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*********************************************** 
STATE OF CONNECTICUT v. DARREN

MATTHEW CROSBY

(AC 37523)

DiPentima, C. J., and Elgo and Bear, Js.

Syllabus

Convicted of the crimes of robbery in the first degree and larceny in the

third degree in connection with a 2008 bank robbery, the defendant

appealed to this court. The defendant claimed, inter alia, that his rights

under the Interstate Agreement on Detainers (§ 54-186 et seq.) were

violated as a result of the state’s delay of more than four years after a

warrant for his arrest had been issued before extraditing him to Connecticut from Massachusetts. The police in 2010 had faxed a copy of the

arrest warrant to the Massachusetts correctional facility, where the

defendant was then incarcerated, at the request of the correctional

facility. The correctional facility did not provide the defendant with the

appropriate detainer forms and later advised him to submit a request

to Connecticut authorities to lodge a detainer for his extradition. Connecticut authorities thereafter lodged a detainer in 2013, after which

the defendant was extradited to Connecticut. Held:

1. The defendant could not prevail on his claim that the trial court improperly

denied his motions to dismiss the robbery and larceny charges, which

was based on his assertion that the state’s delay in executing the arrest

warrant and extraditing him violated his due process rights and his

rights under § 54-186:

a. The trial court did not err in determining that the stated lodged the

detainer in 2013, and not in 2010, as the defendant alleged; the copy of

the arrest warrant that was faxed to Massachusetts in 2010 did not

establish the intent to lodge a detainer, as the fax did not include

language that the warrant was sent for the purpose of lodging a detainer,

Massachusetts did not consider the faxed warrant to be a detainer, and

the defendant was informed multiple times prior to 2013 that a detainer

had not been lodged, and the defendant’s claim that his rights under

§ 54-186 were violated was unavailing, as the defendant did not analyze

his claim that the alleged failure to comply with the requirements of

§ 54-186 resulted in a presumption that he was prejudiced, custodial state

delays do not automatically require the dismissal of criminal charges

in the demanding state, and the defendant failed to demonstrate that

any delay was unjustifiable or that he was prejudiced thereby.

b. The defendant could not prevail on his claim that his rights to due

process were violated as a result of the state’s delay in lodging the

detainer, which he claimed had an impact on the memory of eyewitnesses at trial, thereby resulting in substantial prejudice to him, he

having failed to demonstrate that the state’s alleged delay in executing

the warrant against him resulted in actual, substantial prejudice to him; a

general claim of weakened witness memory was insufficient to establish

prejudice, any defect in the memory of the state’s primary witness

prejudiced the state and worked to the defendant’s advantage, as his

cross-examination of her was effective at exposing her memory gaps

and she testified on direct examination by the state that she could not

recall the events in question, and the prejudice that the defendant alleged

pertained to concerns that are generally protected by the applicable

statute of limitations.

2. The defendant’s claim that the trial court improperly denied his motion

to suppress two eyewitness identifications of him that were made from

a police photographic array was unavailing: the identification procedure

that the police used was not unnecessarily suggestive, as the photographs in the array were not too dissimilar from the photograph of the

defendant, the defendant was not pictured in apparent prison garb, the

absence of the use of a sequential, double-blind photographic array,

which was not required in 2009, did not render the identification procedure unnecessarily suggestive, the witnesses were not told that a known

suspect was in the array, and neither eyewitness was presented with

multiple arrays repeating the suspect’s photograph; moreover, even if
the photographic array was unduly suggestive, the identifications were

reliable under the totality of the circumstances, as they were made close

in time to the robbery by witnesses who saw the robber up close in a

well lit room and were 100 percent certain that he was the perpetrator

when they identified him in the array, and the state’s primary witness

accurately described the defendant in a sworn statement that she had

given to the police.

3. The defendant could not prevail on his claim that he was denied a fair

trial because the trial court’s jury instruction on identification failed to

explain certain factors that negatively impact identifications made by

witnesses, and excluded instructions necessary to assist the jury in

assessing the accuracy of eyewitness perception and credibility: there

were minimal differences between the defendant’s request to charge

and the instruction given by the court, which included, in substance,

the defendant’s requested instructions regarding the use of a doubleblind identification procedure and the impact of the passage of time on

memory, the court did not err in omitting the defendant’s request for

an instruction on unconscious transference, as there was no evidence

to establish that unconscious transference could be an issue for the

jury to consider and the defendant provided no authority that such an

instruction was required, nor did he offer an expert witness to testify

at trial about unconscious transference, and the court’s instructions

were neither overbroad nor overgeneralized, but were correct in law,

adapted to the issue of eyewitness identification and sufficient to guide

the jury, as the court, in its discretion, did not need to tailor its charge

to the precise letter of the defendant’s request.

Argued November 27, 2017—officially released June 5, 2018

Procedural History

Substitute information charging the defendant with

the crimes of robbery in the first degree and larceny

in the third degree, brought to the Superior Court in

the judicial district of Hartford and tried to the jury

before Mullarkey, J.; thereafter, the court denied the

defendant’s motion to suppress certain evidence; verdict of guilty; subsequently, the court denied the defendant’s motions to dismiss; judgment of guilty, from

which the defendant appealed to this court; thereafter,

the court, Hon. Edward J. Mullarkey, judge trial referee, issued an articulation of its decision. Affirmed.

Alec Gulash, certified legal intern, with whom was

James B. Streeto, senior assistant public defender, for

the appellant (defendant).

Harry Weller, senior assistant state’s attorney, with

whom were Elizabeth S. Tanaka, assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney,

for the appellee (state).
Opinion

BEAR, J. The defendant, Darren Matthew Crosby,

appeals from the judgment of conviction, rendered after

a jury trial, of robbery in the first degree in violation

of General Statutes § 53a-134 (a) (4)1 and larceny in the

third degree in violation of General Statutes (Rev. to

2007) § 53a-124 (a) (2).2 On appeal, the defendant claims

that the trial court erred in denying his motions to

dismiss and his motion to suppress, and improperly

concluded that (1) the state and the Massachusetts

Department of Correction did not violate his rights

under article IV, § 2, clause 2, of the United States constitution and the Interstate Agreement on Detainers

(IAD), General Statutes § 54-186 et seq.; (2) the state’s

delay in executing an arrest warrant against him did

not violate his due process rights; (3) the witnesses’

identification of him from a photographic array was not

the product of an unreliable identifiable procedure; and

(4) the jury charge on eyewitness identification was

sufficient. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. On December 18, 2008, at approximately 1:44

p.m., a robbery took place at the Webster Bank in

Enfield. The perpetrator of the robbery was described

as a tall black male, clean cut, with an athletic build,

and wearing a black hooded type jacket, eyeglasses, a

white Red Sox ball cap with a black brim, and black

gloves with a Cincinnati style ‘‘C’’ on the backs. Suzanne

McVey, a bank teller, acknowledged the man’s presence

while she assisted another customer and told him that

she would be with him shortly. When called forward

to the teller window, the man approached McVey, mumbled something inaudible, and handed her a note, which

stated, ‘‘this [is] a robbery, give [me] all [the] fifties and

hundreds, and . . . [I have] a gun.’’ McVey complied

with the demand and gave the man cash from her

drawer, which later was determined to total $1730. After

the man left the bank, McVey informed the bank manager, Kathleen Lee, that she had just been robbed. Lee

had been standing behind the teller line, about a foot

and one-half from McVey, during the robbery. In accordance with bank procedure, the doors of the bank were

locked to prevent the perpetrator from returning, and

Lee called 911.

Detective Michael Bailey of the Enfield Police Department arrived at the bank at about 2 p.m., approximately

fifteen minutes after the robbery. Lee assisted Bailey

in reviewing the bank’s surveillance footage. Multiple

images of the perpetrator were captured by the bank’s

security camera. Detective David Thomas of the Enfield

Police Department also assisted with the investigation

of the robbery. After arriving at the bank, Thomas took

a sworn statement from McVey, in which she described

the perpetrator as a ‘‘[b]lack male, six feet to six feet,
five inches, about thirty years old, thin to a medium

build, well groomed, no facial hair . . . . Wearing a

white baseball type cap possibly with a Nike logo . . .

dark-rimmed regular eyeglasses, black fleece pullover

and black pants.’’ No written statement was taken from

any other witness.

Detective William Cooper of the Enfield Police

Department, who also responded to the bank on the

day of the robbery, was assigned as the case officer for

the investigation. On February 3, 2009, Cooper went to

the bank to present a photographic array to the witnesses to the robbery. McVey and Lee viewed the photographic array separately, and each identified the

defendant as the perpetrator of the robbery. An arrest

warrant for the defendant, charging him with larceny

in the third degree in violation of § 53a-124 (a) (2), and

robbery in the first degree in violation of § 53a-134 (a)

(4), was issued on February 18, 2009. The defendant was

taken into custody by the Enfield police on November

6, 2013.

On April 21, 2014, the defendant filed a motion to

dismiss and an accompanying memorandum of law,

asserting, inter alia, that the state’s unreasonable and

unjustifiable delay in executing the arrest warrant violated his rights under the sixth and fourteenth amendments to the United States constitution, and article first,

§ 8, of the Connecticut constitution.3 Also on April 21,

2014, the defendant filed a motion to suppress the witnesses’ identifications of him. Evidentiary hearings on

the motion to dismiss and motion to suppress took

place on April 24 and 25, 2014. On April 28, 2014, the

court denied the defendant’s motion to suppress the

witnesses’ identifications. The court did not render a

decision on the defendant’s motion to dismiss prior

to trial.

Following a jury trial, on May 5, 2014, the defendant

was found guilty of robbery in the first degree in violation of § 53a-134 (a) (4) and larceny in the third degree in

violation of § 53a-124 (a) (2). On June 18, 2014, another

hearing was held on the defendant’s motion to dismiss.

On July 1, 2014, the defendant filed a supplemental

memorandum of law in support of his motion to dismiss,

and he also filed a second motion to dismiss and supporting memorandum of law asserting a violation of his

rights under the IAD. On July 9, 2014, the state filed an

opposition to the defendant’s second motion to dismiss.

On August 13, 2014, the court denied the defendant’s

motions to dismiss. On August 15, 2014, the court sentenced the defendant to a total effective term of five

years imprisonment, with five years of special parole,

to run consecutively with sentences pursuant to which

he was incarcerated in Massachusetts. This appeal followed. Additional facts and procedural history will be

set forth as necessary.

I
The defendant first claims that the court erred in

denying his motions to dismiss and improperly concluded that (1) the state and the Massachusetts Department of Correction did not violate his rights under

article IV, § 2, clause 2, of the United States constitution

and the IAD, § 54-186; and (2) the state’s delay in executing an arrest warrant against him did not violate his

due process rights. We are not persuaded.

The following additional facts, as set forth in the

court’s memorandum of decision and otherwise contained in the record, and procedural history are relevant

to these claims. On February 18, 2009, a warrant was

issued for the defendant’s arrest in connection with the

December 18, 2008 robbery. At that time, the defendant

remained incarcerated in Massachusetts for multiple

bank robberies committed in that state.4 On July 9, 2010,

Enfield Police Detective Willie Pedemonti and James

Howard, an inspector with the Hartford state’s attorney’s office, discussed, through facsimile transmissions, authorization to extradite the defendant from

Massachusetts to Connecticut, and such extradition

was authorized. Extradition, however, was not pursued

at that time.

On September 1, 2010, the Enfield Police Department

received a telephone request from ‘‘Rafael’’ of the MCICedar Junction correctional facility at South Walpole

in Massachusetts, for the defendant’s warrant. The telephone call was followed by a facsimile transmission

from the MCI-Cedar Junction records department,

requesting a copy of the warrant for the defendant’s

arrest ‘‘[i]n order to be able to initiate the IAD process.’’

In response to the request, Stephanie ‘‘Dee’’ Beninato,

the records clerk for the Enfield Police Department,

faxed a copy of the warrant that same day. It is undisputed that Massachusetts did not treat the faxed warrant as a detainer, and therefore, it did not provide the

defendant with IAD forms at that time.

On or about October 13, 2011, in response to an

inquiry by the defendant, the Massachusetts Department of Correction advised the defendant that an IAD

detainer had not been lodged, and that he should submit

a written request to the state to lodge a detainer. On

or about December 19, 2011, the defendant sent a

‘‘Notice of Whereabouts & Demand for Speedy Trial’’ to

the geographical area number thirteen court in Enfield.

Maria Reed-Cook, deputy clerk for that court, advised

the defendant in a letter dated December 19, 2011,

instead to contact the state’s attorney’s office in Hartford. On or about April 30, 2012, the defendant sent a

‘‘Notice of Whereabouts and Demand for a Speedy

Trial’’ and accompanying letter to Howard at the Hartford state’s attorney’s office, advising him of his location of incarceration and his efforts to have the arrest

warrant served, and asserting his right to a speedy trial.5

On May 2, 2012, Howard responded to the defendant
and notified him that, as an incarcerated prisoner in

another state, his speedy trial request did not apply

because he was incarcerated in another state, but that

he should contact his prison counselor to assist him in

making the necessary arrangements to be brought to

Connecticut under the provisions of the IAD.

On or about January 28, 2013, the Massachusetts

Department of Correction Souza-Baranowski Correctional Center records manager, Jamie Lewis, notified

the defendant in a written letter that ‘‘[o]ur records

. . . indicate that you have been previously advised

that in order to begin the IAD process a detainer must

be lodged by the requesting state. A detainer has not

been lodged. You have previously been advised that

you must write to [Connecticut] and request that a

detainer be lodged. Once a detainer is received the

IAD process may be initiated.’’ On February 1, 2013, in

response to another inquiry from the defendant, Lewis

wrote to the defendant to explain that ‘‘speedy trial

requests are for same state open legal issues. For out

of state open detainers IADs are filed. As previously

indicated to you, there is no detainer filed therefore

IADs do not currently apply . . . .’’ The defendant then

made a written inquiry, dated February 3, 2013, to the

geographical area number thirteen court in Enfield. On

February 6, 2013, Reed-Cook responded to the defendant, informing him again that ‘‘[i]f the warrant to which

you refer has not been served on you by an arresting

agency, the clerk’s office is not the appropriate office

to contact. [The clerk’s office] only handles matters

after an arrest has been made. You must contact the

[Hartford state’s attorney office], which handles the

lodging of detainers.’’

On May 22, 2013, Pedemonti sent a letter to Kathy

Guenther at the Souza-Baranowski Correctional Center,

which stated: ‘‘The Enfield Police Department currently

holds an active arrest warrant for [the defendant] . . .

for Robbery 1st and Larceny 3rd. Both are felonies in

the [s]tate of Connecticut. Extradition has been authorized by our State’s Attorney’s Office and the Enfield

Police Department will extradite.’’ After receiving the

letter, Massachusetts asked the Enfield Police Department to clarify whether Connecticut was lodging a

detainer for IAD purposes. On July 23, 2013, the defendant was notified that a detainer had been lodged

against him, and he was provided with the necessary

IAD forms, which he signed. On August 6, 2013, the

Hartford state’s attorney’s office received the IAD

forms. On November 6, 2013, Enfield police arrested

the defendant, and he was transported from Massachusetts to Connecticut.

On April 21, 2014, the defendant filed a motion to

dismiss the pending Connecticut charges. During the

April 25, 2014 hearing on the motion to dismiss, Carl

J. Sferrazza, the police chief for the Enfield Police
Department, testified about the general procedure for

executing a detainer—that when a warrant is secured

for the arrest of a person located out of state, the process is ‘‘normally [to] send a copy of that warrant to

the home state or the jail where he’s being held so they

know that he’s wanted by us; that would be our normal

procedure.’’ Sferrazza testified that he did not believe

there was any written procedure, but that ‘‘our practice

has been, we e-mail or we fax the holding facility our

warrant so they’re on record that the person is wanted

by us.’’ Defense counsel then asked whether Sferrazza

was aware that ‘‘the process can be accelerated either

through extradition or what’s called the interstate

agreement on [detainers] act,’’ to which Sferrazza

explained that ‘‘we work hand in hand with the state’s

attorney’s office to get these things done. I, personally,

in my career have never been involved in that portion

of it, but we work through the state’s attorney’s office

to get these things done.’’

At the April 25, 2014 hearing, Beninato, the records

clerk for the Enfield Police Department, testified that

when she faxed the arrest warrant to the Massachusetts

correctional facility, she was merely responding to the

request from Rafael, that she was not responsible for

lodging detainers, and that lodging a detainer is not

something she would be asked to do as part of her

duties as records clerk. She was asked whether she

attached anything to the warrant to show that the state

was ‘‘making a demand for the defendant’s return to

. . . Connecticut,’’ to which she responded, ‘‘no.’’

‘‘We initially address the standard of review for a trial

court’s denial of a motion to dismiss. Because a motion

to dismiss effectively challenges the jurisdiction of the

court, asserting that the state, as a matter of law and

fact, cannot state a proper cause of action against the

defendant, our review of the court’s legal conclusions

and resulting denial of the defendant’s motion to dismiss is de novo. . . . Factual findings underlying the

court’s decision, however, will not be disturbed unless

they are clearly erroneous. . . . The applicable legal

standard of review for the denial of a motion to dismiss,

therefore, generally turns on whether the appellant

seeks to challenge the legal conclusions of the trial

court or its factual determinations.’’ (Citation omitted;

internal quotation marks omitted.) State v. Samuel M.,

323 Conn. 785, 794–95, 151 A.3d 815 (2016).

A

We first address the defendant’s claim that, because

the state allegedly lodged a detainer against him on

September 1, 2010, but he was not extradited from

Massachusetts until 2013, he was entitled to dismissal

of the charges against him. Specifically, the defendant

contends that his rights were violated when the Massachusetts Department of Correction failed to provide

him with the necessary IAD forms after Connecticut
lodged a detainer and misinformed him of his rights, and

that Connecticut is vicariously liable for Massachusetts’

actions. We are not persuaded.

We begin our analysis by setting forth our standard

of review and the relevant legal principles governing

the defendant’s claim. ‘‘The IAD is a congressionally

sanctioned interstate compact the interpretation of

which presents a question of federal law. . . . Our

standard of review of the [defendant’s] claim is plenary.

We must decide whether the court’s conclusion is

legally and logically correct and find[s] support in the

facts that appear in the record.’’ (Citations omitted;

internal quotation marks omitted.) State v. Taylor, 63

Conn. App. 386, 411–12, 776 A.2d 1154, cert. denied,

257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978,

122 S. Ct. 406, 151 L. Ed. 2d 308 (2001).

‘‘The purpose of the IAD is to establish a cooperative

procedure for disposition of charges against a prisoner

in one state who is wanted to respond to untried criminal charges in another state. . . . The IAD is activated

when the state seeking the prisoner (the receiving state)

files written notice that he is wanted to answer charges

in that state. . . . This notice, referred to as a detainer,

is simply a notification filed with the institution in which

the prisoner is serving a sentence, advising that he is

wanted to face pending criminal charges in another

jurisdiction.’’ (Citations omitted; internal quotation

marks omitted.) Id., 412.

‘‘After lodging the detainer an appropriate officer of

the demanding state may make a written request for

temporary custody of the prisoner for the purpose of

trying these indictments, informations, or complaints

that form the basis of the detainer. . . . Unless the

governor of the asylum state disapproves the request

for temporary custody within thirty days of its filing,

the demanding state shall be entitled to have a prisoner

against whom [it] has lodged a detainer. . . . Once a

detainer has been filed against a prisoner, custodial

officials must promptly notify the prisoner of the source

and contents of the detainer and of the prisoner’s right

to request a final disposition of the foreign charge; General Statutes § 54-186, art. III (c); the prisoner, upon

notifying prosecuting officials in the demanding state

of his or her request for a final disposition of the charge,

must be brought to trial within 180 days of the request;

General Statutes § 54-186, art. III (a).’’ (Citations omitted; internal quotation marks omitted.)Remick v. Lopes,

203 Conn. 494, 502–503, 525 A.2d 502 (1987).

‘‘The provisions of the [IAD] are activated only when

the receiving or charging state lodges with the sending

or asylum state a detainer based on a pending indictment, information or complaint.’’ (Internal quotation

marks omitted.) Id., 501. Accordingly, the state was not

required to comply with the provisions of the IAD until

it lodged a detainer against the defendant. See United
States v. Mauro, 436 U.S. 340, 361, 98 S. Ct. 1834, 56 L.

Ed. 2d 329 (1978) (‘‘[b]ecause . . . the [g]overnment

never filed a detainer against [the defendants], the [IAD]

never became applicable and the United States was

never bound by its provisions’’). Therefore, we first

must determine when the state lodged a detainer against

the defendant before we address his claim that his rights

under the IAD were violated.

The defendant argues that the court erred in

determining that a detainer was lodged against him in

May, 2013. He contends that a detainer instead was

lodged against him when the Enfield Police Department

faxed a copy of his arrest warrant to Massachusetts on

September 1, 2010. We disagree.

A detainer is ‘‘a notification filed with the institution

in which a prisoner is serving a sentence, advising that

he is wanted to face pending criminal charges in another

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

v. Milton, 26 Conn. App. 698, 708, 603 A.2d 750, appeal

dismissed, 224 Conn. 163, 617 A.2d 460 (1992). ‘‘A

detainer . . . need not take any particular form; its

purpose is to provide written notice to prison authorities . . . that charges are pending against the prisoner.

. . . Thus, a letter from a police department to prison

officials . . . a letter from the clerk of court to prison

officials . . . and a letter from a prosecuting attorney

to prison officials . . . have all been held to fall within

the IAD definition of a detainer.’’ (Citations omitted;

internal quotation marks omitted.) Id., 708–709.

In the present case, the court found that the state

did not lodge a detainer on September 1, 2010, because

‘‘it cannot be ascertained whether [state] officials

requested that Massachusetts hold the defendant or

notify [the state] when the defendant’s release was

imminent’’ through the mere sending of the faxed warrant. Importantly, a detainer is initiated by the receiving

state (Connecticut), not by the sending state (Massachusetts). See State v. Taylor, supra, 63 Conn. App. 412.

Thus, the fact that the Enfield records clerk faxed a

copy of the arrest warrant in response to a request for

the warrant from Massachusetts does not establish the

state’s intent to lodge a detainer. As the defendant concedes in his principal brief, ‘‘the fax sent by the Enfield

Police Department did not include language expressly

stating that the warrant was being sent for the purpose

of lodging a detainer . . . .’’ In contrast, the May 22,

2013 letter, signed by Pedemonti of the Enfield Police

Department, did indicate the state’s intent to lodge a

detainer. It provided, in relevant part: ‘‘The Enfield

Police Department currently holds an active arrest warrant for [the defendant] . . . for Robbery 1st and Larceny 3rd. Both are felonies in the [s]tate of Connecticut.

Extradition has been authorized by our State’s Attorney’s Office and the Enfield Police Department will

extradite.’’ (Emphasis added.)
The trial court also found it relevant that, although

the warrant was faxed in response to a request from

Massachusetts to do so, Massachusetts did not consider

the faxed warrant to be a detainer. The parties stipulated to the trial court that ‘‘the Massachusetts [Department of Correction] will consider a written document

as a detainer triggering the IAD process if the document

references a pending criminal charge and requests

either (a) that the criminal justice agency be notified

when the inmate’s sentence is completed or (b) that

the Massachusetts [Department of Correction] hold the

subject after his sentence is completed so that he can

be taken into custody by the receiving state.’’ Although

the May, 2013 letter satisfied these criteria, the September, 2010 fax did not.

Furthermore, the defendant was informed multiple

times prior to May, 2013, by Massachusetts correctional

employees that a detainer had not been lodged against

him. It was not until July 23, 2013, that he was notified

that a detainer had been lodged against him by the state.

On the basis of the foregoing, we conclude that the

court did not err in determining that the detainer was

lodged against the defendant in May, 2013.

We next consider whether the defendant’s rights

under the IAD were violated. The defendant claims that

‘‘Massachusetts, in [its] capacity as [agent] for [the

state], violated the IAD through inaction [and that the

state], as principal, is liable for this violation.’’ The

defendant contends that Massachusetts’ failure to recognize the state’s detainer halted the filing procedure,

and delayed the triggering of the defendant’s rights and

duties under the IAD. We are not persuaded. As set forth

previously in this opinion, the state lodged a detainer

against the defendant in May, 2013. Thus, only two

months elapsed between the detainer being lodged and

the defendant being informed in July, 2013, that the state

had lodged a detainer against him. Even if a detainer

effectively had been lodged in September, 2010, however, the defendant’s claim still would fail because he

has failed to demonstrate that any delay was unjustifiable or that he was prejudiced by any delay.

‘‘Article III of the IAD governs inmate requests for a

prompt disposition of outstanding detainers. The centerpiece of Article III is subsection (a), which states

that a prisoner shall be brought to trial within one

hundred eighty days after he shall have caused to be

delivered to the prosecuting officer and the appropriate

court of the prosecuting officer’s jurisdiction written

notice of the place of his imprisonment and his request

for a final disposition to be made of the indictment,

information or complaint . . . . Failure to comply with

Article III (a) mandates dismissal with prejudice of the

underlying charges.’’ (Citation omitted; internal quotation marks omitted.) State v. Herring, 210 Conn. 78,

85–86, 554 A.2d 686, cert. denied, 492 U.S. 912, 109
S. Ct. 3230, 106 L. Ed. 2d 579 (1989). ‘‘The remaining

provisions of Article III address the custodial state’s

duty ‘promptly’ to inform a prisoner of outstanding

detainers; General Statutes § 54-186, Article III (c); and

‘promptly’ to forward a request for prompt disposition

to the demanding state. General Statutes § 54-186, Article III (b) and (d).’’ (Footnote omitted.) State v. Herring,

supra, 86.

‘‘Although custodial state delays do not automatically

require the dismissal of criminal charges in the

demanding state, we would be remiss in our obligation

to effectuate the IAD’s purposes and principles if we

were simply to ignore such a violation. Indeed . . .

under the IAD, officials of the custodial state act as the

agents of the demanding state. . . . When, in somewhat similar circumstances, we sought to enforce a

criminal defendant’s right to have his appeal defended

by the state with due diligence . . . we found a useful

analogy in the rules that have been developed to protect

a defendant’s constitutional right to a speedy trial. So

too [a] defendant’s right to prompt IAD notification can

appropriately be protected by invoking the balancing

principles of Barker v. Wingo, 407 U.S. 514, 530, 92 S.

Ct. 2182, 33 L. Ed. 2d 101 (1972), which determine when

a deprivation of speedy trial rights requires dismissal

of criminal charges against a defendant. . . . The four

factors that form the matrix of a Barker v. Wingo [supra,

530] analysis are: the length of the delay, the reason

for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.’’ (Citations omitted.) State

v. Herring, supra, 210 Conn. 89–90. ‘‘We recognize that

these factors have no talismanic qualities but rather

must be considered together with such other circumstances as may be relevant. . . . The triggering mechanism for our consideration of the Barker factors is the

length of the delay that the defendant has experienced.

. . . As the tolerable length of delay may vary greatly

between cases, our inquiry into the length of the delay

is necessarily dependent upon the peculiar circumstances of the case.’’ (Citations omitted; internal quotation marks omitted.) State v. Roman, 320 Conn. 400,

418–19, 133 A.3d 441 (2016).

On appeal, the defendant fails to analyze his claim

pursuant to the Barker factors, and instead argues that

‘‘prejudice is presumed for failure to comply with IAD

regulations.’’ As the state asserts, however, the defendant’s argument conflicts with established case law,

which explicitly states that ‘‘custodial state delays do

not automatically require the dismissal of criminal

charges in the demanding state . . . .’’ State v. Herring,

supra, 210 Conn. 89. We agree with the state and, thus,

reject the defendant’s argument that prejudice is presumed by ‘‘a delay of this magnitude.’’ Rather, a claim of

prejudice resulting from the delay is properly analyzed

pursuant to the four Barker factors.
Utilizing the Barker factors, the trial court in the

present case determined that, as to the first factor, the

length of the delay between the defendant’s sentencing

in Massachusetts on July 23, 2010, and his receipt of

the IAD forms on August, 26, 2013, was ‘‘sufficient to

trigger an application of the remaining three factors.’’6

As to the second factor, the court concluded that ‘‘much

of the delay seems to be attributable to a misunderstanding, or miscommunication, on the part of officials

in both states concerning whether an IAD detainer had

been lodged and the proper way in which to initiate

the lodging of a detainer’’ but that ‘‘this factor cuts

slightly in favor of the defendant.’’ As to the third factor,

the court noted that the defendant made at least one

attempt to assert his right to a speedy trial by sending

a letter to Howard, but there were also periods of inactivity in asserting that right. Finally, as to the fourth

factor, the court concluded that the defendant failed

to establish prejudice.7 The defendant has failed to demonstrate on appeal that any delay was unjustifiable or

that he was prejudiced by any delay. Accordingly, we

conclude that the court properly denied the defendant’s

motion to dismiss.

B

We next address the defendant’s claim that the court

erroneously denied his motion to dismiss because his

due process rights were violated by the state’s ‘‘unreasonable and unjustifiable delay’’ in executing the arrest

warrant against him, extraditing him four years after

the warrant was issued. The defendant contends that

the unjustifiable delay had an impact on the memory of

the eyewitnesses, which resulted in actual, substantial

prejudice to him. We are not persuaded.

‘‘The role of due process protections with respect to

pre-accusation delay has been characterized as a limited

one. . . . [T]he Due Process Clause does not permit

courts to abort criminal prosecutions simply because

they disagree with a prosecutor’s judgment as to when

to seek an indictment.’’ (Internal quotation marks omitted.) Slater v. Commissioner of Correction, 158 Conn.

App. 522, 536, 119 A.3d 1221, cert. denied, 319 Conn. 932,

125 A.3d 206 (2015). ‘‘This court need only determine

whether the action complained of . . . violates those

fundamental conceptions of justice which lie at the base

of our civil and political institutions . . . and which

define the community’s sense of fair play and decency

. . . . The due process clause has not replaced the

applicable statute of limitations . . . [as] . . . the primary guarantee against bringing overly stale criminal

charges.’’ (Citations omitted; internal quotation marks

omitted.) State v. John, 210 Conn. 652, 685, 557 A.2d

93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L.

Ed. 2d 50 (1989); see also Slater v. Commissioner of

Correction, supra, 536. ‘‘In order to establish a due

process violation because of pre-accusation delay, the
defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for

the delay were wholly unjustifiable, as where the state

seeks to gain a tactical advantage over the defendant.

. . . [P]roof of prejudice is generally a necessary but

not sufficient element of a due process claim, and . . .

the due process inquiry must consider the reasons for

the delay as well as the prejudice to the accused.’’ (Internal quotation marks omitted.) State v. John, supra, 685–

86. ‘‘Mere allegations of potential prejudice or dimmed

memory are insufficient.’’ State v. Hanna, 19 Conn. App.

277, 278, 562 A.2d 549 (1989).

In the present case, the arrest warrant for the defendant for the December 18, 2008 robbery was issued

on February 18, 2009. The defendant was taken into

custody and transported to Connecticut from Massachusetts by the Enfield Police Department on November 6, 2013. Although approximately four years and

eleven months passed from the date of the robbery to

the execution of the arrest warrant, and approximately

four years and nine months passed from the date of

the arrest warrant to its execution, those periods of

time standing alone do not require a finding of a due

process violation. See State v. Haynes, 8 Conn. App.

361, 364, 513 A.2d 160 (1986) (‘‘A delay of nearly twentyone months between the date of the crime and the

date of the arrest has been held insufficient to dismiss

charges against a defendant, absent a showing of any

specific prejudice to the defendant; State v. Aspinall,

6 Conn. App. 546, 549, 506 A.2d 1063 [1986]; as has a

delay of more than five years. State v. Littlejohn, [199

Conn. 631, 646, 508 A.2d 1376 (1986)].’’). The defendant

must establish that the passage of time was wholly

unjustifiable and caused him actual, substantial

prejudice.8

The defendant claims that the delay resulted in actual,

substantial prejudice because ‘‘[a]t trial, the state’s primary witness, McVey, revealed that she had no recollection of the suspect or of her conversations with

investigating officers in which she described that suspect. McVey’s lack of memory deprived defense counsel

of the chance to effectively cross-examine [her] . . .

regarding her identification.’’ We note, however, that

‘‘[a] claim of general weakening of witnesses’ memories,

relying on the simple passage of time, cannot, without

a more specific showing, be said to prejudice the defendant.’’ (Internal quotation marks omitted.) State v.

Lacks, 58 Conn. App. 412, 420, 755 A.2d 254, cert. denied,

254 Conn. 919, 759 A.2d 1026 (2000); see also State v.

Hanna, supra, 19 Conn. App. 278. Furthermore, because

McVey was the state’s primary witness, any defect in

her memory prejudiced the state, not the defense. See

State v. Morrill, 197 Conn. 507, 528, 498 A.2d 76 (1985).

Indeed, ‘‘[a]s the time between the commission of the

crime and trial lengthens, witnesses may become

unavailable or their memories may fade. If the witnesses
support the prosecution, its case will be weakened,

sometimes seriously so. And it is the prosecution which

carries the burden of proof.’’ Barker v. Wingo, supra,

407 U.S. 521. As the state points out in its brief, and the

record supports, the delay worked to the defendant’s

advantage, as the defendant’s cross-examination of

McVey was effective at exposing her memory gaps.

McVey’s responses to many questions on both direct

examination and cross-examination was that she could

not recall the events in question.9

Additionally, as the trial court pointed out in its memorandum of decision, the defendant’s claimed prejudice

pertains to concerns generally protected by the applicable statute of limitations.10 We reiterate that ‘‘[t]he due

process clause has not replaced the applicable statute

of limitations . . . [as] . . . the primary guarantee

against bringing overly stale criminal charges.’’ (Internal quotation marks omitted.) State v. John, supra, 210

Conn. 685.

The defendant has not demonstrated that the state’s

alleged delay in executing the warrant against him

resulted in actual, substantial prejudice to him.11 See

id., 686 (‘‘we cannot find in this record that the defendants have shown, as they must, actual substantial prejudice, such as the death or disappearance of a vital

defense witness’’ [internal quotation marks omitted]).

Accordingly, the trial court did not err in denying the

defendant’s motion to dismiss.

II

The defendant next claims that the court erred in

denying his motion to suppress and improperly concluded that the witnesses’ identification of him from

the suspect photographic array was not the product of

an unreliable identification procedure. Specifically, the

defendant claims that the photographic array was

unnecessarily suggestive and unreliable because ‘‘(1)

the ‘filler’ photographs12 were too dissimilar from the

defendant; (2) the defendant was the only individual

pictured in apparent prison garb; (3) the array was

simultaneous, as opposed to sequential; and (4) the

police department did not use a ‘double-blind’ identification procedure.’’ (Footnote added.) We are not persuaded.

The following additional facts are relevant to this

claim. On February 3, 2009, Cooper separately presented to McVey and Lee a photographic array created

by Massachusetts State Police Trooper Kevin O’Toole,

which contained eight photographs of males of the same

race and with similar features. Prior to presenting the

array to each witness, Cooper read the following

required warning: ‘‘You will be asked to look at a group

of photographs. The fact that the photographs are

shown to you should not influence your [judgment].

You should not conclude or guess that the photographs
contain the picture of the person who committed the

crime. You are not obligated to identify anyone. It is just

as important to free innocent persons from suspicion

as to identify guilty parties. Please do not discuss the

case with other witnesses or indicate in any way that

you have identified someone.’’ Lee and McVey each

signed the page from which the warning was read to

them, acknowledging that they understood the warning.

After viewing the array, each witness selected photograph number three, the photograph of the defendant,

and identified him as the perpetrator of the December

18, 2008 robbery at the bank.

On April 21, 2014, the defendant filed a motion to

suppress the witnesses’ identification of him on the

ground that the photographic array was unnecessarily

suggestive and unreliable. A hearing on the motion to

suppress took place on April 25, 2014. At the hearing,

the two witnesses, McVey and Lee, testified. Lee testified that she ‘‘was 100 percent certain’’ of her identification of the defendant as the perpetrator of the robbery

when Cooper presented her with the photographic array

on February 3, 2009. Lee also testified that her attention

was drawn to the defendant for ‘‘two reasons; the first

reason was, I didn’t recognize him as a depositor, and

people that don’t deposit with us are sales opportunities

and we really [have] a strong sales culture, so that was

one thing; that’s what I’m trained to do. And the other

reason why he caught my attention was, he looked just

like my husband, and I took a second look and that’s

why he caught my attention, those two reasons. . . .

My husband wears similar glasses, and he had at the

time the same mustache and the same skin tone and a

very similar build.’’ Defense counsel asked Lee whether

she saw any significance in the defendant’s clothing, to

which she stated that she did not.

McVey testified at the hearing that she recalled

describing some of the defendant’s features to the

police, such as his clothing and his race, but that she

could not recall her description of his build or certain

facial features. McVey did testify that, at the time of

the photographic array, she was ‘‘100 percent’’ certain

of her identification of the defendant as the perpetrator

of the robbery. McVey stated that she selected the

defendant’s photograph from the array because

‘‘[s]omething just triggered a memory and it was the

correct memory. . . . [S]omething about that particular picture just brought the whole thing back.’’ Similar

to Lee, McVey testified that she saw no significance in

the defendant’s clothing.

Following the hearing, on April 28, 2014, the court

denied the defendant’s motion to suppress. Lee and

McVey both testified at trial. In response to the defendant’s motion for an articulation, the court issued a

written articulation of its decision on October 4, 2016.

‘‘Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress

is well defined. 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]here the

legal conclusions of the court are challenged, we must

determine whether they are legally and logically correct

and whether they find support in the facts set out in

the memorandum of decision . . . .’’ (Internal quotation marks omitted.) State v. Salmond, 179 Conn. App.

605, 615–16, 180 A.3d 979, cert. denied, 328 Conn. 936,

A.3d (2018). ‘‘[A] claim of an unnecessarily

suggestive pretrial identification procedure is a mixed

question of law and fact. . . . [B]ecause 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. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed

contemplates a series of factbound determinations,

which a trial court is far better equipped than this court

to make, we will not disturb the findings of the trial

court as to subordinate facts unless the record reveals

clear and manifest error.’’ (Citation omitted; internal

quotation marks omitted.) State v. Johnson, 149 Conn.

App. 816, 822, 89 A.3d 983, cert. denied, 312 Conn. 915,

93 A.3d 597 (2014). ‘‘[W]e will reverse the trial court’s

ruling [on evidence] only where there is an abuse of

discretion or where an injustice has occurred . . . and

we will indulge in every reasonable presumption in

favor of the trial court’s ruling.’’ (Internal quotation

marks omitted.) State v. Salmond, supra, 616; see also

State v. Marquez, 291 Conn. 122, 137–38, 967 A.2d 56,

cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed.

2d 163 (2009). ‘‘[I]f we find that the court incorrectly

permitted, as reliable, evidence flowing from an unreliable and unduly suggestive identification procedure,

there remains the further issue of whether the ensuing

judgment of conviction may be affirmed on the ground

that the due process violation was, nevertheless, harmless in light of all the evidence correctly adduced at

trial and untainted by the admission of an unreliable

identification.’’ (Internal quotation marks omitted.)

State v. Day, 171 Conn. App. 784, 809, 158 A.3d 323

(2017).

On appeal, the defendant claims that his due process

rights were violated by the admission of the witnesses’

identification of him at trial. ‘‘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 whether the identification was

nevertheless reliable based on examination of the total-
ity of the circumstances.’’ (Internal quotation marks

omitted.) State v. Marquez, supra, 291 Conn. 141. ‘‘The

first suggestiveness prong involves the circumstances

of the identification procedure itself . . . and the critical question is whether the procedure was conducted

in such a manner as to emphasize or highlight the individual whom the police believe is the suspect. . . . If

the trial court determines that there was no unduly

suggestive identification procedure, that is the end of

the analysis, and the identification evidence is admissible. . . . If the court finds that there was an unduly

suggestive procedure, the court goes on to address the

second reliability prong, under which the corruptive

effect of the suggestive procedure is weighed against

certain factors, such as the opportunity of the [eyewitness] to view the criminal at the time of the crime, the

[eyewitness’] degree of attention, the accuracy of [the

eyewitness’] prior description of the criminal, the level

of certainty demonstrated at the [identification] and

the time between the crime and the [identification].’’

(Citations omitted; internal quotation marks omitted.)

State v. Dickson, 322 Conn. 410, 421, 141 A.3d 810

(2016), cert. denied, U.S. , 137 S. Ct. 2263, 198

L. Ed. 2d 713 (2017). ‘‘[A]n out-of-court eyewitness identification should be excluded on the basis of the procedure used to elicit that identification only if the court

is convinced that the procedure was so suggestive and

otherwise unreliable as to give rise to a very substantial

likelihood of irreparable misidentification.’’ (Internal

quotation marks omitted.) State v. Salmond, supra, 179

Conn. App. 617.

‘‘In evaluating the [first factor concerning] suggestiveness of a photographic array, a court should look

to both the photographs themselves and the manner in

which they were presented to the identifying witness.

. . . We consider the following nonexhaustive factors

in analyzing a photographic array for unnecessary suggestiveness: (1) the degree of likeness shared by the

individuals pictured . . . (2) the number of photographs included in the array . . . (3) whether the suspect’s photograph prominently was displayed or

otherwise was highlighted in an impermissible manner

. . . (4) whether the eyewitness had been told that the

array includes a photograph of a known suspect . . .

(5) whether the eyewitness had been presented with

multiple arrays in which the photograph of one suspect

recurred repeatedly . . . and (6) whether a second

eyewitness was present during the presentation of the

array. . . . It is important to note, however, that [p]hotographs will often have distinguishing features. The

question . . . is not whether the defendant’s photograph could be distinguished from the other photographs . . . but whether the distinction made it

unnecessarily suggestive.’’ (Citations omitted; internal

quotation marks omitted.) State v. Marquez, supra, 291

Conn. 161.
In the present case, the court determined that the

identification procedure was not unnecessarily suggestive. In its written articulation of its decision denying

the defendant’s motion to suppress, the court analyzed

the photographic array pursuant to the six factors set

forth in Marquez. As to the first factor, which addresses

the degree of similarity between the individuals in the

array, the court noted that ‘‘[e]ach person is posed in

front of a solid color background which contains no

marking for height or other characteristics. Three

appear to be some shade of grey, while five, including

the defendant at number three, appear white. Each

photo appears to be of similarly aged males of the same

race with brown eyes. Seven photos, including the

defendant’s, display some facial hair. While the defendant may have been in prison garb, the defense provided

no proof of that. The defendant thoroughly examined

. . . Cooper and the two eyewitnesses on that point.

During a previous hearing on April 24, 2014, on motions

to dismiss, defense counsel made claims about Massachusetts prison garb, but provided no evidence. . . .

The tan v-necked shirt is not obvious prison garb with

numbers or lettering on it. It is not a luminous orange

or yellow color. And most importantly, this court finds

that neither eyewitness saw any significance in the

shirt’s appearance.’’ (Citation omitted.)

As to the second factor, the court noted that ‘‘the

number of photographs was the standard of eight photographs. While not presented in a sequential, doubleblind manner, these photo boards met the standards in

effect on February 3, 2009.’’ See State v. Marquez, supra,

291 Conn. 164 (‘‘the failure to use a double-blind procedure does not automatically render an identification

suspect, particularly when, as in the present case, there

is no evidence that the detectives conducting the procedure influenced the witnesses in any discernible way

prior to their making the identification’’).

As to the third factor, the court noted that ‘‘Cooper

was questioned extensively on the procedures he followed, particularly with regard to the composition and

timing of the array. Th[e] robbery [at issue in the present

case] occurred on December 18, 2008. The defendant

was arrested in Massachusetts for other robberies on

January 25, 2009. The array was shown to the two eyewitnesses on February 3, 2009. Extensive examination

of [Cooper] in several areas of his investigation included

possible third-party suspects, composition of the array

and witnesses he did not interview. He testified that he

relied more on the bank’s surveillance photos than on

witness descriptions, did not use Connecticut driver’s

license photos because they cannot be sorted by physical characteristics . . . and did not use Springfield

Police Department photos because [they] did not fit

[in] Enfield Police Department folders. . . . Instead,

[Cooper] used an array composed by . . . O’Toole of
the Massachusetts State Police . . . . The defendant’s

photo does not conflict with the statement . . . given

by . . . McVey except on facial hair, which is also worn

by six others depicted in the array. The detective gave

no feedback to either eyewitness after the positive identifications. . . . Lee’s description was that the perpetrator was African-American, wore glasses, a mustache

and a lot of clothing, and looked to be in his thirties

with an average build. While [Cooper] was asked to

speculate as to the last known mug shot of the defendant available to him, that evidence was never elicited.’’

(Citations omitted.)

As to the fourth factor, the court noted that ‘‘the

witnesses were not told that a known suspect was in

the array. In fact, each was told the opposite and given

the approved warnings to that effect . . . . Lee . . .

testified at the motion to suppress [hearing] that she

was behind the teller line when she first saw the perpetrator from a distance, whom she did not recognize as

a depositor but at first took to be her husband until

apparently dissuaded by the team logo on his [baseball]

cap. She further testified that [Cooper] showed her the

array when only they were in her office and after he

had given and she signed [the standard warning]. The

only difference between the picture and the robber was

an absence of eyeglasses. [Lee testified that she] was

‘100 [percent]’ sure of her identification. . . . McVey

testified at the hearing that she had been trained to

hand over the money and to remember the perpetrator.

She was shown a copy of the same photo array [as Lee]

and selected the defendant. While [McVey] did not recall

her level of certainty at the time of the identification,

at the hearing she was ‘100 [percent]’ sure. . . . McVey

was also given the standard warning . . . . She testified that as to photo number three in the array, ‘something just triggered a correct memory.’ ’’

As to the fifth factor, ‘‘neither eyewitness was presented with multiple arrays repeating the suspect’s

photo. Similarly, the sixth factor was not violated, as

each witness was shown the array in the presence of

. . . Cooper only in attendance.’’ Having concluded

that the identification procedure was not unnecessarily

suggestive, the court did not reach the second prong

of reliability but concluded that the month and onehalf delay ‘‘goes to the weight of the identification, not

the fairness of the procedure, and would not change

this court’s opinion even if the [reliability based] totality

of [the] circumstances prong were reached.’’

On the basis of our review of the record, we find

ample support for the court’s findings. We cannot conclude that the photographs in the array were too dissimilar. During the April 25, 2014 motion to suppress

hearing, both Lee and McVey testified that they were

‘‘100 percent’’ certain of their photographic array identification of the defendant as the perpetrator of the rob-
bery, and neither testified that they considered the

photographs to be dissimilar. The photographic array

was admitted as an exhibit, and the photographs in the

array depict similarly aged males of the same race with

brown eyes, all posed in front of a solid color background.

We are not persuaded by the defendant’s claim that,

at trial, McVey found every photograph aside from the

defendant’s ‘‘to be dissimilar from her recollection of

the suspect either because of age, face shape and/or

skin color.’’ McVey did not testify that she found the

photographs to be dissimilar. Instead, consistent with

her testimony on direct examination, McVey testified

on cross-examination that she selected the defendant’s

photograph because of his ‘‘eyes.’’13 She identified him

in the array because ‘‘[h]is eyes were what determined

it for me.’’ Although McVey agreed with defense counsel

that there were differences among the photographs, at

no point did she testify, nor was she asked to comment

on, whether she found the photographs too dissimilar.

Importantly, ‘‘[p]hotographs will often have distinguishing features. The question . . . is not whether the

defendant’s photograph could be distinguished from

the other photographs . . . but whether the distinction

made it unnecessarily suggestive.’’ (Internal quotation

marks omitted.) State v. Marquez, supra, 291 Conn. 161.

We also cannot conclude that the court erred in

determining that the defendant was not pictured in

apparent prison garb. The photograph of the defendant

in the array depicts him wearing a tan v-neck shirt that

is not bright in color or imprinted with any insignia.

Both Lee and McVey testified at the motion to suppress

hearing that they did not see any significance in the

defendant’s shirt.

Additionally, we are not persuaded by the defendant’s

argument that the absence of a sequential, double-blind

photographic array rendered the identification procedure unnecessarily suggestive.14 As the defendant concedes in his principal brief, ‘‘Cooper was not required

by statute to utilize the double-blind, sequential procedure in 2010,’’ but the defendant nevertheless argues

that ‘‘studies were already out and ongoing at that time,

which indicated that these procedures were the best

practices for law enforcement.’’ The defendant contends that ‘‘[t]he identification methods that Cooper

used . . . put [him] in a position to purposefully or

inadvertently provide confirmatory feedback that could

have influenced the witnesses’ confidence in their identifications,’’ and that ‘‘[t]his could have been avoided

by using a sequential array [and] . . . by sending

another officer to the bank.’’

Although we recognize that a sequential, double-blind

procedure now is mandated pursuant to General Statutes § 54-1p,15 it was not the required procedure in 2009,

when the photographic array was presented to the wit-
nesses in this case. See State v. Marquez, supra, 291

Conn. 164 (‘‘the failure to use a double-blind procedure

[did] not automatically render an identification suspect,

particularly when . . . there is no evidence that the

[police officer] conducting the procedure influenced

the witnesses in any discernible way prior to their making the identification’’); State v. Outing, 298 Conn. 34,

49, 3 A.3d 1 (2010) (‘‘[a] simultaneous photographic

array is not unnecessarily suggestive per se, however,

even if it was not administered in a double-blind procedure’’), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179

L. Ed. 2d 316 (2011). The defendant does not argue that

§ 54-1p applies retroactively, but maintains that he was

prejudiced by the procedure utilized by Cooper. This

court previously has rejected a similar claim. In State

v. Johnson, supra, 149 Conn. App. 821, this court

rejected the defendant’s argument that ‘‘[t]he absence

of double-blind, sequential arrays makes a photo array

unduly suggestive’’; (internal quotation marks omitted);

where the eyewitness identification was made in 2009,

prior to the requirement that a sequential, double-blind

procedure be utilized. This court upheld the trial court’s

application of the law in effect at the time of the identification and rejected the defendant’s claim that ‘‘a nondouble-blind photographic array procedure, per se, is

unduly suggestive.’’ Id., 829. We similarly reject the

defendant’s claim in the present case that the absence

of a sequential, double-blind procedure per se rendered

the identification unnecessarily suggestive.16

Even if we assume, arguendo, that the photographic

array procedure was unduly suggestive, the identification nevertheless would be reliable on the basis of the

totality of the circumstances. See State v. Dickson,

supra, 322 Conn. 421 (‘‘[i]f the court finds that there

was an unduly suggestive procedure, the court goes on

to address the second reliability prong, under which

the corruptive effect of the suggestive procedure is

weighed against certain factors, such as the opportunity

of the [eyewitness] to view the criminal at the time of

the crime, the [eyewitness’] degree of attention, the

accuracy of [the eyewitness’] prior description of the

criminal, the level of certainty demonstrated at the

[identification] and the time between the crime and the

[identification]’’ [internal quotation marks omitted]). As

the defendant concedes, ‘‘McVey and Lee saw the robber up close, and in a well lit room.’’ Additionally, McVey

accurately described the defendant in her sworn statement to the police, and her description matched the

depiction of the perpetrator in the bank surveillance

photographs. Lee and McVey both testified that they

were 100 percent certain at the time of the identification

that the defendant was the perpetrator. The identification in February, 2009, was made close in time to the

December, 2008 robbery. Thus, even if there was an

unduly suggestive procedure, which we conclude there

was not, the defendant’s claim would fail under the
second reliability prong. See State v. Marquez, supra,

291 Conn. 141. On the basis of the foregoing, we conclude that the court did not err in denying the defendant’s motion to suppress the eyewitnesses’

identification of him.

III

The defendant claims that ‘‘[t]he jury charge on identification . . . failed to provide an in-depth explanation

of factors that have a negative impact on witness identification and . . . incorrectly excluded instructions

necessary to assist the triers of fact in assessing the

accuracy of eyewitness perception and credibility.’’

Specifically, the defendant contends that he was

deprived of a fair trial because the jury instructions

were incomplete, as several of the factors from State

v. Guilbert, 306 Conn. 218, 245, 49 A.3d 705 (2012), that

he included in his request to charge were missing or

not explained in sufficient depth. We are not persuaded.

The following additional facts and procedural history

are relevant to this claim. On April 30, 2014, the defendant filed a request to charge. A charging conference

began that same day and continued on the morning of

May 1, 2014. Discussion at the conferences centered

on the defendant’s request to charge on eyewitness

identification. The jury was instructed on May 1, 2014.

Following the instructions, the court asked the parties

if they had any exceptions to the charge. The state had

none. Defense counsel stated to the trial court that he

‘‘appreciate[d] [that] the court gave . . . in substance

what I requested’’ for the jury instructions, and he then

went on to clarify that he was not making additional

exceptions ‘‘other than what we had already argued

about yesterday in terms of crafting the identification

instructions. . . . I still don’t mean to abandon any of

the . . . arguments that . . . I made . . . yesterday

. . . .’’

‘‘Our Supreme Court has held that identification

instructions are not constitutionally required and [e]ven

if [a] court’s instructions were less informative on the

risks of misidentification . . . the issue is at most one

of instructional error rather than constitutional error.

A new trial would only be warranted, therefore, if the

defendant could establish that it was reasonably probable that the jury was misled. . . . The ultimate test of

a court’s instructions is whether, taken as a whole, they

fairly and adequately present the case to a jury in such

a way that injustice is not done to either party under

the established rules of law.’’ (Internal quotation marks

omitted.) State v. Day, supra, 171 Conn. App. 831.

‘‘We review nonconstitutional claims of instructional

error under the following standard. While a request to

charge that is relevant to the issues in a case and that

accurately states the applicable law must be honored,

a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is

in substance given, the [trial] court’s failure to give a

charge in exact conformance with the words of the

request will not constitute a ground for reversal. . . .

As long as [the instructions] are correct in law, adapted

to the issues and sufficient for the guidance of the jury

. . . we will not view the instructions as improper.’’

(Internal quotation marks omitted.) Id., 831–32. ‘‘A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.’’

(Internal quotation marks omitted.) State v. Holley, 174

Conn. App. 488, 493–94, 167 A.3d 1000, cert. denied,

327 Conn. 907, 170 A.3d 3 (2017), cert. denied, U.S.

, 138 S. Ct. 1012, 200 L. Ed. 2d 275 (2018).

The defendant claims that the following requested

Guilbert factors were omitted or understated in the

jury instructions: ‘‘there is at best a weak correlation

between a witness’ confidence in his or her identification and its accuracy’’; State v. Guilbert, supra, 306

Conn. 237; ‘‘identifications are likely to be less reliable

in the absence of a double-blind, sequential identification procedure’’; ‘‘witnesses are prone to develop

unwarranted confidence in their identifications if they

are privy to postevent or postidentification information

about the event or the identification’’; and ‘‘the accuracy

of an eyewitness identification may be undermined by

unconscious transference, which occurs when a person

seen in one context is confused with a person seen in

another.’’ Id., 238–39. To the extent that the defendant

suggests that the Guilbert factors are required in the

jury instructions, we reject that argument. As an initial

matter, Guilbert concerned the admissibility of expert

testimony, not a challenge to jury instructions. Although

the court in Guilbert did acknowledge the ‘‘widespread

judicial recognition that eyewitness identifications are

potentially unreliable in a variety of ways unknown to

the average juror’’; (internal quotation marks omitted)

State v. Grant, 154 Conn. App. 293, 311, 112 A.3d 175

(2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015);

it did not mandate that such factors be included in jury

instructions. See footnote 16 of this opinion. In fact, in

Guilbert, the court even noted that jury instructions

are less effective than expert testimony, stating that

‘‘research has revealed that jury instructions that direct

jurors in broad terms to exercise caution in evaluating

eyewitness identifications are less effective than expert

testimony in apprising the jury of the potential unreliability of eyewitness identification testimony.’’ State v.

Guilbert, supra, 245. The court in the present case

expressed its concern that, for the requested instructions to be provided in the charge, an expert, which

the defendant did not offer during the trial, would be

needed to explain eyewitness identification issues and

principles to the jury. It is undisputed that neither party

presented expert testimony at trial regarding such eyewitness identification issues and principles.
Certainly, while the court is not required to tailor its

instructions to the exact request of a party for a specific

instruction, ‘‘broad, generalized instructions on eyewitness identifications . . . do not suffice.’’ (Citations

omitted.) Id., 258. As set forth in the subsequent paragraphs, we conclude that the substance of the defendant’s requested instructions was given to the jury and

that the instructions were neither overbroad nor overgeneralized.

As to his claim regarding double-blind procedure,

the defendant requested the following language: ‘‘A law

enforcement officer who knows which photo is of the

suspect may intentionally or unintentionally convey

that knowledge to the witness. That increases the

chance that the witness will identify the suspect, even

if the suspect is innocent. For that reason, whenever

possible, photo arrays should be conducted by an officer who does not know the identity of the suspect. If

a police officer who does not know the suspect’s identity is not available, then the officer should not see the

photos as the witness looks at them. In this case, there

has been testimony that Detective Cooper knew the

identity of the suspect. It is also alleged that Detective

Cooper did not compensate for that by conducting a

procedure in which he did not see the photographs as

the witnesses looked at them.’’ (Footnote omitted.) The

court gave the following instruction: ‘‘A law enforcement officer who knows which photo is of the suspect

may intentionally or unintentionally convey that knowledge to the witness. . . . In this case, the identification

procedure utilized by Detective Cooper involved showing all eight photographs at the same time in the array

to each witness. You may consider whether the witness

was comparing each photograph in the array to one

another or each photograph in the array to her own

memory in making an identification.’’ The jury also was

instructed that ‘‘[f]eedback occurs when police officers

signal to eyewitnesses that they correctly identified the

suspect. Feedback may be either verbal or nonverbal.

Feedback may reduce doubt and engender or produce

a false sense of confidence in a witness.’’ Thus, the

defendant’s requested instruction, in substance, was

given.17

As to the defendant’s claim regarding unconscious

transference, he did not include an instruction on

unconscious transference in his request to charge.18 He

did, however, ask for the court to include such an

instruction at the April 30, 2014 charging conference,

and again on May 1, 2014. The court did not include an

instruction on unconscious transference. The defendant argues that this was error and that an instruction

on unconscious transference was necessary because

Lee testified that the defendant looked just like her

husband, and there were no experts to point out the

potential problems with unconscious transference. As
previously discussed in this opinion, the court in Guilbert noted that ‘‘research has revealed that jury instructions that direct jurors in broad terms to exercise

caution in evaluating eyewitness identifications are less

effective than expert testimony in apprising the jury of

the potential unreliability of eyewitness identification

testimony.’’ State v. Guilbert, supra, 306 Conn. 245. No

experts testified in the present case, and the court

expressed its reluctance to instruct on scientific theories and studies where the defendant did not offer

expert testimony. The court did not err in omitting an

instruction on unconscious transference. There was no

evidence at trial to establish that unconscious transference could be an issue for the jury to consider, and the

defendant provided no authority for the proposition

that such an instruction was required. The defendant

could have offered an expert to testify at trial as to

unconscious transference, but he did not do so.

As to the charge on eyewitness identification, the

differences in the defendant’s request to charge and the

jury instruction were minimal.19 The court did not use

the following requested language: ‘‘You may consider

that eyewitnesses are often not able to accurately recall

the source of their memories. In other words, their

belief that the identification was based on observations

at the time of the offense may be wrong. When a witness

makes an identification, that witness is expressing an

opinion that may be accurate or may be inaccurate.

. . . Eyewitness misidentification is the single greatest

source of wrongful convictions in the United States.’’

The court gave, in substance, what the defendant

requested by including in the instruction similar language to what it omitted from his request, including

that ‘‘[e]yewitnesses can be truthful but mistaken. The

identifications must be analyzed critically. Human

memory is not foolproof. . . . [B]e advised that a [witness’] level of confidence, standing alone, may not be

an indication of the reliability of the identification.’’

The defendant also requested the following instruction regarding the impact of the passage of time on

memory: ‘‘Memories fade with time. As a result, delays

between the commission of a crime and the time an

identification is made can affect the reliability of the

identification. In other words, the more time that passes, the greater the possibility that a witness’s memory

of a perpetrator will weaken or be influenced by postevent information.’’ The court omitted only the last sentence of the request, which, again, was in substance

what the defendant requested.

We reiterate that the court, in its discretion, need ‘‘not

tailor its charge to the precise letter’’ of the defendant’s

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

Day, supra, 171 Conn. App. 831. ‘‘Significantly, our

Supreme Court in Guilbert emphasized that a trial court

retains the discretion to decide whether, under the spe-
cific facts and circumstances presented, focused and

informative jury instructions on eyewitness testimony

are warranted. . . . In reviewing the discretionary

determinations of a trial court, every reasonable presumption should be given in favor of the correctness of

the court’s ruling.’’ (Citation omitted; emphasis omitted;

internal quotation marks omitted.) State v. Faust, 161

Conn. App. 149, 189 n.11, 127 A.3d 1028 (2015), cert.

denied, 320 Conn. 914, 131 A.3d 252 (2016). The jury

instructions were correct in law, adapted to the issue

of eyewitness identification, and sufficient to guide the

jury. See State v. Day, supra, 832. Accordingly, the jury

instructions given by the court were not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-134 (a) provides in relevant part that ‘‘[a] person

is guilty of robbery in the first degree when, in the course of the commission

of the crime of robbery as defined in section 53a-133 or of immediate flight

therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol,

revolver, rifle, shotgun, machine gun or other firearm . . . .’’

2 General Statutes (Rev. to 2007) § 53a-124 (a) provides that ‘‘[a] person

is guilty of larceny in the third degree when he commits larceny as defined

in section 53a-119 and . . . (2) the value of the property or service exceeds

one thousand dollars . . . .’’ All references herein to § 53a-124 refer to the

2007 revision of the statute, the revision in effect on the date of the crimes.

3 The defendant also asserted in his motion to dismiss that the arrest

warrant application contained multiple misrepresentations and material

omissions that entitled him to a dismissal pursuant to Practice Book § 41-

8 (1) and (9). The defendant has not challenged on appeal the court’s

dismissal of this claim.

4 The defendant pleaded guilty to seven counts of robbery in Massachusetts, and he was sentenced on July 23, 2010, to ten to twelve years of incarceration.

5

In that letter, the defendant stated, in relevant part: ‘‘Now comes Darren

Crosby, the defendant acting pro-se in the above captioned matter, and

respectfully moves the Honorable Court, pursuant to Rule 36, Mass. R. Crim.

P., to schedule a trial or other disposition in this action without further

delay. The defendant is presently incarcerated within the Massachusetts

Department of Correction at MCI Cedar Junction Walpole.’’

6 We note that the defendant did not pursue a claim that his right to be

brought to trial within 180 days of notice of the detainer was violated and

explicitly waived such a claim before the trial court.

7 Specifically, the court noted that ‘‘[t]he defendant contends that the

delay in his case adversely affected him personally by creating prolonged

angst and uncertainty as to the outstanding charges and their effect on his

term of imprisonment in Massachusetts. Although the uncertainty surrounding pending charges may surely generate feelings of anxiety, the defendant failed to provide any direct evidence that he suffered in this way. . . .

The defendant also failed to introduce any evidence regarding the effect, if

any, the pending Connecticut charges had on the conditions of his physical

incarceration or on his ability to participate in rehabilitation programs while

incarcerated in Massachusetts. As for the defendant’s claims that the fading

memories of the witnesses were exacerbated by the delay, [r]elying on the

simple passage of time, cannot, without a more specific showing, be said

to prejudice the defendant any more than the state. As the time between

the commission of the crime and trial lengthens, witnesses may become

unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. . . . Finally, the defendant again

asserts that the delay hampered his defense due to the change in his appearance from the date of the offense to the time of trial. The court has already

addressed that aspect of the defendant’s prejudice claim and has determined

it is unsupported by the evidence.’’ (Citations omitted; internal quotation

marks omitted.)

8 The defendant cites to State v. Soldi, 92 Conn. App. 849, 857, 887 A.2d
436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006), for the proposition

that ‘‘once a defendant puts forth evidence to suggest that [he] was not

elusive, was available and was readily approachable, the burden shifts to

the state to prove that the delay in executing the warrant was not unreasonable.’’ As the trial court indicated in its memorandum of decision, however,

Soldi is inapplicable to the present case.

The decision in Soldi and subsequent cases citing Soldi make clear that

this burden shifting rule applies in the context either of a warrant for

violation of probation or a warrant executed outside of the statute of limitations. See, e.g., State v. Swebilius, 325 Conn. 793, 803–804, 159 A.3d 1099

(2017) (warrant executed outside statute of limitations period); State v.

Woodtke, 130 Conn. App. 734, 736, 25 A.3d 699 (2011) (same); State v.

Pittman, 123 Conn. App. 774, 775, 3 A.3d 137 (delay in executing warrant

charging defendant with violation of probation), cert. denied, 299 Conn.

914, 10 A.3d 530 (2010). Neither of those circumstances is present in this

case, as the arrest warrant was not for a violation of probation, and the

warrant was executed within the five year statute of limitations. See footnote

10 of this opinion.

Instead, the defendant has the burden of establishing ‘‘both that actual

substantial prejudice resulted from the delay and that the reasons for the

delay were wholly unjustifiable, as where the state seeks to gain a tactical

advantage over the defendant.’’ (Internal quotation marks omitted.) State

v. John, supra, 210 Conn. 685–86; see also Slater v. Commissioner of Correction, supra, 158 Conn. App. 536–37 (applying two-pronged test set forth in

John); State v. Santos, 108 Conn. App. 250, 263, 947 A.2d 414 (2008) (‘‘[t]he

law is quite clear that [i]n order to establish a due process violation because

of pre-accusation delay, the defendant must show both that actual substantial

prejudice resulted from the delay and that the reasons for the delay were

wholly unjustifiable, as where the state seeks to gain a tactical advantage

over the defendant’’ [internal quotation marks omitted]).

9 We also reject the defendant’s claim that the delay resulted in actual,

substantial prejudice because ‘‘McVey’s and Lee’s identifications of the

defendant were the only evidence in the case that placed the defendant in

the Webster Bank during the robbery’’ and their lack of memory at trial

impacted the defense. This argument ignores the fact that there was other

evidence presented at trial from which the jury could determine the defendant’s guilt, including surveillance photographs of the defendant on the day

of the robbery at the bank and at another bank where he was dressed in

the same attire. Evidence of the defendant’s guilty plea to a robbery in East

Longmeadow, Massachusetts, was not admitted at trial; thus, the jury was

told that the images from the East Longmeadow bank were from a commercial establishment. The jury reviewed these photographs during its deliberations.

10 As the court noted in its memorandum of decision, ‘‘[t]here is a five

year statute of limitations for the offenses charged in the defendant’s case.

. . . The Webster Bank robbery occurred on December 18, 2008. The defendant was arrested on November 6, 2013—which is within the five year

limitation period. Thus, the defendant had adequate protections against the

disadvantages to an accused attending stale prosecutions . . . .’’ (Citations

omitted; internal quotation marks omitted.)

11 Because we conclude that the first prong of John has not been satisfied,

we need not consider whether the state’s delay was wholly unjustifiable

under the second prong of John. See State v. John, supra, 210 Conn. 685–86.

12 ‘‘ ‘Filler’ means either a person or a photograph of a person who is not

suspected of an offense and is included in an identification procedure.’’

General Statutes § 54-1p (a) (5).

13 At trial, the following examination took place:

‘‘[Defense Counsel]: Now, you knew the individual that had—the perpetrator, the individual who robbed you, had a relatively thin apparent face,

correct? Long and narrow?

‘‘[McVey]: I would say it was the eyes.

‘‘[Defense Counsel]: Well, you knew the face was long and narrow, right?

‘‘[McVey]: Okay. Yes.

‘‘[Defense Counsel]: Okay. All right. Let’s—let’s look at the array. You

said you looked through all the pictures, right?

‘‘[McVey]: Yes.

‘‘[Defense Counsel]: Okay. Showing you what’s been admitted as state’s

[exhibit] 11. Excuse me while I get my copy. So, there—the person, in

number one, his face isn’t exactly long and narrow, is it?

‘‘[McVey]: No.
‘‘[Defense Counsel]: Okay. And you look at—you looked at all these,

you said?

‘‘[McVey]: I did.

‘‘[Defense Counsel]: Okay. Number two, he’s a little on the young side,

right?

‘‘[McVey]: I guess.

‘‘[Defense Counsel]: Okay. Do you remember giving a sort of age description of the person?

‘‘[McVey]: No.

‘‘[Defense Counsel]: Okay. Number three, we’ve already talked about,

right?

‘‘[McVey]: Yes.

‘‘[Defense Counsel]: Number four, he’s a little too light skin and his face

is wrong, right?

‘‘[McVey]: Yes.

‘‘[Defense Counsel]: Okay. And number five, he might be the right complexion, but his face is wrong, too, right?

‘‘[McVey]: Right.

‘‘[Defense Counsel]: Number six, his face is long and narrow, right?

‘‘[McVey]: Correct.

‘‘[Defense Counsel]: But his complexion is a little on the light side from

what you saw, right?

‘‘[McVey]: It has nothing to do with the complexion.

‘‘[Defense Counsel]: I understand. But he’s fairly—

‘‘[McVey]: It was the eyes.

‘‘[Defense Counsel]: I understand that’s your testimony—

‘‘[McVey]: Uh-huh.

‘‘[Defense Counsel]: —please answer my question.

‘‘[McVey]: Okay.

‘‘[Defense Counsel]: Number seven, again, face is wrong, right?

‘‘[McVey]: Uh-huh.

‘‘[Defense Counsel]: And number eight, again, sort of long and narrow,

but, again, a little bit light—more lightly reflected than number three, right?

‘‘[McVey]: Correct.’’

14 ‘‘A double-blind photographic identification procedure is one in which

the officer conducting [the procedure] has not been involved in the investigation and does not know who the target is.’’ (Internal quotation marks omitted.) State v. Patterson, 170 Conn. App. 768, 772 n.1, 156 A.3d 66, cert.

denied, 325 Conn. 910, 158 A.3d 320 (2017). Because Cooper knew that the

defendant was a suspect when he presented the photographic array to the

witnesses, the procedure was not double-blind.

‘‘A sequential photographic identification procedure involve[s] showing

the witness the suspect and other fillers on the identification procedure one

at a time, rather than the traditional practice of simultaneous presentation.’’

(Internal quotation marks omitted.) Id., 772 n.2. Because eight photographs

were presented to the witnesses simultaneously, the procedure was not

sequential.

15 General Statutes § 54-1p (c) provides in relevant part that ‘‘[n]ot later

than May 1, 2013, each municipal police department and the Department

of Emergency Services and Public Protection shall adopt procedures for

the conducting of photo lineups . . . that comply with the following requirements: (1) Whenever a specific person is suspected as the perpetrator of an

offense, the photographs included in a photo lineup . . . shall be presented

sequentially so that the eyewitness views one photograph . . . at a time

. . . (2) The identification procedure shall be conducted in such a manner

that the person conducting the procedure does not know which person in

the photo lineup . . . is suspected as the perpetrator of the offense, except

that, if it is not practicable to conduct a photo lineup in such a manner, the

photo lineup shall be conducted by the use of a folder shuffle method,

computer program or other comparable method so that the person conducting the procedure does not know which photograph the eyewitness is viewing during the procedure . . . .’’

16 We also are not persuaded by the defendant’s reliance on Guilbert for

the proposition that ‘‘identifications are likely to be less reliable in the

absence of a double-blind, sequential identification procedure . . . .’’ State

v. Guilbert, 306 Conn. 218, 238 n.39, 49 A.3d 705 (2012). This court previously

has corrected a defendant’s statement that Guilbert stands for such a proposition, noting that ‘‘[t]he principal issue before the court in Guilbert was

not whether any particular identification procedures are constitutionally

mandated, but whether courts are obligated to admit under specified circum-
stances qualified expert testimony concerning the fallibility of eyewitness

identification under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en

banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998),

to aid juries in their evaluation of identification evidence. . . . The court

in Guilbert acknowledged ‘widespread judicial recognition that eyewitness

identifications are potentially unreliable in a variety of ways unknown to

the average juror. . . .’ In particular, the court mentioned that ‘[c]ourts

across the country now accept that [among other things] . . . identifications are likely to be less reliable in the absence of a double-blind, sequential

identification procedure . . . .’ (Citations omitted.) State v. Grant, 154

Conn. App. 293, 311, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109

A.3d 923 (2015).

‘‘Nothing in Guilbert, however, suggests that if the police show the photographs to the witness simultaneously and the procedure is administered

by an officer who knows the identity of the suspect, the procedure is

unnecessarily suggestive as a matter of law. In ruling that experts in appropriate circumstances should be allowed to testify about issues that may

affect the accuracy of identifications, the court was not concerned with

the admissibility of identification evidence, but rather with a jury’s proper

exercise of its duty to evaluate the weight to be given to a particular eyewitness’ identification.’’ (Emphasis added and omitted.) Id.

17 Despite the fact that the charge was in substance given, the defendant

argues that the double-blind instruction ‘‘does not further instruct [on] the

desirability of the ‘double-blind’ procedure . . . .’’ The court explained that

it excluded such language because it determined that it was prejudicial to

the state. The court expressed its concern that a double-blind procedure

was not required in 2009 and that, to include the defendant’s requested

language, the jury may assume that Cooper employed the wrong procedure.

See State v. Johnson, supra, 149 Conn. App. 821; see also State v. Grant,

supra, 154 Conn. App. 311. We reiterate that the court’s instructions must

‘‘fairly and adequately present the case to a jury in such a way that injustice

is not done to either party under the established rules of law.’’ (Emphasis

added; internal quotation marks omitted.) State v. Day, supra, 171 Conn.

App. 831.

18 ‘‘[U]nconscious transference . . . occurs when a person seen in one

context is confused with a person seen in another.’’ State v. Guilbert, supra,

306 Conn. 253–54.

19 In his request to charge, the defendant requested the following language:

‘‘It is your function to determine whether the witnesses’ identifications of

the defendant are reliable and believable, or whether they are based on a

mistake or for any reason are not worthy of belief. You may consider that

eyewitnesses are often not able to accurately recall the source of their

memories. In other words, their belief that the identification was based on

observations at the time of the offense may be wrong. When a witness

makes an identification, that witness is expressing an opinion that may be

accurate or may be inaccurate. Eyewitnesses can be truthful but mistaken.

Eyewitness misidentification is the single greatest source of wrongful convictions in the United States. Even where a witness believes that his or her

testimony is accurate, it is your function to determine whether the witness’

identification of the defendant is reliable, or whether it is based on a mistake

or for any reason is not worthy of belief.

‘‘Human memory is not foolproof. Research has revealed that human

memory is not like a video recording that a witness need only replay to

remember what happened. Memory is far more complex. The process of

remembering consists of three stages: acquisition—the perception of the

original event; retention—the period of time that passes between the event

and the eventual recollection of a piece of information; and retrieval—the

state during which a person recalls stored information. At each of these

stages, memory can be affected by a variety of factors.

‘‘Relying on some of the research that has been done, I will instruct you

on specific factors you should consider in this case in determining whether

the eyewitness identification evidence is reliable. In evaluating these identifications, you should consider the observations and perceptions on which

each identification was based, the witnesses’ ability to make those observations and perceive events, and the circumstances under which the identifications were made. Although nothing may appear more convincing than a

witness’ categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may

be mistaken. Therefore, when analyzing such testimony, be advised that a

witness’ level of confidence, standing alone, may not be an indication of
the reliability of the identification.’’ (Footnotes omitted.)