******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. LUIS ORTIZ
(AC 35513)
Lavine, Keller and Prescott, Js.
Argued October 21—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Hartford, Vitale, J.)
Jodi Zils Gagne, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and David L. Zagaja, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Luis Ortiz, appeals from
the judgment of conviction, rendered following a jury
trial, of assault in the first degree in violation of General
Statutes § 53a-59 (a) (5), conspiracy to commit assault
in the first degree in violation of General Statutes
§§ 53a-48 and 53a-59 (a) (5), and carrying a pistol with-
out a permit in violation of General Statutes § 29-35.1
The defendant claims that the court improperly denied
(1) his motions to suppress evidence and (2) his motion
for a judgment of acquittal. We affirm the judgment of
the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found that, on April 9, 2011,
the victim, Raphael Alsina, was walking with his girl-
friend, Rosa Arroyo, on Maple Street in Hartford. The
defendant and his brother-in-law, Heriberto Pagan,
were driving on Maple Street when they approached
the victim and Arroyo. A verbal argument between the
three men ensued. Prior to these events, the defendant
and the victim had an acrimonious history and, weeks
earlier, the victim’s brother sustained physical injury
during an altercation with Pagan. After this initial
encounter on Maple Street, the defendant and Pagan
drove to Pagan’s residence, where Pagan retrieved a
gun. Pagan and the defendant drove back to the victim’s
location on Maple Street. Pagan, who was in the driver’s
seat of the automobile, pointed the gun at the victim,
and stated: ‘‘We’re either going to finish this or I’m going
to kill you.’’ The victim approached the automobile, at
which time the defendant exited the passenger side of
the automobile while brandishing the gun that Pagan
had been holding moments earlier, and shot the victim
in the chest. The defendant did not have a permit to
possess the gun lawfully. The victim sustained serious
injuries, but survived the shooting. Thereafter, the
defendant and Pagan fled the scene.
Following the defendant’s arrest, he was convicted
of assault in the first degree, conspiracy to commit
assault in the first degree, and carrying a pistol without
a permit. This appeal followed. Additional facts and
procedural history will be set forth in the context of
the defendant’s claims.
I
First, the defendant claims that the court improperly
denied his motions to suppress evidence related to eye-
witness identifications and a self-incriminatory state-
ment that he provided to the police following his arrest.
We disagree with the claim, and will address both
aspects of it in turn.
A
Eyewitness Identification Evidence
By means of a written motion to suppress evidence
filed August 1, 2012, the defendant moved to suppress
any evidence of pretrial or in-court identifications of
him on the grounds that (1) ‘‘[t]he identification proce-
dure employed was unnecessarily suggestive,’’ (2) ‘‘[a]n
in-court identification would be irretrievably tainted by
the prior illegal identification and would thus lack an
independent basis,’’ and (3) ‘‘[a]ny identification offered
would fail to meet the standard of reliability as enunci-
ated in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34
L. Ed. 2d 401 (1972).’’ The court held an evidentiary
hearing on the motion, during which it heard evidence
related to eyewitness identifications of the defendant
that were made by Arroyo and Raphael Noguet, a
bystander who witnessed the events at the scene of
the shooting.
At the suppression hearing, the court heard testimony
from Mark Fowler, Mark Rostkowski, and Jose Perez,
all of whom are detectives with the Hartford Police
Department. The court also heard testimony from
Pagan, Arroyo, and Noguet. Relevant to the present
claim, Fowler testified with regard to the procedure by
which Arroyo identified the defendant, as the shooter,
and Pagan, as the driver of the automobile used during
the shooting, by means of two photographic arrays.
Rostkowski testified with regard to the procedure by
which Noguet identified the defendant, as the shooter,
by means of a photographic array.
After the presentation of evidence at the suppression
hearing, the defendant’s attorney argued, for a variety
of reasons unrelated to the manner in which the photo-
graphic arrays were administered by the police, that
the identifications of the defendant made by Arroyo
and Noguet were not reliable. Thereafter, the following
colloquy occurred:
‘‘The Court: All right. In terms of the actual proce-
dures themselves on the photo boards . . . what is the
claim in terms of why they are unnecessarily sugges-
tive? I mean, are you making any specific claims
regarding the procedure, the pictures, anything like
that?
‘‘[Defense Counsel]: Judge, on their [face], the proce-
dures, and on the testimony, if the court chooses to
credit it, that’s what they’re supposed to do. I don’t have
. . . any criticism that I can offer the court based on
the testimony and the evidence that’s been presented
to you.
‘‘The Court: Well, I mean, if that’s the case, then do
we even get to the reliability portion of this? If you’re
essentially telling me that the procedures are not unnec-
essarily suggestive, we don’t get to the second prong
unless there’s a problem with the first prong.
‘‘[Defense Counsel]: Judge, I think I would take the
position that, particularly with Ms. Arroyo, that perhaps
standard analysis does not cover the problem. And
whether or not the police procedure was fair, if the
source of her identification is not coming from her
direct observation, then arguably she’s not a confident
witness to testify on that point, and then by extension,
you know, the evidence that’s been created, so to speak,
by . . . the identification procedure is not reliable,
either. It’s apart from the normal analysis.’’ (Empha-
sis added.)
Following the suppression hearing, the court, in an
oral decision, denied the motion to suppress. The court
made detailed findings of fact concerning the positive
identifications made by Arroyo and Noguet by means
of the photographic arrays. The court stated that it had
reviewed the evidence and had evaluated the claim
pursuant to the analytical framework set forth in State
v. Marquez, 291 Conn. 122, 141–43, 967 A.2d 56, cert.
denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163
(2009). There is no dispute, and we agree, that Marquez
sets forth the applicable framework for this type of
claim.
In Marquez, our Supreme Court stated: ‘‘In determin-
ing whether identification procedures violate a defen-
dant’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 identi-
fication was nevertheless reliable based on examination
of the totality of the circumstances. . . .
‘‘There are . . . two factors that courts have consid-
ered in analyzing photographic identification proce-
dures for improper suggestiveness. The first factor
concerns the composition of the photographic array
itself. In this regard, courts have analyzed whether the
photographs used were selected or displayed in such
a manner as to emphasize or highlight the individual
whom the police believe is the suspect. . . .
‘‘The second factor, which is related to the first but
[is] conceptually broader, requires the court to examine
the actions of law enforcement personnel to determine
whether the witness’ attention was directed to a suspect
because of police conduct. . . . In considering this
[factor, the court should] look to the effects of the
circumstances of the pretrial identification, not whether
law enforcement officers intended to prejudice the
defendant.’’ (Citations omitted; internal quotation
marks omitted.) Id.
First, the court addressed Noguet’s identification.
With regard to the first factor relevant to a claim of
improper suggestiveness, the court stated: ‘‘The court
did inquire [during the hearing on the motion to sup-
press] and was not alerted to any claim by the defendant
as to whether the photographs used in the photo board
with regard to [Noguet] were selected or displayed in
such a manner as to emphasize or highlight the individ-
ual police thought was the suspect. Defense essentially
did concede that there was no claim like that being
made. The court has evaluated the testimony of the
witness and Detective Rostkowski. The court finds
there is nothing in the composition of the photo board
nor in the conduct of the police that is unnecessarily
suggestive.’’ With regard to the second factor, the court
concluded that there was no evidence that the circum-
stances of the pretrial investigation influenced
Noguet’s identification.
Next, the court addressed Arroyo’s identification of
the defendant. With regard to the first factor relevant
to a claim of improper suggestiveness, the court made
detailed findings concerning Arroyo’s testimony and
the manner in which the police administered the photo-
graphic arrays at issue. The court stated, in relevant
part: ‘‘Again, the defendant appears to concede nothing
in the lineup itself or the procedure was suggestive.’’
The court went on to find that nothing in Arroyo’s
testimony indicated that, at the time of the shooting,
she was not in a position to observe the defendant.
Having concluded that the procedures at issue were
not unnecessarily suggestive, the court stated that it
need not consider whether the identifications were nev-
ertheless reliable based on an examination of the total-
ity of the circumstances. Accordingly, the court denied
the motion to suppress.
Before this court, the defendant analyzes his claim
by asserting that the identification procedures used by
the police were unnecessarily suggestive because the
police failed to employ a double-blind,2 sequential3 pro-
cedure of administering the photographic arrays to
Arroyo and Noguet. The defendant supports his analysis
with reference to various written publications, none of
which were mentioned during argument on the defen-
dant’s motion to suppress or presented to the trial court
for its consideration. The defendant urges this court to
conclude that the identifications were unnecessarily
suggestive on this specific ground and, thereafter, to
conclude that the identifications were unreliable.
We agree with the state that the claim is unpreserved
and that it does not warrant appellate review on its
merits. The defendant brought a motion to suppress in
which he challenged in broad terms the suggestiveness
of the identification procedure at issue in this case. The
court held a hearing on the motion, during which the
court was presented with a full factual record of what
had occurred during the identification process. With the
benefit of this factual record, however, the defendant’s
attorney did not argue that the identification procedure
was deficient in any way, let alone raise the specific
claim articulated here. Rather, as discussed earlier in
this opinion, the defendant’s attorney stated that, on
the basis of his evaluation of the evidence before the
court, he did not have ‘‘any criticism’’ of the photo-
graphic array procedure at issue. In its decision, the
court explicitly relied on the representations of the
defendant’s attorney.
The defendant asserts: ‘‘The motion was made, the
hearing was held, and the claim was preserved.’’ More-
over, the defendant argues that it is of no consequence
that his trial counsel did not raise the claim presented
here or that he did not argue that the identification
procedure was deficient in any way. The defendant
argues that this is because, in contrast to trial counsel,
who ‘‘had a difficult time articulating these arguments
at the suppression hearing,’’ appellate counsel had the
benefit of ‘‘more time to research these issues and elab-
orate on them . . . .’’ Taken to its logical end, the
defendant’s argument is that because he filed a motion
to suppress, such motion encompassed any conceivable
argument related to the evidence at issue.
The defendant’s arguments are at odds with well set-
tled principle that, generally, claims of error will not
be considered on their merits at the appellate level
unless they were distinctly raised before and addressed
by the trial court. ‘‘Only in most exceptional circum-
stances can and will this court consider a claim, consti-
tutional or otherwise, that has not been raised and
decided in the trial court.’’ State v. Evans, 165 Conn.
61, 69, 327 A.2d 576 (1973); see also Practice Book § 60-
5 (‘‘[t]he court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial’’). This principle is based on principles
of fairness, both to the trial court and opposing counsel,
and judicial economy.
Beyond the fact that the present claim was not raised
before the trial court remains the fact that the court
did not address a claim related to the suggestibility of
the identification procedures used by the police
because, at the suppression hearing, the defendant’s
attorney expressly waived such a claim. As the colloquy
excerpted previously reflects, following a pertinent
inquiry by the court, the defendant’s attorney unambigu-
ously stated that the defense did not have any criticism
of the identification procedures. The court was entitled,
and could be expected, to rely on the representations
of the defendant’s attorney when evaluating what issues
properly were before it.4 ‘‘We generally do not review
unpreserved, waived claims. . . . To reach a contrary
conclusion would result in an ambush of the trial court
by permitting the defendant to raise a claim on appeal
that his or her counsel expressly had abandoned in the
trial court.’’ (Citation omitted; internal quotation marks
omitted.) State v. Foster, 293 Conn. 327, 337, 977 A.2d
199 (2009). On the basis of the foregoing, we do not
review the defendant’s claim.
B
Defendant’s Statement to Police
By means of a written motion to suppress evidence
filed August 1, 2012, the defendant asked the court
to suppress ‘‘all statements, whether written or oral,
allegedly made by [him], items seized as a result and
any testimony related thereto.’’ The defendant asserted
in his motion that such statements were (1) obtained
in violation of his right against self-incrimination, (2)
made without the assistance of counsel, and (3) made
in the absence of a knowing and intelligent waiver of
the right to counsel.
During the suppression hearing discussed in part I A
of this opinion, at which evidence was presented with
regard to both motions to suppress brought by the
defense, the court heard evidence concerning a written
statement that the defendant provided to the police
following his arrest.5 This statement is the subject of
the present claim. During argument on the motion, one
of the arguments advanced by the defendant’s attorney
was that the defendant’s statement should be sup-
pressed because Spanish is the defendant’s first lan-
guage and, even though the police advised him of his
Miranda rights6 in Spanish, he was interrogated in
English and the typed statement prepared by the police
and signed by the defendant was in English. The defen-
dant’s attorney was not particularly clear in advancing
the legal basis underlying his argument, but stated that
the procedure employed by the police made the state-
ment ‘‘less than reliable.’’
In its decision, the court found the following relevant
facts: ‘‘Prior to talking to the defendant, he was advised
of his so-called Miranda rights from a Hartford Police
Department rights card. The defendant spoke and
understood English, but he preferred that the rights be
read to him in Spanish.7 Rostkowski did not initially
have a Spanish version of the so-called Miranda rights;
however, Detective Jose Perez, a bilingual officer, read
the defendant his constitutional rights from a Hartford
Police Department Miranda rights card . . . . The
rights card is in Spanish. Thereafter . . . a Miranda
rights waiver form was read in Spanish by Detective
Perez, which the defendant both signed and initialed
. . . .
‘‘Both advisements and the waiver were . . . wit-
nessed by Detective Rostkowski and Perez . . . . The
rights forms in Spanish were read in Spanish to the
defendant by Detective Perez. Detective Perez repre-
sented to Detective Rostkowski that the defendant
understood his rights and wished to speak with the
police. The defendant also said he could communicate
in English and did not express any hesitation in doing
so to Detective Rostkowski.
‘‘His statement was taken by means of Rostkowski’s
interviewing the defendant and simultaneously typing
the defendant’s statement on a laptop computer. The
defendant had the opportunity to review the statement,
it was read back to him, and each sentence was gone
over. The defendant was asked if he was in agreement
with the contents and did indicate he was in agreement.
The defendant demonstrated his agreement by signing
both pages of the statement . . . .
‘‘He was emotional and somber during the taking of
the statement and was provided with the opportunity
to use the bathroom and provided with a drink. He did
not appear to be under the influence of any intoxicants.
The defendant was forthcoming and was allowed to
elaborate, and the conversation followed a natural pro-
gression. The state concedes that the defendant was
subject to custodial interrogation.
‘‘In addition, there does not appear to be a serious
dispute that the police provided the defendant with
his Miranda warnings. The defendant claims that a
knowing, intelligent waiver of his fifth amendment
rights did not occur as a consequence of his having
been advised of his rights in Spanish and his statement
thereafter being taken in English.’’
The court set forth relevant legal principles related
to whether the defendant knowingly and intelligently
waived his rights under Miranda. The court made the
following additional findings: ‘‘First, with respect to
his intelligence, it did not appear to either Detective
Rostkowski or Detective Perez that the defendant had
any difficulty understanding or speaking the English
language nor the Spanish language, and the defendant
indicated to Perez that he wished to speak to the police.
‘‘In terms of his age, he is an adult.
‘‘With regard to his level of education . . . no evi-
dence at the hearing was presented that the defendant
lacked [an] education which impaired his ability to
understand and therefore knowingly and intelligently
waive his rights.
‘‘With regard to his general physical, mental and emo-
tional state, there is evidence that the defendant was
somber and occasionally emotional; however, the evi-
dence demonstrates that the defendant was in full pos-
session of his faculties at the time of the statement.’’
The court went on to determine that the defendant
waived his Miranda rights of his own, ‘‘free, considered
and unrestrained choice.’’ The court stated: ‘‘There is
no evidence that the police used threats or any other
coercive tactic to elicit the waiver. There was no indica-
tion that the defendant’s free will was overcome, nor
that the statement was not freely self-determined. There
is nothing in the record from which the court can con-
clude that the defendant did not act voluntarily, know-
ingly and intelligently when he waived his rights. There
is no evidence in the record indicating a lack of under-
standing by the defendant of what he was doing or the
legal consequences of . . . his actions. At no time did
the defendant ask for a clarification or explanation of
what was occurring.’’
Addressing the defendant’s claim that the court
should suppress the statement because it was typed
in English, the court, after referring to several legal
authorities, stated: ‘‘[The] court finds that the defen-
dant’s statement . . . has been properly authenticated.
The defendant himself, prior to the start of the hearing,
indicated that he spoke both Spanish and English and
that he understood English. The court finds that there
is nothing in the record to support the claim that the
procedure at issue, advisement in Spanish and state-
ment in English, resulted in a statement that was invol-
untary nor that it was the product of an invalid waiver
of his Miranda rights. The court finds the defendant
request[ed] . . . the advisement be explained in Span-
ish, which was his native language, but that there is
no evidence to support a claim that the subsequent
statement provided in English was not freely self-deter-
mined or not reliable.’’
Echoing one of the arguments that he advanced
before the trial court, the defendant claims on appeal
that his statement should have been suppressed
because he was advised of his Miranda rights in Span-
ish, but his typed statement, that he signed, was in
English. His claim does not pertain to his Miranda
rights waiver, but his understanding of the content of
the statement that he signed, in which he incriminated
himself in the shooting. In his principal brief, he argues
that he had a ‘‘limited working knowledge of the English
language and possibly did not fully understand all of
the words he was hearing.’’ The defendant suggests that
there was a danger in these circumstances that ‘‘the
police could have added facts to his statement that he
did not say.’’
‘‘[O]ur standard of review of a trial court’s findings
and conclusions in connection with a motion to sup-
press is well defined. A finding of fact will not be dis-
turbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . .
[When] the legal conclusions of the court are chal-
lenged, [our review is plenary, and] we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
court’s [ruling] . . . .’’ (Internal quotation marks omit-
ted.) State v. Ocasio, 112 Conn. App. 737, 742–43, 963
A.2d 1109, cert. denied, 292 Conn. 904, 973 A.2d 106
(2009).
The defendant correctly concedes that there is no
legal authority that forbids the type of procedure
employed by the police in the present case. His legal
argument that the statement should have been sup-
pressed on the ground of lack of voluntariness hinges
on the accuracy of his factual assertion that he lacked
a sufficient understanding of the English language to
comprehend the words spoken to him by the police
in that language. The defendant, however, fails in any
manner to challenge the correctness of the court’s fac-
tual findings that at the time that he provided the state-
ment to the police, he was capable of communicating
in English and, although he had requested that his
Miranda advisement occur in Spanish, he was not hesi-
tant thereafter to communicate with the police in
English. The court based this critical factual finding not
merely on its own observations of the defendant at the
time of the suppression hearing, but on the totality of
its circumstantial findings of what transpired during
the police interrogation, including the defendant’s own
statements to the police as well as the observations of
the defendant made by the police officers involved in
his interrogation. The defendant has not challenged the
court’s findings in this regard. Moreover, the court
found that Rostkowski read each sentence of the type-
written statement to the defendant, who indicated that
he agreed with its contents. This finding, unchallenged
on appeal and based on the evidence, undermines any
claim of police wrongdoing with regard to the content
of the statement that the defendant signed. Our careful
review of the evidence fully supports the court’s finding
that the defendant understood the English language
and that the defendant understood the content of his
statement when Rostkowski read it to him. Accordingly,
we reject the defendant’s claim that the court improp-
erly denied his motion to suppress his statement.
II
Next, the defendant claims that the court improperly
denied his motion for a judgment of acquittal because
the evidence was insufficient to sustain a conviction
with regard to any of the crimes with which he was
charged. The record reflects that he moved for a judg-
ment of acquittal with regard to all counts at the conclu-
sion of the state’s case-in-chief. The court denied the
motion.
The defendant’s analysis of this claim is wholly
dependent on a determination by this court that the
court improperly denied his motion to suppress the
eyewitness identification evidence (discussed in part I
A of this opinion), and the defendant’s statement to the
police following his arrest (discussed in part I B of this
opinion). The defendant’s claim is that ‘‘[w]ithout the
identifications [of the defendant by Arroyo and Noguet]
and the statement, all of which should have been sup-
pressed, there was insufficient evidence to convict
[him]. Without the identifications and the statement,
the state failed to prove [his] guilt beyond a reasonable
doubt.’’ Because we conclude in part I of this opinion
that the court properly denied the defendant’s motions
to suppress, the defendant is unable to prevail with
regard to this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court sentenced the defendant to a total effective term of incarcera-
tion of twenty years, suspended after fifteen years, one year of which was a
mandatory minimum sentence, followed by a term of probation of five years.
2
A double-blind photographic array is ‘‘administered by an uninterested
party without knowledge of which photograph represents the suspect.’’ State
v. Marquez, supra, 291 Conn. 132.
3
‘‘A simultaneous photographic array is one in which the witness is shown
a photograph board containing six or eight photographs, only one of which
is of the suspect. This is in contrast to a sequential photographic array, in
which the witness is shown the photographs one at a time. See State v.
Williams, 146 Conn. App. 114, 129 n.16, 75 A.3d 668, cert. granted on other
grounds, 310 Conn. 959, 82 A.3d 626 (2013).’’ State v. Wright, 152 Conn.
App. 260, 280 n.12, 96 A.3d 638 (2014).
4
The defendant does not request any extraordinary level of review of this
claim and affirmatively states that he does not seek review under the doctrine
set forth in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
Nonetheless, we observe that, even if the defendant had sought review under
Golding or had argued that the judgment should be reversed on the basis
of plain error, waiver thwarts review under both Golding and the plain error
doctrine. See, e.g., Mozell v. Commissioner of Correction, 291 Conn. 62, 70,
967 A.2d 41 (2009).
5
In the signed and sworn statement, the defendant averred, inter alia,
that there was an ongoing dispute between him and the victim, and that
the shooting occurred accidentally during a physical altercation between
himself and the victim. The defendant admitting getting out of Pagan’s
automobile with a gun, at which time the victim ran into him, which caused
the gun to discharge. The defendant expressed remorse for the shooting.
6
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
7
The defendant communicated this preference in English.