otero.