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STATE v. DICKSON—THIRD CONCURRENCE

ROBINSON, J., concurring. I share the majority’s concern about the inherently suggestive nature of first time

in-court identifications at criminal trials.1I am, however, concerned about the majority’s election to decide

the merits of the federal constitutional issues concerning such identifications raised by the defendant,

Andrew Dickson, under these circumstances. In my

view, this court’s analysis more appropriately starts

and ends with part V of the majority opinion, which

‘‘assume[s] that [the] in-court identification of the

defendant [by one of the victims] was improperly admitted,’’ but nevertheless ‘‘conclude[s] that any due process violation was harmless beyond a reasonable

doubt.’’ Given this conclusion, I believe that parts I

through IV ofthe majority opinion appearto be inconsistent with our long held commitment to avoid unnecessarily deciding constitutional issues. See Moore v.

McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986). This

is particularly troublesome because the state’s ultimate

victory in this appeal renders the majority’s analysis of

a complex and controversial issue of federal constitutional law virtually unreviewable under the ‘‘usual rule’’

of the United States Supreme Court in its exercise of

its certiorari jurisdiction, which is to deny petitions

filed by prevailing parties. Camreta v. Greene, 563 U.S.

692, 709, 131 S. Ct. 2020, 179 L. Ed. 2d 1118 (2011);

see also 28 U.S.C. § 1257 (a) (providing for certiorari

jurisdiction over state court decisions).2 Accordingly, I

join only in part V of the majority’s opinion and this

court’s ultimate decision to affirm the judgment of the

Appellate Court upholding the defendant’s convictions

of assault in the first degree in violation of General

Statutes § 53a-59 (a) (1), and conspiracy to commit

robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4).

It is well settled that ‘‘[t]his court has a basic judicial

duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.

. . . The best teaching of this [c]ourt’s experience

admonishes us not to entertain constitutional questions

in advance of the strictest necessity.’’ (Citations omitted; internal quotation marks omitted.) Moore v. McNamara, supra, 201 Conn. 20–21; see Parker v. Los

Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144

(1949); Rescue Army v. Municipal Court, 331 U.S. 549,

568–74, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947); Ashwander

v. Tennessee Valley Authority, 297 U.S. 288, 346–47, 56

S. Ct. 466, 80 L. Ed. 688 (1936)(Brandeis, J., concurring).

‘‘We do not take lightly our responsibility to act as the

final arbiter in resolving issues relating to our constitution. . . . We also, however, do not engage in

addressing constitutional questions unless their resolution is unavoidable.’’ (Citations omitted.) State v.
McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002); see

also Kinsey v. Pacific Employers Ins. Co., 277 Conn.

398, 420–22, 891 A.2d 959 (2006) (Zarella, J., concurring) (collecting authorities). The United States

Supreme Court has described this doctrine of constitutional avoidance as ‘‘more deeply rooted than any other

in the process of constitutional adjudication . . . .’’

(Internal quotation marks omitted.) Rescue Army v.

Municipal Court, supra, 570 n.34.

This court often applies the doctrine of constitutional

avoidance not to decide difficult questions of constitutional law when the state has established that any constitutional error will not affect the result of the appeal

because it is harmless beyond a reasonable doubt.

‘‘Under such circumstances, it would [not be an efficient

use of] judicial resources, and a pedantic exercise, to

delve deeply into the constitutional merits of a claim

that can appropriately be resolved in accordance with

the relevant harmless error analysis.’’ (Citations omitted.) State v. Golding, 213 Conn. 233, 241–42, 567 A.2d

823 (1989); see also United States v. Hasting, 461 U.S.

499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). For

example, in State v. Jordan, 314 Conn. 89, 96, 101 A.3d

179 (2014), the defendant raised a complex challenge

to the seizure of drugs from a closet near where he was

arrested under the fourth amendment to the United

States constitution. See id., 96–98 (noting questions

over scope of Arizona v. Gant, 556 U.S. 332, 129 S. Ct.

1710, 173 L. Ed. 2d 485 [2009], with respect to searches

incident to arrest under Chimel v. California, 395 U.S.

752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969]). Observing

the ‘‘unsettled’’ nature of the law in this area given a

‘‘split’’ among the federal courts, this court ‘‘conclude[d]

that the present case does not require us to weigh in

on this debate. Even if we assume, without deciding,

that the facts and the law should have led the trial court

to suppress the evidence seized from the closet, we are

fully convinced that any improper admission of the

evidence is harmless beyond a reasonable doubt in light

of the unchallenged evidence seized from the defendant’s person.’’ (Emphasis added.) State v. Jordan,

supra, 100–101.

Identification cases like the present case are no

exception to the doctrine of constitutional avoidance.

Recently, in State v. Artis, 314 Conn. 131, 145, 101 A.3d

915 (2014), this court declined to consider a constitutional challenge to the reliability of an out-of-court identification that the state had conceded ‘‘was

unnecessarily suggestive,’’ because, ‘‘even if[the]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.’’ See also id., 155–56 (overruling 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], and
concluding that use of unreliable eyewitness identification resulting from unnecessarily suggestive procedure

is not structural error and, therefore, subject to harmless error review). The majority opinion and Justice

Zarella’s concurring opinion comprehensively explore

the divergent approaches taken by the United States

Circuit Courts of Appeal and our sister states with

respect to first time in-court identifications, and I need

not repeat them here. Suffice it to say, given the deep

division in the law in this area, I would follow the

doctrine of constitutional avoidance, as exemplified by

our recent decisions in Artis and Jordan, and not weigh

in on the difficult federal constitutional issue in this

case, in which the claimed due process violation is

ultimately harmless error.3

Further weighing in favor of restraint is the fact that

we already have a controlling precedent, State v. Smith,

200 Conn. 465, 469, 512 A.2d 189 (1986), which the

majority overrules in part I of its opinion. That the

majority’s constitutional analysis implicates stare decisis4

is even more reason that we should be reticent to

resolve the defendant’s federal constitutional claims.

That doctrine ‘‘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. Artis, supra, 314 Conn. 146.

The majority, however, supports its decision to overrule Smith and impose a constitutionally based prophylactic rule with respect to first time in-court

identifications by observing that the United States

Supreme Court ‘‘has the authority to overrule our decision’’ should it disagree with this court’s resolution of

the constitutional issue.5 See footnote 11 of the majority

opinion. I respectfully disagree with the majority’s reliance on the United States Supreme Court’s certiorari

process as a safety net for its interpretation of the

federal due process clause given the posture of this

case, wherein the state ultimately prevails entirely by

obtaining an affirmance of the defendant’s convictions,

albeit on harmless error grounds. This is because it is

well settled that the ‘‘usual rule’’ of the United States

Supreme Court is not to ‘‘[consider] prevailing parties’

petitions [for writs of certiorari]’’ and, thus, that court

would not be able to review the majority’s analysis of

the constitutional issue in the present case. Camreta

v. Greene, supra, 563 U.S. 709.

Although the United States Supreme Court is not
precluded constitutionally or statutorily from granting

a petition filed by a prevailing party,6

it has stated that

its ‘‘resources are not well spent superintending each

word a lower court utters en route to a final judgment

in the petitioning party’s favor.’’ Id., 704. The court,

‘‘therefore [has] adhered with some rigor to the principle that [t]his [c]ourtreviews judgments, not statements

in opinions.’’ (Internal quotation marks omitted.) Id.;

see also Bunting v. Mellen, 541 U.S. 1019, 1023, 124 S.

Ct. 1750, 158 L. Ed. 2d 636 (2004) (Scalia, J., dissenting

from denial of certiorari) (‘‘although the statute governing our certiorari jurisdiction permits application by

‘any party’ to a case in a federal court of appeals . . .

our practice reflects a ‘settled refusal’ to entertain an

appeal by a party on an issue as to which he prevailed’’).

‘‘On the few occasions when we have departed from

that principle, we have pointed to a policy reaso[n] . . .

of sufficient importance to allow an appeal by the winner below.’’ (Internal quotation marks omitted.) Camreta v. Greene, supra, 563 U.S. 704. I suggest that the

United States Supreme Court’s reviewability precedents

disclose no such policy reason that would allow certiorari review in this otherwise routine criminal appeal.7

Particularly instructive on this point is California v.

Rooney, 483 U.S. 307, 107 S. Ct. 2852, 97 L. Ed. 2d 258

(1987) (per curiam). In that case, the United States

Supreme Court ‘‘granted the [s]tate’s petition for certiorari to decide whether [the] respondent retained an

expectation of privacy in a bag that he placed in the

communal trash bin of a multi-unit apartment building,’’

despite the fact that the state had prevailed entirely

before a state appellate court, which had determined

that there was sufficient other evidence beyond the

trash bin search to support probable cause for the challenged warrant. Id., 308–11. Ultimately, the United

States Supreme Court dismissed the appeal as improvidently granted,reasoning that the challenged ‘‘judgment

. . . was entirely in the [s]tate’s favor—the search warrant which was the sole focus of the litigation was

deemed valid. The fact that the [state appellate court]

reached its decision through analysis different than this

[c]ourt might have used does not make it appropriate

for this [c]ourt to rewrite the [state appellate] court’s

decision, or for the prevailing party to request us to

review it. That the [state appellate court] even

addressed the trash bin issue is mere fortuity; it could

as easily have held that since there was sufficient evidence to support the search even without the trash

evidence, it would not discuss the constitutionality of

the trash search. The [state appellate court’s] use of

analysis that may have been adverse to the [s]tate’s

long-term interests does not allow the [s]tate to claim

status as a losing party for purposes of this [c]ourt’s

review.’’ (Emphasis added.) Id., 311.

Rooney suggests, then, that it is extraordinarily

unlikely that the Supreme Court would grant certiorari
to consider any challenge by the state to the majority’s

resolution of the merits of the defendant’s federal constitutional claim. The ultimate judgment of the United

States Supreme Court would have no practical effect

whatsoever on the judgment of this court affirming

the defendant’s convictions. Thus, given the majority’s

conclusion in part V of its opinion that the state has

proven any identification error in this case harmless

beyond a reasonable doubt, I do not think it advisable

to rely on the prospect of the United States Supreme

Court’s review to encourage us to go out on a federal

constitutional limb with respect to the complex constitutional issue presented by the merits of the defendant’s

challenge to his first time in-court identification.8

Accordingly, I join in the judgment of the court.

1 Like the majority, I refer to in-court identifications that have not been

preceded by a successful out-of-court identification by the same witness as

first time in-court identifications. See footnote 3 of the majority opinion.

2 Section 1257 (a) of title 28 of the United States Code provides: ‘‘Final

judgments or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme Court by writ of

certiorari where the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any State is drawn

in question on the ground of its being repugnant to the Constitution, treaties,

or laws of the United States, or where any title, right, privilege, or immunity

is specially set up or claimed underthe Constitution orthe treaties or statutes

of, or any commission held or authority exercised under, the United States.’’

3 Other similar examples of constitutional avoidance abound in our jurisprudence. See, e.g., State v. Santos, 318 Conn. 412, 424–25, 121 A.3d 697

(2015) (confrontation clause); State v. Randolph, 284 Conn. 328, 375–76,

933 A.2d 1158 (2007) (declining to consider whether Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 [2004], applies to pretrial

hearings because ‘‘the impropriety was harmless beyond a reasonable doubt

because ample evidence existed to support the trial court’s probable cause

determination’’); State v. Brunetti, 279 Conn. 39, 77, 901 A.2d 1 (2006) (claim

under Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 [1966]), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85

(2007); State v. Lemon, 248 Conn. 652, 663, 731 A.2d 271 (1999) (declining

to consider state constitutional claim concerning commentary on right to

testify because ‘‘the defendant cannot prevail even under the . . . test that

she advocates’’).

4 As Justice Zarella aptly observes in his concurring opinion, the majority

does not analyze whether State v. Smith, supra, 200 Conn. 465, or State v.

Tatum, 219 Conn. 721, 728, 595 A.2d 332 (1991), which it also overrules,

should receive any benefit from the doctrine of stare decisis.

5

I recognize the existence of a debate, highlighted in footnotes 7 and 8

of Justice Zarella’s concurring opinion and footnote 11 of the majority

opinion, over whether the United States Supreme Court itself has the authority to articulate constitutionally based prophylactic rules, such as that of

Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966). Until that court definitively states that it lacks such authority, I

assume that this court shares the interpretive prerogative to articulate those

prophylactic rules that it deems mandated by specific federal constitutional

provisions, so long as those rules are notinconsistent with previous decisions

of the United States Supreme Court. See Ohio v. Robinette, 519 U.S. 33,

39–40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (rejecting, as inconsistent

with Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d

854 [1973], state supreme court’s apparent holding that fourth amendment

requires per se rule ‘‘requir[ing] police officers to always inform detainees

that they are free to go before a consent to search may be deemed voluntary’’); see also Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed.

2d 570 (1975) (‘‘a [s]tate may not impose such greater restrictions as a

matter of federal constitutional law when this [c]ourt specifically refrains

from imposing them’’ [emphasis omitted]); State v. Ledbetter, 275 Conn. 534,

559–60, 881 A.2d 290 (2005) (stating that ‘‘[w]e lack the authority to replace

the [factors set forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375,
34 L. Ed. 2d 401 (1972)] on federal constitutional grounds’’ and that ‘‘[w]e

lack the authority to hold now that, in light of additional scientific information, those factors no longer satisfy federal constitutional strictures’’), cert.

denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

6

‘‘Ordinarily, only a party aggrieved by a judgment or order of a district

court may exercise the statutory right to appeal therefrom. A party who

receives all that he has sought generally is not aggrieved by the judgment

affording the relief and cannot appeal from it. . . . The rule is one of federal

appellate practice, however, derived from the statutes granting appellate

jurisdiction and the historic practices of the appellate courts; it does not

have its source in the jurisdictional limitations of [article three of the United

States constitution]. In an appropriate case, appeal may be permitted from

an adverse ruling collateral to the judgment on the merits at the behest of

the party who has prevailed on the merits, so long as that party retains a

stake in the appeal satisfying the requirements of [article three].’’ (Citations

omitted.) Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333–34,

100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980); see also Camreta v. Greene, supra,

563 U.S. 702 (‘‘[w]e have previously recognized that an appeal brought by

a prevailing party may satisfy [the] case-or-controversy requirement [set

forth in article three]’’).

7 My research disclosed three occasions on which the United States

Supreme Court has granted a petition for certiorari filed by a party that

prevailed entirely in a previous proceeding, all concerning judgments with

some preclusive effect on the petitioner that gave it a continuing stake in

the controversy. See Camreta v. Greene, supra, 563 U.S. 708–709 (adopting

‘‘exempt[ion]’’ to this policy for ‘‘one special category of cases,’’ namely,

civil actions in which government official was adjudged to have violated a

party’s constitutional rights, but nevertheless prevailed on grounds of qualified immunity because, otherwise the official ‘‘must either acquiesce in a

ruling he had no opportunity to contest in this [c]ourt, or defy the views of

the lower court, adhere to practices that have been declared illegal, and

thus invite new suits and potential punitive damages’’ [internal quotation

marks omitted]); Deposit Guaranty National Bank v. Roper, 445 U.S. 326,

334–36, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980) (appeal from denial of class

certification filed by named plaintiff who had received offer of judgment

for maximum amount of individual damages permitted under federal law);

Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.

Ct. 860, 83 L. Ed. 1263 (1939) (judgment for defendant declaring patent

valid, but not infringed).

8 This is not to say that we should completely eschew the opportunity to

scrutinize first time in-court identifications, which are inherently suggestive

to the point of troubling in many cases. See, e.g., State v. Nelson, 4 Conn.

App. 514, 516–17, 495 A.2d 298 (1985) (rejecting claim that ‘‘in-court identification was impermissibly suggestive since the defendant was the only black

male present in the courtroom’’ because it was otherwise reliable). Rather

than encroach on the authority that we share with the United States Supreme

Court, I would consider utilizing our supervisory authority over the administration of justice, particularly in cases such as this one wherein reversal is

not required and we are simply setting prophylactic rules to promote the

fairness of future proceedings. See State v. Carrion, 313 Conn. 823, 851–52,

100 A.3d 361 (2014); accord State v. Ledbetter, 275 Conn. 534, 578–79, 881

A.2d 290 (2005) (utilizing supervisory authority to require specific jury

instruction concerning certain risks of misidentification that are inherent

in eyewitness identification evidence), cert. denied, 547 U.S. 1082, 126 S.

Ct. 1798, 164 L. Ed. 2d 537 (2006); cf. State v. Rose, 305 Conn. 594, 605–606,

46 A.3d 146 (2012) (declining to consider whether it is structural constitutional error to require defendant to stand trial in identifiable prison clothing

after resolving case under supervisory authority).