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STATE OF CONNECTICUT v. DARNELL MOORE

(AC 38624)

Beach, Keller and Norcott, Js.

Argued September 20—officially released November 29, 2016

(Appeal from Superior Court, judicial district of New

London, Jongbloed, J.)

Allison M. Near, for the appellant (defendant).

David J. Smith, senior assistant state’s attorney, with

whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
Opinion

KELLER, J. The defendant, Darnell Moore, appeals

from the judgment of conviction, rendered following a

jury trial, of murder in violation of General Statutes

§ 53a-54a. The defendant claims that the trial court

improperly (1) denied his motion to strike the jury panel

and (2) denied his motion to suppress evidence. We

affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found that during the evening of August 26, 2010, in the vicinity of Lake Street

in Norwich,the defendant and the victim, Namdi Smart,1

became embroiled in an argument over liquor. The

defendant, known as ‘‘Boo’’ or ‘‘Boo-Boo,’’ was accompanied during this initial altercation by his friend, Tjamel Hendrickson, known as ‘‘Soda Pop.’’ During the

course of the loud, verbal dispute, the victim ripped

the defendant’s T-shirt. As the defendant walked away

from the scene, he was observed pointing to the victim,

and was overheard uttering an expletive and stating

that he would return to ‘‘get’’ the victim.

Shortly thereafter, Hendrickson called Samuel

Gomez on the telephone. He requested that Gomez

come to Norwich with a firearm. Gomez drove to

Spaulding Street in Norwich, where he met with Hendrickson and the defendant. Gomez handed a .45 caliber

handgun to the defendant. Gomez drove the defendant

and another man, Jordan Brown, to the vicinity of Lake

Street so that the defendant could search for the victim.

After the defendant identified the victim, the three men

returned to Spaulding Street for a period of time. Thereafter, Gomez drove the defendant and Brown to yet

another location, where Gomez parked his automobile.

The defendant exited the automobile and, within a few

minutes, he shot the victim on Lake Street, causing his

death. The shooting was witnessed by three bystanders

who lived near the scene of the shooting: Kimberly

Harris, Roslyn Hill, and Laryssa Reeves. The defendant,

who was dressed in a black hooded sweatshirt, a black

hat, a black mask, and jeans,returned to the automobile

still in possession of the gun that Gomez had delivered

to him. The defendant gave possession of the gun to

Brown, who later exited the automobile with it. Gomez

drove the defendant to his mother’s residence before

returning to New London.

Subsequent to these events, the police arrested the

defendant on a murder charge. Following a trial before

a jury, the defendant was found guilty, and the court

sentenced him to serve a fifty-three year term of incarceration. This appeal followed. Additional facts related

to the claims raised in this appeal will be set forth

as necessary.

I

The defendant’s first claim is that the trial court
improperly denied his motion to strike the voir dire

panel. He argues (1) that the trial court improperly

rejected his argument that the voir dire panel did not

reflect a fair cross section of the judicial district from

which it was drawn, in violation of the sixth amendment

to the United States constitution; (2) that the trial court

improperly rejected his argument that the jury selection

procedure violated his right to equal protection guaranteed by the United States constitution; and (3) that

this court should exercise its supervisory authority ‘‘to

mandate that the jury administrator collect demographic data so that it is able to follow the statutory

directive to prevent [discrimination] in jury selection.’’

(Internal quotation marks omitted.) We disagree.

The following additional facts are relevant to this

claim. Jury selection in the defendant’s case commenced on November 14, 2012. At that time, defense

counsel noted for the record that the defendant was an

African-American and that, of the twenty venirepersons

brought to the courtroom that day, there were no African-Americans. Defense counsel stated: ‘‘I have no basis

to claim that there was any systemic effort to exclude

people of color I noted. So, it’s available for other purposes and on the record.’’

As jury selection progressed, on November 16, 2012,

defense counsel stated for the record that, of sixty-eight

venirepersons in the case to that point, ‘‘we’ve not had

one African-American male and, to my knowledge,

there’s been one woman of color, who we did select

as juror number five . . . .’’ Defense counsel stated, in

relevant part: ‘‘I don’t think there’s a systemic effort on

the part of the state to suppress African-American jury

participation, but there certainly is an inadequate effort

made to assure it.’’ After observing that the defendant

was entitled to a jury composed of his peers, defense

counsel stated that he was ‘‘now on the cusp of raising

this as an issue.’’

On November 27, 2012, defense counsel made further

observations with respect to the nature of the venirepersons. He stated that out of four venire panels in the

case to that point in time, consisting of ninety-nine

venirepersons, there were only two ‘‘people of color,

both women. We’ve not had one black male.’’ Defense

counsel stated his belief that 14 percent of the population in Connecticut was African-American and that ‘‘the

venire that we’re getting day by day is notrepresentative

of a fair cross section of the community.’’ Stating his

belief that the racial composition of the venire panels

was possibly accidental, but not intentional, defense

counsel stated that ‘‘there is a disparate impact in the

manner in which juries are being selected, apparently,

at this time in this county because I’m not seeing any

of my client’s peers.’’ Responding to the observations

made by defense counsel, the prosecutor stated that,

although the venirepersons generally did not appear to
be racial peers of the defendant, he did not have enough

information about such venirepersons to address the

issue of their race. The court stated that it would

address the issue if requested to do so by the defense.

On November 28, 2012, the defense filed a written

objection to the composition of the venire panels and

a request for an evidentiary hearing ‘‘whereby the jury

administrator [in New London County] may testify as

to how the jury venires are [assembled] to determine

whether the defendant’s sixth and fourteenth amendment rights to a fair and impartial jury are being

infringed.’’ The defendant argued that, of approximately

100 venirepersons, there were two African-American

women and, to his belief, one male ‘‘who appeared to

have African-American features,’’ but referred to himself in his jury questionnaire as both Hispanic and Latin

American. In his memorandum of law, defense counsel

argued that more information was necessary before the

defense could set forth a prima facie case that the

defendant’s rights under the sixth amendment had been

violated because the venire panels were not representative of a fair cross section of the community. Specifically, the defendant argued that ‘‘it needs to be

determined how many potential jurors are in both the

state and in the county, and how those potential jurors

are then organized into venires. Without this information, we cannot determine whether there is systemic

exclusion that accounts for the underrepresentation

of African-Americans in the defendant’s jury venire in

violation of his sixth and fourteenth amendmentrights.’’

Defense counsel and the prosecutor requested that the

court mark the completed, confidential jury questionnaires in the present case as court exhibits, and the

court did so. Attached as exhibits to the defendant’s

memorandum of law were demographic statistics compiled by the United States Census Bureau. The defendant cited to these exhibits to demonstrate that, in 2011,

Connecticut’s population was 11.1 percent AfricanAmerican and that New London’s population was 6.5

percent African-American. At the subsequent hearing

on the defendant’s motion, these exhibits were admitted

into evidence absent objection. At the conclusion of

the court proceeding on November 28, 2014, defense

counsel observed that, once again, the venire panel

brought to the courtroom that day did not include any

African-American men.

On December 4, 2012, the court held an evidentiary

hearing on the defendant’s motion. At that time, defense

counsel orally amended his motion to request that the

court strike the venire panel.In addition to the confidential jury questionnaires that had been marked as a court

exhibit, as well as the census data, the defense presented testimony from six witnesses: Sam Hannan,

Esther Harris, Monica Endres, Robert Brothers, Louis

Bucari, and Lynn Blackwell.
Hannan, the information technology managerfor jury

administration, testified with respect to the manner by

which he compiles a masterlist of jurors for the Judicial

Branch. He testified that, in compliance with state law,2

he generates this master list by compiling information

from ‘‘source list[s]’’ obtained from four sources: the

Department of Revenue Services, the Department of

Motor Vehicles, the Department of Labor, and the registrars of voters of each town. Hannan testified that nothing in the information at his disposal provides him with

any information with respect to race or ethnicity. Moreover, he testified that he is unaware of any discussions

within the jury administrator’s office as to whether the

master list is likely to produce an adequate and statistically representative cross section of the community as

potential jurors. Hannan went on to testify that persons

who fail to report for jury duty in compliance with their

summonses to do so are automatically referred to the

attorney general’s office, but he was unable to provide

any information with respect to the racial or ethnic

characteristics of such persons. Hannan testified that,

to his knowledge, there have never been any efforts by

his office to systematically exclude members of a certain race from the jury pool.

Harris, the jury administrator for the Judicial Branch,

testified that her duties included summoning jurors,

selecting jurors, and utilizing jurors for the superior

courts in the state. She stated that she does not collect

statistics with respect to the racial characteristics of

jurors because she is not required to collect such information. Harris acknowledged that the confidential jury

questionnaire that is provided to jurors affords prospective jurors the option of providing information concerning their race, but that the form expressly states that

jurors need not furnish such information if they find it

objectionable to do so.3 When asked if she was ‘‘aware

of any tool, any procedure, any policy in the Judicial

Branch that assures that the list of potential jurors

generated from each town reflects the racial composition of that town,’’ Harris responded that she was not

aware of any. Harris testified that, to her knowledge,

neither she nor anyone in her office had systematically

excluded persons from the jury selection process on

the basis of their race.

Endres, the jury clerk for New London, testified that

she collects questionnaires from those jurors who

report for jury duty, but that she does not require them

to provide information concerning their race and that

she does not record such data. She testified that she

has no way of knowing the race of persons who are

summoned for jury duty. Endres testified that she does

not systematically exclude anyone from being a potential juror on the basis of their race.

Brothers, the executive director of the Commission

on Human Rights and Opportunities, testified that his
office did not maintain any racial statistics with respect

to persons who file income tax returns, persons who

register motor vehicles, persons who file for unemployment compensation, or persons who register to vote.

Bucari, the first assistant commissioner and general

counsel for the Department of Revenue Services, testified that his office did not maintain any information

with respect to the racial characteristics of persons who

file income tax returns. Lynn Blackwell, an employee of

the Department of Motor Vehicles, testified that the

department did not collect any data with respect to

racial characteristics.

The parties stipulated that the secretary of the state

did not possess any data with respect to the racial

characteristics of registered voters and that there was

no way for the secretary of the state to determine the

racial composition of the lists provided to the jury

administrator. Moreover, the parties stipulated that

although the attorney general has the authority to bring

enforcement actions against nonappearing jurors, the

attorney general had not pursued a case of juror delinquency for at least three years. Finally, the parties stipulated that the Department of Labor did not maintain

data with respect to the racial or gender characteristics

of recipients of unemployment compensation.

At the conclusion of the hearing, defense counsel

argued that, of approximately 120 prospective jurors

in the present case, it appeared that there were three

African-American women and no African-American

men. Defense counsel stated that the defense did not

intend to argue that there was ‘‘any systemic effort to

exclude people of color’’ from the venire pool. Nonetheless, defense counsel argued, he believed that the defendant had a viable cross-section claim under the sixth

amendment as well as an equal protection claim

because of the lack of diversity in the venire pool and,

particularly, the absence of any African-American men

in the venire pool. Defense counsel, relying on the census data, argued that African-Americans generally were

vastly underrepresented in the venire pool in light of

state and New London County demographics, and

stated that ‘‘the question is [whether] this is an isolated

snapshot, does it reflect some larger systemic issue. I

can’t know that and there is no way, based on the

evidence that is available to [the defendant], that he

can know that, and the reason he can’t know that is the

state refuses to keep that data.’’ Also, defense counsel

argued that the Judicial Branch, bound by statute ‘‘to

assure a nondiscriminatory [venire] panel,’’ had seemingly demonstrated its ‘‘wilful blindness’’ with respect

to the issue by not compiling or maintaining data with

respect to the racial composition of venire panels. He

went on to argue that there seemingly had been a lack

of any commitment to ensure ‘‘any people of color in

this panel . . . .’’
The prosecutor objected to the defendant’s motion

on the ground that, in light of the lack of racial and

ethnic information for many of the venirepersons at

issue, the defendant had failed to demonstrate that the

state had substantially underrepresented a particular

group of prospective jurors. Moreover, the prosecutor

argued, the defendant had not demonstrated any wilful

or systematic discrimination by way of the race-blind

procedures employed in the present case.

By way of a thorough and well reasoned memorandum of decision, the court denied the defendant’s

motion to strike the venire panel. The court discussed

in detail the evidence presented by the defendant at

the hearing on the motion. Among its findings, the court

stated: ‘‘A total of 117 potential jurors appeared in Norwich throughout the jury selection process . . . . On

a number of occasions during jury selection, counsel

for the defendant observed that there were no males

who appeared to be African-American on the Norwich

jury panels. Counsel observed that there were a total

of three females who appeared to be African-American

(one of whom was selected to serve on the jury) and

one male who indicated on his questionnaire that he

was Hispanic/Latino.’’

The court also found: ‘‘No jurors are systematically

excluded on the basis of race. None of the witnesses

who testified had any way of knowing the racial makeup

of the jurors summoned for jury duty in this or any

other case other than [from] the information provided

voluntarily on the confidential juror questionnaire,

which is available for use during voir dire of the particular individual and not retained or recorded.’’

In addressing the defendant’s sixth amendment fair

cross section claim, the court observed that, under

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58

L. Ed. 2d 579 (1979), the defendant bore the burden of

proving that ‘‘(1) the group claimed to be excluded is

distinctive in the community, (2) the representation of

the group in the jury pool is not fair and reasonable in

relation to the number of members of the group in

the community, and (3) the underrepresentation is the

result of systematic exclusion of the group in the jury

selection process.’’ (Internal quotation marks omitted.)

The court, assuming for purposes of its analysis that

African-American males were distinctive in the community, stated that ‘‘the defendant has presented no evidence of any statistical analysis to support his claim

and no evidence from which the court could conclude

any degree of underrepresentation. He points to census

data showing that black people represent 6.5 percent

of the population of New London County and 11.1 percent of the state of Connecticut. . . . He observed that

three jurors in the pool were females who appeared to

be African-American or who represented themselves as
such on the questionnaire. He concedes that he offered

no other data as to the racial makeup of the panel or

the percentage of the group in the pool, claiming the

information was simply not available. The witnesses

testified credibly that no information was maintained

as to the racial or ethnic makeup of jurors reporting

for jury duty in this judicial district. Although there is

a section on the confidential jury questionnaire where

jurors may enter that information voluntarily, they are

not required to do so. The defendant argues that the

action of the state in failing to record or require such

information effectively precludes him from satisfying

his burden. The defendant, however, provides no

authority in support of his contention that the state is

required to maintain information on how jurors identify

themselves racially, and the court declines to find such

a requirement. The defendant has therefore failed in

his proof, having offered insufficient evidence of the

racial makeup of the jury pool or any statistical support

for the claim that the group is underrepresented in

the pool.

‘‘Even if, however, the court were to find that the

group was underrepresented or that the actions of the

state in failing to maintain records concerning the racial

composition of jury pools precluded the defendant from

meeting his burden in this regard, his claim nevertheless

fails because he specifically concedes that he has not

shown systematic exclusion of any group in the jury

selection process. Inasmuch as the defendant has failed

to establish this third prong of the proof required . . .

his challenge to the array on this ground fails.

‘‘The defendant’s claim that failure to take action

with regard to delinquent jurors leads to underrepresentation of a distinctive group also fails since there is no

evidence before the court as to the racial makeup of

delinquent jurors or any evidence that the representation of jurors from a distinctive group would be affected

by enforcement action.’’ (Citation omitted.)

In addressing the equal protection aspect of the

defendant’s claim, the court observed that, under Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51

L. Ed. 2d 498 (1977), the defendant could establish his

claim by proof of ‘‘(1) underrepresentation of a recognizable group; (2) substantial underrepresentation over

a significant period of time; and (3) a selection procedure susceptible to abuse or notracially neutral.’’(Internal quotation marks omitted.)

In rejecting the defendant’s claim, the court stated:

‘‘This claim fails . . . because the third prong . . .

requires proof of discriminatory intent. . . . The defendant has conceded that he has not shown discriminatory

intent. Here . . . the defendant has produced no evidence that Connecticut’s jury selection system is capable of deliberately and systematically denying AfricanAmerican males the opportunity to be selected for jury
service by excluding them from jury arrays. . . . Thus,

the failure to show discriminatory intentrequires denial

of the defendant’s equal protection claim.’’ (Citations

omitted; internal quotation marks omitted.)

A

We first address the defendant’s fair cross section

claim. ‘‘Fair cross section claims are governed by a well

established set of constitutional principles. In order to

establish a violation of his federal constitutional right

to a jury drawn from a fair cross section of the community, the defendant must demonstrate the following: (1)

that the group alleged to be excluded is a distinctive

group in the community; (2) that the representation of

his group in venires from which juries are selected is

not fair and reasonable in relation to the number of

such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the

group in the jury-selection process. . . . [I]n a fair

cross section claim, the defendant need not prove

intent. [S]ystematic disproportion itself demonstrates

an infringement of the defendant’s interest in a jury

chosen from a fair community cross section. The only

remaining question is whether there is adequate justification for this infringement.’’ (Citations omitted; internal quotation marks omitted.) State v. Gibbs, 254 Conn.

578, 588, 758 A.2d 327 (2000).

‘‘[W]e review the [trial] court’s factual determinations

relevant to the defendant’s Sixth Amendment . . .

challenge for clear error . . . but we review de novo

the court’s legal determination whether a prima facie

violation of the fair cross section requirement has

occurred.’’ (Internal quotation marks omitted.) Id., 592.

The defendant has not undermined our confidence

in the factual determinations reached by the trial court

or in the correctness of its legal analysis of the claim.

The defendant failed to present evidence to demonstrate that the representation of African-American

males in venires from which juries are selected was

not fair and reasonable in relation to the number of such

persons eligible to serve as jurors in the community. It

suffices to observe that defense counsel provided the

court with his best guess with respect to the race and

ethnicity of all of the prospective jurors at issue in

the present case, but did not provide the court with

competent evidence of the racial and ethnic characteristics of all of the prospective jurors.4 Additionally, to the

extentthatthe defendant argues thatthere is substantial

underrepresentation in the entire New London jury

pool, he did not even purport to provide the court with

any evidence with respect to the racial and ethnic composition of that jury pool generally. Furthermore, the

only evidence that arguably was relevant to demonstrating the proportion of African-American males who

should have been part of venires that represented a fair

cross section of the community, was the general census
data on which the defense relied. Yet this census data

provided information with respect to the percentage of

all African-Americans in Connecticut and New London

County. Thus, it was not probative with respect to the

inquiry at issue, which necessarily focuses on the percentage of African-American males that are eligible for

jury service. In light of the dearth of evidence with

respect to the relevant factors at issue in the present

claim, we conclude that the defendant has not demonstrated thatthe court erroneously rejected his fair crosssection claim.

B

Next, we address the defendant’s equal protection

claim. ‘‘An equal protection violation in jury selection

procedures may be established by proof of(1) underrepresentation of a recognizable group; (2) substantial

underrepresentation over a significant period of time;

and (3) a selection procedure susceptible to abuse or

not racially neutral.’’ (Internal quotation marks omitted.) Id., 594. ‘‘Although the equal protection test is

similar to the cross section test, the critical difference

is that in an equal protection claim the defendant must

prove discriminatory purpose.’’ (Emphasis added.)

State v. Castonguay, 194 Conn. 416, 421, 481 A.2d 56

(1984).

As discussed in part I A of this opinion, the defendant

failed to demonstrate that substantial underrepresentation of African-American males had occurred. Thus,

it follows that he also failed to demonstrate that any

underrepresentation had occurred over a significant

period of time. Moreover, the court found, and we agree,

that the defendant failed to present any evidence to

demonstrate that the jury selection system was capable

of abuse in the manner suggested. The undisputed evidence presented by the defendantreflected that Judicial

Branch officials were unaware of the racial and ethnic

characteristics of persons summoned for jury duty and

that, to the extent that prospective jurors voluntarily

provided information related to their race or ethnicity

on their confidential juror questionnaire, such information was notretained orrecorded. Finally, the defendant

failed to present any evidence that discriminatory intent

exists. In the course of argument defense counsel stated

to the trial court that the defense lacked any basis upon

which to suggest that there was a systemic effort to

exclude any potential jurors from jury arrays. In light

of the defendant’s failure of proof, the court correctly

rejected his equal protection claim.

C

Last, the defendant urges this court, in the exercise

of its supervisory authority over the administration of

justice, ‘‘to enforce the collection of demographic data

to permit analysis of the diversity of jury panels in Connecticut.’’
‘‘Supervisory authority is an extraordinary remedy

that should be used sparingly . . . . Although [a]ppellate courts possess an inherent supervisory authority

over the administration of justice . . . [that] authority

. . . is not a form of free-floating justice, untethered

to legal principle. . . . Our supervisory powers are not

a last bastion of hope for every untenable appeal. They

are an extraordinary remedy to be invoked only when

circumstances are such that the issue at hand, while

not rising to the level of a constitutional violation, is

nonetheless of utmost seriousness, not only for the

integrity of a particular trial but also for the perceived

fairness of the judicial system as a whole. . . . Constitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and

the integrity of the judicial system. Our supervisory

powers are invoked only in the rare circumstance [in

which] these traditional protections are inadequate to

ensure the fair and just administration of the courts.

. . . Overall, the integrity of the judicial system serves

as a unifying principle behind the seemingly disparate

use of our supervisory powers. . . . Thus, we are more

likely to invoke our supervisory powers when there is

a pervasive and significant problem . . . or when the

conduct or violation at issue is offensive to the sound

administration of justice . . . .’’ (Internal quotation

marks omitted.) State v. Fuller, 158 Conn. App. 378,

392, 119 A.3d 589 (2015).

The defendant asserts that the requested remedy is

necessary to ensure that the Judicial Branch is able to

follow its statutory mandate ‘‘to enforce nondiscrimination in jury selection . . . .’’ General Statutes § 51-232

(c).5 The defendant argues that ‘‘[t]he need to acknowledge the defendant’s right to a jury reflecting a fair

cross section of the community, and to encourage the

public trust in the jury process requires that action be

taken to address the lack of diversity in jury panels

such as the one here.’’

We decline to grant the defendant the extraordinary

remedy that he seeks. As a preliminary matter, the

defendant’s request is supported by an unproven premise, namely, that the jury panels at issue in the present

case reflected significant underrepresentation of a recognized group or were not representative of a fair cross

section of the community. Moreover, it is difficult to

discern how the relief sought by the defendant—the

collection of information related to the race and ethnicity of all prospective jurors—would comport with

the plain language of § 51-232 (c), which expressly

states that prospective jurors need not provide such

information.6

II

Next, the defendant claims that the court improperly

denied his motion to suppress evidence relating to iden-
tifications of him that were made to the police by several

witnesses. The defendant argued that the identifications

were the result of the use of impermissibly suggestive

photographic array procedures. We disagree.

The following facts are relevant to the present claim.

Defense counsel raised the suppression motion orally,

prior to trial. The court held a hearing related to the

motion on November 30, 2012, and December 6, 2012.

At the hearing, the court heard testimony from Sergeant

Patrick Mickens, Sergeant Corey Poore, Detective

James Curtis, and Officer Greg McDonald, all of the

Norwich Police Department. In its thorough memorandum of decision related to the motion to suppress, the

court explicitly stated that it had credited as true the

testimony of these witnesses. The court made the following findings of fact: ‘‘Mickens responded to the

scene of a shooting on Lake Street in Norwich in the

late evening of August 26, 2010, having been notified

by [Harris] . . . whom he knew as a confidential informant [and] with whom he had worked for at least a

year. She was upset and crying, and stated that she

had just seen someone shot in front of her. Sergeant

Mickens took [Harris] in his unmarked car directly to

the Norwich Police Department. She was placed in an

interview room, [and] provided with something to drink

and tissues. After she had composed herself, she was

interviewed. She did not speak to anyone on the way

to the police department. Mickens showed her two

[photographic] arrays together with written witness

instructions in the early morning hours of August 27,

2010. On one (Defendant’s Exhibit A), she identified an

individual she knew to be ‘Boo’ in photograph number

2. On the other (Defendant’s Exhibit B), she identified

an individual she knew to be ‘Soda Pop’ in photograph

number 7. Harris signed and initialed both [photographic] arrays. . . .

‘‘McDonald . . . testified that he was assigned to

investigate the shooting on Lake Street on August 26,

2010. He stated that he maintained a database of street

names and was assigned to meet with two witnesses

who wished to meet at a location other than the Norwich Police Department. On August 27, 2010, McDonald

met with two witnesses, Denise Djedje and [Hill], in a

secluded area near a church parking lot. He separated

the witnesses, that is, while he spoke with Djedje, Hill

was standing farther away drinking coffee and having

a cigarette. He had no concerns that his conversations

with one were overheard by the other. He showed

Djedje two [photographic] arrays together with the written witness instructions for [photographic] identification (Defendant’s Exhibit D). In one, she identified the

person in photograph number 2 as ‘Boo,’ and stated

[that] she was ‘100 percent positive he did the shooting.’

In the other, she identified the person in photograph

number 7 as ‘Soda Pop.’ Djedje signed and initialed both

arrays. Similarly, Hill was shown two [photographic]
arrays with instructions (Defendant’s Exhibit E). In one,

she identified the person in photograph number 2 as

‘Boo,’ stating, ‘[t]hat’s Boo. One hundred percent positive.’ In the other, she identified the person in photograph number 7 as ‘Soda Pop.’ Hill signed and initialed

both [photographic] arrays.

‘‘Norwich police Sergeant Corey Poore testified that

he was assigned to the investigation into the shooting

death on Lake Street in Norwich on August 27, 2010.

As part of his assignment, he showed a [photographic]

array with written witness instructions to [Reeves] on

August 31, 2010. He testified that Reeves came to the

police department voluntarily to provide information.

She identified the person in photograph number 2 as

‘‘ ‘Boo’ and the person who I saw shoot ‘Big Man.’ ’’

(Defendant’s Exhibit F.) She signed and initialed the

[photographic] array. Sergeant Poore testified that

[Reeves] was fearful and she was placed into hiding.7

Poore also showed a [photographic] array with written

witness instructions to Tjamel Hendrickson. (Defendant’s Exhibit G.) This array differed from the array

reflected in defendant’s exhibits A, D, E, F and I. On

that [photographic] array, Hendrickson identified the

person in photograph number 2 as ‘S.A.’ and stated

under witness comments regarding identification: ‘S.A.

is the same person I saw walk down the street toward

Lake Street just before the murder. S.A. came back a

short time later by himself.’ (Defendant’s Exhibit G.)

Hendrickson signed and initialed the array. . . .

‘‘Norwich police Detective James Curtis testified that

he was assigned to the investigation into the shooting

on August 26, 2010, and arrived at the crime scene

shortly before midnight. In the early morning hours of

August 27, 2010, he showed [photographic] arrays to

two individuals at the Norwich Police Department,

namely, Ms. Hutchinson and [Hendrickson], also known

as ‘Soda Pop.’ These two arrived at the police department independently. Detective Curtis first interviewed

Ms. Hutchinson, who then left.8 Approximately ninety

minutes later, Hendrickson was brought into the police

department by Officer Delmar Carter and Mickens. Hendrickson was shown a [photographic] array and pointed

to the individual in photograph number 2. He answered

affirmatively that the person in photograph number 2

was the person known to him as ‘Boo-Boo.’ (Defendant’s Exhibit I.) He signed and initialed the array. . . .

‘‘Each of the five individuals who made the identifications reflected in defendant’s exhibits A, D, E, F and I,

also placed their initials next to each line of the written

witness instructions for [photographic] identifications.

The instructions specifically stated that ‘[t]he person

you saw may or may not be in these photographs.’

Defendant’s Exhibits A, D, E, F and I all reflect the

same [photographic] array in which the defendant is

depicted at position number 2.’’ (Emphasis in original;
footnotes altered.)

The court aptly summarized the argument advanced

by the defendant in support of his motion to suppress

the identification evidence, in which he essentially

asserted that anything other than a ‘‘random presentation’’ in each of the photograph arrays rendered the

identifications unreliable, as follows: ‘‘The defendant

makes the sole claim that the identification procedures

followed here were impermissibly suggestive because

in each array shown to the witnesses in which he was

identified, the defendant’s photograph appeared in the

same position, that is, position number 2. He argues

that there was no effort on the part of law enforcement

to ensure that the witnesses had no contact with each

other and that the procedures followed created a risk

that people will repeat what they have heard from

others.’’

After setting forth relevant legal principles governing

the claim, the court stated its reasoning as follows:

‘‘The court finds that there was no evidence that the

[photograph] arrays or the procedure employed in

obtaining the identifications were unnecessarily suggestive. The actions of the law enforcement officers in

obtaining the identifications were appropriate in all

respects. The defendant’s photograph was not prominently displayed or highlighted, and proper instructions

were given to the witnesses, who were each interviewed

individually. Specifically, each of the witnesses was

advised of the procedure in writing, and placed their

initials next to each of the instructions, including the

instruction that the person they saw ‘may or may not’

be in the photographs. . . . There was no evidence

that officers were anything other than neutral in administering the identification procedure, and the defendant

makes no claim that the officers attempted to influence

the witnesses in making their identifications. The officers in fact made efforts to separate the witnesses, and

no identifications were made or even attempted in the

presence of or within earshot of other witnesses. There

was no evidence that the witnesses had contact with

each other, or attempted to have contact with each

other, concerning the identification. Indeed, the only

claim made here is that the witnesses were shown

arrays in which the defendant appeared in the same

position, position number 2. There is no requirement

under the circumstances presented here that the officers reconfigure [photograph] arrays shown to different

witnesses.’’ (Citation omitted.) Having concluded that

there was no evidence that the identifications resulted

from an unnecessarily suggestive procedure, the court

denied the motion to suppress.

‘‘[T]he standard of review for a motion to suppress

is well settled. A finding of fact will not be disturbed

unless it is clearly erroneous in view of the evidence

and pleadings in the whole record . . . . [W]hen a
question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s

constitutional rights, [however] and the credibility of

witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by

a scrupulous examination of the record to ascertain

that the trial court’s factual findings are supported by

substantial evidence.’’ (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 222, 100 A.3d

821 (2014). In contrast, ‘‘[when] the legal conclusions

of the court are challenged, [our review is plenary,

and] we must determine whether they are legally and

logically correct and whether they find support in the

facts set out in the court’s memorandum of decision

. . . .’’ (Internal quotation marks omitted.) State v.

Mitchell, 296 Conn. 449, 458, 996 A.2d 251 (2010).

‘‘Due process requires that [eyewitness] identifications [may be admitted at trial] only if they are reliable

and are not the product of unnecessarily suggestive

police procedures. . . . Because reliability is the linchpin in determining the admissibility of identification

testimony . . . a two part test has developed to make

that determination. . . . 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. . . .

‘‘Therefore, [t]he critical question . . . is what

makes a particular identification procedure suggestive

enough to require the court to proceed to the second

prong and to considerthe overallreliability ofthe identification. . . . [T]he entire procedure, viewed in light

of the factual circumstances of the individual case . . .

must be examined to determine if a particularidentification is tainted by unnecessary suggestiveness. The individual components of a procedure cannot be examined

piecemeal but must be placed in their broader context

to ascertain whether the procedure is so suggestive that

it requires the court to consider the reliability of the

identification itself in order to determine whether it

ultimately should be suppressed. . . . In making this

determination, the court should focus on two factors.

The first factor concerns the composition of the photographic array itself. In this regard, courts have analyzed

whether the photographs used were selected or displayed in such a manner as to emphasize or highlight

the individual whom the police believe is the suspect.

. . . The second factor, which is related to the first but

conceptually broader, requires the court to examine

the actions of law enforcement personnel to determine

whetherthe witness’ attention was directed to a suspect

because of police conduct. . . . In considering this
[factor, the court should] look to the effects of the

circumstances ofthe pretrial identification, not whether

law enforcement officers intended to prejudice the

defendant. . . . It stands to reason that police officers

administering a photographic identification procedure

have the potential to taint the process by drawing the

witness’ attention to a particular suspect. This could

occur either through the construction of the array itself

or through physical or verbal cues provided by an officer. . . . The failure of a police officer to provide an

affirmative warning to witnesses that the perpetrator

may or may not be among the choices in the identification procedure is one circumstance that may increase

the likelihood of a mistaken identification. . . .

‘‘[A] challenge to a trial court’s conclusion regarding

whether the pretrial identification procedure was

unnecessarily suggestive presents a mixed question of

law and fact. . . . [B]ecause [however] the issue of the

reliability of an identification involves the constitutional

rights of an accused . . . we are obliged to examine

the record scrupulously to determine whether the facts

found are adequately supported by the evidence and

whether the court’s ultimate inference of reliability was

reasonable. . . . [W]e will not disturb the findings of

the trial court as to subordinate facts unless the record

reveals clear and manifest error.’’ (Citations omitted;

emphasis omitted; internal quotation marks omitted.)

State v. Outing, 298 Conn. 34, 47–50, 3 A.3d 1 (2010),

cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed.

2d 316 (2011).

Before this court, the defendant reiterates the claim

that he raised before the trial court. His claim is based

on the undisputed evidence that the same array, with

his photograph in position number two, was shown to

each of the witnesses at issue. In challenging the trial

court’s resolution of his motion to suppress, however,

the defendant sets forth a discrete argument; he argues

that the trial testimony of Reeves undermined the

court’s finding that the witnesses did not have contact

with each other concerning their identification of the

defendant by means of the photograph arrays.

As set forth previously, among the findings made by

the court in support of its conclusion that the identifications were not the result of an identification procedure

that, as the defendant claims, was unnecessarily suggestive because of the fact that the identical photograph

array was shown to several witnesses who may have

had contact with one another concerning the composition of the array, was that ‘‘[t]here was no evidence

that the witnesses had contact with each other, or

attempted to have contact with each other, concerning

the identification.’’ In accordance with the standard of

review set forth previously in this opinion, we must

scrupulously examine the entire record, including the

trial testimony on which the defendant relies, to deter-
mine whether the court’s finding is supported by substantial evidence.

The defendant does not challenge the court’s detailed

findings of fact related to the testimony of Mickens,

McDonald, Poore, and Curtis with respectto the manner

in which they administered the photograph arrays at

issue. As set forth previously in this opinion, the court

found that on August 27, 2010, the day following the

shooting, McDonald met with Djedje and Hill in a

church parking lot, where he showed photograph arrays

to each witness separately, and neither was able to hear

or observe how the other’s identification procedure was

being conducted. Each witness identified the defendant

in position numbertwo. The court found that, on August

31, 2010, Poore met with Reeves at the police department, where he showed her a photograph array. Reeves

identified the defendant in position number two. There

was no claim raised by the defendant that the photograph arrays themselves were inherently suggestive.

Having reviewed the evidence presented at the suppression hearing, we agree with the court that there was

no evidence that the police had attempted to influence

the witnesses or that the police administered the arrays

in such a manner that the identification of one witness

could have influenced the identification of another witness. There was no evidence presented at the suppression hearing that the identification made by any witness

had been influenced by another witness.

The defendant draws our attention to the trial testimony of Reeves and, because of our obligation to scrupulously examine the entire record to determine

whether the trial court’s findings are supported by substantial evidence, we will examine that testimony. By

way of establishing her familiarity with the defendant,

Reeves testified that, prior to the time of the shooting,

she had been in the defendant’s presence and that she

had made ‘‘[s]mall talk’’ with him. She testified that she

observed the defendant and the victim engaged in an

argument and, later that evening, she observed the

defendant shoot the victim.

During cross-examination, Reeves testified that in the

five days between the shooting and the time that she

provided information to the police, she discussed the

shooting incident with Hill and Djedje, with whom she

was residing. The following colloquy between defense

counsel and Reeves occurred:

‘‘Q. . . . But you did get a chance in the five days

that passed between the shooting to talk about this

case with [Hill] and [Djedje], correct?

‘‘A. Yes.

‘‘Q. How often did you talk about it with them?

‘‘A. I only said what I saw.

‘‘Q. I didn’t ask you that. How often did you talk with
them about it?

‘‘A. I only probably said it about once.

‘‘Q. About once?

‘‘A. Yes.’’

After defense counsel established that, following the

shooting, Reeves had resided with Hill and Djedje, the

following exchange occurred:

‘‘Q. And this was a shocking event, correct?

‘‘A. Yes.

‘‘Q. An event that you certainly talked about more

than once as you tried to process the horror of seeing

a man die before your very eyes; isn’t that right?

‘‘A. I really did not mention it too much because of

how scared I was.

‘‘Q. Hmm?

‘‘A. I did not come up with it too many times because

of how scared I was. I used to keep a lot of things in.

‘‘Q. Okay. Okay. Did they talk about it while you

listened?

‘‘A. Not too much, but they did with them alone. But

I never added into the conversation.

‘‘Q. So, you never heard anything?

‘‘A. I heard things, but I just never really studied it

to the point where I wanted to listen to it.’’

Although the defendant characterizes Reeves’ testimony as evidence that her pretrial identification of the

defendant was influenced by conversations that she

had with Hill and Djedje, following their pretrial identifications of the defendant, a careful review of Reeves’

testimony does not reasonably support such an inference. At no point did Reeves testify that Hill, Djedje,

or anyone else had discussed their identifications of the

defendant with her or with anyone else. There simply is

no basis on which to presume that anyone discussed

the photograph arrays that had been shown to Hill,

Djedje or any other witness, or that any prior identification had influenced that made by Reeves. Not surprisingly, Reeves testified that the shooting itself had been

a topic of conversation, atleastin one instance, between

herself, Hill, and Djedje. We reject the defendant’s interpretation of this testimony as evidence that Reeves was

exposed to any information with respect to the photograph arrays shown to other witnesses. Accordingly,

the defendant is unable to demonstrate that the court’s

findings were not supported by substantial evidence or

that the denial of his motion to suppress was erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

1 There was evidence that the victim also was known as ‘‘Big Man.’’
2 See General Statutes § 51-222a.

3 The language on the questionnaire states: ‘‘Pursuant to [General Statutes

§ 51-232 (c)] information concerning race and ethnicity is required solely

to enforce nondiscrimination in jury selection. The furnishing of this information is not a prerequisite to being qualified for jury service. This information

need not be furnished if you find it objectionable to do so.’’

4 We observe that a great number of the confidential juror questionnaires

that were marked as court exhibits do not reflect any information with

respect to the race and ethnicity of the prospective jurors, and that the

record does not otherwise furnish a basis upon which to ascertain the race

and ethnicity of every prospective juror.

5 General Statutes § 51-232 (c) provides: ‘‘The Jury Administrator shall

send to a prospective juror a jury confirmation form and a confidential juror

questionnaire. Such questionnaire shall include questions eliciting the juror’s

name, age,race and ethnicity, occupation, education and information usually

raised in voir dire examination. The questionnaire shall inform the prospective juror that information concerning race and ethnicity is required solely

to enforce nondiscrimination in jury selection, that the furnishing of such

information is not a prerequisite to being qualified for jury service and that

such information need not be furnished if the prospective juror finds it

objectionable to do so. Such juror confirmation form and confidential juror

questionnaire shall be signed by the prospective juror under penalty of false

statement. Copies of the completed questionnaires shall be provided to the

judge and counsel for use during voir dire orin preparation therefor. Counsel

shall be required to return such copies to the clerk of the court upon

completion of voir dire. Except for disclosure made during voir dire or

unless the court orders otherwise, information inserted by jurors shall be

held in confidence by the court, the parties, counsel and their authorized

agents. Such completed questionnaires shall not constitute a public record.’’

(Emphasis added.)

6 The defendant does not expressly argue that this court should direct

the jury administrator to collect such information for all prospective jurors.

Yet, if this court were to direct the jury administratorto collect such information from only those jurors who voluntarily provide it, the resulting data,

reflecting information concerning some but not all prospective jurors, would

not provide an accurate basis on which to assess the racial and ethnic

characteristics of prospective jurors as a whole.

7 At the suppression hearing, Poore testified that Reeves was ‘‘placed into

hiding’’ for an indeterminate period of time because she feared for her

physical safety. Poore did not explain in detail what ‘‘placed into hiding’’

entailed, except to state that ‘‘it wasn’t anything that was provided by the

city or the state. It was more just kind of a safe haven for [Reeves].’’

8 The court further stated in its memorandum of decision: ‘‘The state

represented that it did not intend to offer evidence concerning Ms. Hutchinson’s identification.’’