****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subjectto modification andtechnical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or ConnecticutAppellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and inthe Connecticut LawJournal andboundvolumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

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. DICKSON—THIRD CONCURRENCE ROBINSON, J., concurring. Isharethemajority’s concern aboutthe inherentlysuggestive nature offirsttime in-court identifications at criminal trials.1 I am, however, concerned about the majority’s election to decide the merits ofthe 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 [byone ofthevictims] wasimproperlyadmitted,’’ but nevertheless ‘‘conclude[s] that any due process violation was harmless beyond a reasonable doubt.’’ Given this conclusion, I believe that parts I throughIVofthemajorityopinionappeartobeinconsistent 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 particularlytroublesome because the state’s ultimate victory in this appeal renders the majority’s analysis of
a complex and controversial issue of federal constitutional lawvirtuallyunreviewable underthe ‘‘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 thejudgment 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 abasicjudicial dutytoavoiddecidingaconstitutionalissueifanonconstitutional ground exists that will dispose of the case.

. . . The best teaching of this [c]ourt’s experience admonishes us notto entertain constitutionalquestions in advance of the strictest necessity.’’ (Citations omitted; internal quotation marks omitted.) Moorev. 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); RescueArmy v. Municipal Court, 331 U.S. 549, 568–74, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947);Ashwander

v. Tennessee ValleyAuthority, 297 U.S. 288, 346–47, 56 S. Ct. 466, 80L. 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 ofconstitutional avoidance as ‘‘more deeplyrootedthan any other in the process of constitutional adjudication

. . . .’’ (Internal quotation marks omitted.) Rescue Army v. Municipal Court, supra, 570 n.34.
This courtoftenappliesthe doctrine ofconstitutional 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. ‘‘Undersuchcircumstances, itwould [notbeanefficient
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 ofdrugs from a closet nearwhere he was arrested under the fourth amendment to the United States constitution. See id., 96–98 (noting questions
over scope ofArizona 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’’amongthefederalcourts,thiscourt‘‘conclude[d] that the present case does not require us to weigh in
on this debate. Even if we assume, without deciding, thatthe facts andthe law shouldhave ledthe trial court to suppress the evidence seized from the closet, we are fully convinced that any improper admission of the evidence isharmlessbeyondareasonable doubtinlight 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, inStatev. Artis, 314 Conn. 131, 145, 101 A.3d 915 (2014), this court declined to consider a constitutionalchallengetothereliabilityofan out-of-courtidentification that the state had conceded ‘‘was unnecessarilysuggestive,’’because, ‘‘evenif[the] identification testimony should have been suppressed, the state’suse ofthattestimonyis subjectto 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], andconcluding that use ofunreliable 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 ofconstitutional avoidance, as exemplified by
ourrecentdecisionsinArtis andJordan, andnotweigh 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 ofrestraint is the fact that
we alreadyhave acontrollingprecedent, Statev. 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. Thatdoctrine ‘‘counselsthatacourtshouldnotoverrule its earlierdecisions unless the most cogentreasons 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 ofthenotionthatdecisionmaking consistency itself has normative value.’’ (Internal quotation marks omitted.) State v. Artis, supra, 314 Conn. 146.
The majority, however, supports its decision to overruleSmith andimpose aconstitutionallybasedprophylactic 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 constitutionalissue.5 Seefootnote 11 ofthe 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 ofthe 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 notprecluded 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 finaljudgment in the petitioning party’s favor.’’ Id., 704. The court, ‘‘therefore [has] adhered with some rigor to the principlethat [t]his [c]ourtreviewsjudgments, notstatements 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 ofcertiorari) (‘‘althoughthe 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 appealbyapartyonanissue astowhichheprevailed’’). ‘‘On the few occasions when we have departed from that principle, we have pointed to apolicy reaso[n]

. . . ofsufficient 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 UnitedStatesSupreme Court’sreviewabilityprecedents 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 ‘‘grantedthe [s]tate’spetitionforcertiorari to decide whether [the] respondent retained an expectation of privacy in a bag that he placed in the communaltrashbinofamulti-unitapartmentbuilding,’’ 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 trashbin searchto supportprobable cause forthe challenged warrant. Id., 308–11. Ultimately, the United States Supreme Court dismissed the appeal as improvidentlygranted, reasoningthatthechallenged‘‘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] reachedits decisionthrough analysis differentthanthis [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 partyforpurposes of this [c]ourt’s review.’’ (Emphasis added.) Id., 311. Rooney suggests, then, that it is extraordinarily unlikely that the Supreme Court would grant certiorarito consider any challenge by the state to the majority’s resolution ofthe merits ofthe 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 constitutionalissuepresentedbythemerits ofthe 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 inquestion onthe ground ofitsbeingrepugnantto the Constitution, treaties,

or laws ofthe United States, or where any title, right, privilege, or immunity isspeciallysetup orclaimedunderthe Constitutionorthetreatiesorstatutes of, or any commission held orauthority exercised under, the United States.’’

3 Other similar examples of constitutional avoidance abound in ourjurisprudence. 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 improprietywas harmless beyond areasonable doubt because ample evidence existed to support the trial court’s probable cause determination’’); Statev.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, overwhetherthe United States Supreme Courtitselfhasthe 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 thatthis court shares the interpretive prerogative to articulate those prophylactic rules that it deems mandated by specific federal constitutional provisions, solongasthoserulesarenotinconsistentwithpreviousdecisions 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 imposingthem’’ [emphasis omitted]); Statev. Ledbetter, 275 Conn. 534, 559–60, 881 A.2d 290 (2005) (stating that ‘‘[w]e lack the authority to replace the [factors set forth inNeil 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 ofadditional 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 ajudgment 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 reliefand cannot appeal from it.

. . . The rule is one offederal appellate practice, however, derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source inthejurisdictional limitations of [article three ofthe 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 ofqualified 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 onlyblack male present in the courtroom’’ because it was otherwise reliable). Rather thanencroachonthe authoritythatwe sharewiththe UnitedStates Supreme Court, I would considerutilizing oursupervisory authority overthe administration ofjustice, particularly in cases such as this one wherein reversal is not required and we are simply setting prophylactic rules to promote the fairness offuture 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 errorto require defendant to stand trial in identifiable prison clothing after resolving case under supervisory authority).