State v. Ruiz

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 STATE OF CONNECTICUT v. JOSE RUIZ
(SC 20275)
Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins and Ecker, Js.*

Syllabus

The defendant appealed to the Appellate Court from the trial court’s judg-
ment revoking his probation following an incident in which he allegedly
robbed and threatened W, a customer at a donut shop. A police officer
had been dispatched to the donut shop after a report that a customer
had been robbed there. The officer was informed that the customer, W,
had described the suspect as a Hispanic male with a tattoo under his
eye and had indicated that the suspect was wearing dark clothing.
Upon the officer’s arrival at the donut shop, he saw someone causing
a disturbance. That person retreated to the bathroom, where the officer
found him. The officer immediately noticed that that person, the defen-
dant, was a Hispanic male, had a tattoo under his eye, and was dressed
in dark clothing. The defendant was then detained in a police cruiser
in the donut shop’s parking lot. The officer then went to W’s house and
took his statement. W told the officer that someone attempted to rob
him at the donut shop by indicating that he had a gun. W also stated
that he would be able to identify his assailant if he saw him again. The
officer and W then went back to the donut shop. When they arrived,
the officer asked another officer to remove the defendant from the
cruiser and have him stand next to it. The officer aimed a spotlight on
the cruiser and the defendant, and W stated, ‘‘without a doubt,’’ that
was the person who robbed him. That identification occurred within
twenty minutes of the officer’s initial arrival at the donut shop and
within forty-five minutes after W first reported the incident. After the
defendant was charged with violating his probation, he filed a motion
to suppress W’s identification of him, claiming that the one-on-one show
up procedure the police used in connection with the identification vio-
lated his due process rights. The trial court denied the motion, conclud-
ing that the procedure was not unnecessarily suggestive. On appeal, the
Appellate Court concluded, inter alia, that the procedure the police had
used, although suggestive, was not unnecessarily suggestive due to the
exigencies of the ongoing investigation and affirmed the trial court’s
judgment. On the granting of certification, the defendant appealed to
this court, claiming that the identification procedure the police used
was unnecessarily suggestive and rendered the identification unreliable.
Held that the defendant could not prevail on his claim that the trial
court had improperly declined to suppress the identification because,
even if the identification procedure the police used was unnecessarily
suggestive, W’s identification of the defendant, in light of the totality of
the circumstances, was reliable; W had a good opportunity to view the
defendant at close range while they were in the donut shop before the
defendant threated him and again when the defendant confronted him
face-to-face, W was attentive because of the defendant’s strange and
disturbing focus on him, W gave an accurate description of the defendant
within moments of the incident, W had a high level of certainty with
respect to his identification, and the identification was made less than
one hour after W’s initial encounter with the defendant.
Argued May 8—officially released December 11, 2020**

Procedural History

Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of New Haven, where the court, Blue, J., denied
the defendant’s motion to suppress certain evidence;
thereafter, the case was tried to the court, Blue, J.;
judgment revoking the defendant’s probation, from
which the defendant appealed to the Appellate Court,
DiPentima, C. J., and Alvord and Beach, Js., which
affirmed the trial court’s judgment, and the defendant,
on the granting of certification, appealed to this court.
Affirmed.
Mary Boehlert, assigned counsel, for the appellant
(defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Brian K. Sibley, Sr., senior assistant
state’s attorney, for the appellee (state).
 Opinion

PALMER, J. The defendant, Jose Ruiz, appeals, upon
our granting of certification, from the judgment of the
Appellate Court, which affirmed the judgment of the
trial court revoking the defendant’s probation following
an incident in which he allegedly robbed and threatened
a customer, Lawrence Welch, at a Dunkin’ Donuts store
in the city of New Haven. See State v. Ruiz, 188 Conn.
App. 413, 416–17, 204 A.3d 798 (2019). After he was
charged with violating a condition of his probation on
the basis of that incident, the defendant filed a motion
to suppress Welch’s identification of him, claiming that
the one-on-one showup procedure that the police used
in connection with that identification violated his rights
under the due process clause of the fourteenth amend-
ment to the United States constitution.1 The trial court
denied the motion, concluding that the procedure was
not unnecessarily suggestive and, following a hearing,
found that the defendant had violated his probation.
Thereafter, the court rendered judgment revoking the
defendant’s probation and imposing a sentence of seven
and one-half years of incarceration, execution sus-
pended after four years, and three years of probation.
On appeal to the Appellate Court, the defendant
claimed, inter alia, that, contrary to the determination
of the trial court, the showup identification procedure
was unnecessarily suggestive and, further, that the
flawed procedure had rendered the identification unre-
liable. See id., 417. The Appellate Court concluded that
the procedure that the police used, although suggestive,
was not unnecessarily suggestive due to the exigencies
of the ongoing investigation; id., 421–22; and, in light
of this determination, the court did not reach the issue
of reliability. Id., 422 n.3. The Appellate Court also
rejected the defendant’s other claims2 and, accordingly,
affirmed the trial court’s judgment. In this certified
appeal, the defendant contends that the identification
procedure used by the police violated the federal consti-
tution because it was unnecessarily suggestive and ren-
dered the identification unreliable. We affirm the judg-
ment of the Appellate Court, albeit for a reason different
from that relied on by the Appellate Court, namely,
because Welch’s identification of the defendant was
reliable notwithstanding the inherent suggestiveness of
the showup procedure.
The following facts, as set forth in the opinion of the
Appellate Court, and procedural history are relevant to
our resolution of this appeal. ‘‘On July 13, 2012, the
defendant was convicted of three counts of assault in
the first degree in violation of General Statutes § 53a-
59 (a) (3) and one count of carrying a pistol without a
permit in violation of General Statutes § 29-35 (a), and
was sentenced to twelve years [of] incarceration, execu-
tion suspended after fifty-four months, and three years
of probation. The defendant was released from incar-
ceration on June 12, 2014, and placed on probation. As
a condition of his probation, the defendant was not to
violate the criminal laws of the United States, the state
of Connecticut or any other state or territory.
‘‘On November 22, 2015, as a result of an incident at
a Dunkin’ Donuts in New Haven, the defendant was
arrested and charged with attempt to commit robbery
in the first degree in violation of General Statutes
§§ 53a-49 and 53a-134, threatening in the second degree
in violation of General Statutes [Rev. to 2015] § 53a-62
and breach of the peace in the second degree in viola-
tion of General Statutes § 53a-181. Following the defen-
dant’s arrest, his probation officer, Ada Casanova, on
December 3, 2015, applied for an arrest warrant on the
ground that the defendant had violated a condition of
his probation. The next day, the application was granted
and the arrest warrant was issued. The defendant
denied the violation of probation charge and, on Febru-
ary 28, 2017, filed a motion to suppress the one-on-one
showup identification that occurred shortly after the
alleged incident on the ground that the identification
procedure was unnecessarily suggestive.’’ Id., 415–16.
‘‘On May 23, 2017, the [trial] court held a hearing on
the defendant’s motion to suppress.’’ Id., 416. ‘‘During
the hearing . . . [Jason] Santiago [testified] that, on
November 22, 2015, he was an officer with the New
Haven Police Department and that, at sometime
between 6 and 6:30 a.m., he was dispatched to the area
of 291 Ferry Street in New Haven, following a report
that a patron at a Dunkin’ Donuts had been robbed.
Santiago was informed that the victim, Welch, had
described the suspect as a Hispanic male, with a tattoo
under his eye, wearing dark clothing. Upon his arrival
at the Dunkin’ Donuts, Santiago entered the store with
another officer and saw the defendant ‘causing a distur-
bance.’ After the officers entered the store, the defen-
dant went into the bathroom, and the store employees
indicated that they wanted the individual removed from
the premises. Santiago knocked on the bathroom door
and ordered the defendant to come out, but he did
not comply. Santiago opened the door and saw the
defendant ‘just standing there.’ Immediately, Santiago
noticed that the defendant was a Hispanic male, with
a tattoo under his eye, dressed in dark clothing. The
defendant was detained, handcuffed and placed in the
back of one of the police cruisers in the parking lot.’’3
Id., 419.
‘‘After he had detained the defendant, Santiago went
to Welch’s home and took his statement. Welch told the
officer that ‘he was at Dunkin’ Donuts and somebody
attempted to rob him by indicating that [he] had a gun.’
Welch also indicated in his statement that, if he saw
the defendant again, he would be able to identify him.
Accordingly, Santiago and Welch went back to the Dun-
kin’ Donuts to conduct a one-on-one showup identifica-
tion of the defendant. When they arrived in the parking
lot, Santiago asked officers to remove the defendant
from the police cruiser to have him stand next to the
vehicle. Santiago then aimed the spotlight on his cruiser
directly at the defendant. The moment that Welch saw
the defendant, he stated ‘without a doubt . . . this is
the [individual] who tried to rob me at gunpoint.’ Santi-
ago further testified that the identification of the defen-
dant occurred within approximately twenty minutes of
the officer’s initial arrival at the Dunkin’ Donuts and
approximately forty-five minutes after Welch first had
reported the incident to the police.’’ Id., 419–20.
The trial court concluded that, although the identifi-
cation procedure that the police used was suggestive,
it was not unnecessarily suggestive. The court reasoned
that ‘‘confrontations like this are not unnecessary
because it’s prudent for the police to provide the victim
with an opportunity to identify the assailant while the
memory of the incident is still fresh and because it’s
necessary to allow the police to eliminate quickly any
innocent parties [and] to continue the investigation with
. . . minimum delay if the victim excludes the defen-
dant as a suspect or is unable to identify him. . . .
[T]hat is the case here.’’ (Citation omitted.) After the
court ruled on the defendant’s motion to suppress, the
hearing on the defendant’s violation of probation charge
commenced.
‘‘During the violation of probation hearing, the court
heard testimony from three witnesses . . . Welch, Cas-
anova, and the first assistant clerk for the judicial dis-
trict of New Haven, and also incorporated and consid-
ered Santiago’s testimony from the earlier hearing on
the motion to suppress. Following argument, the court
found that the state had proven, by a preponderance
of the evidence, that the defendant . . . violated his
probation when ‘he accosted . . . Welch at the Dunkin’
Donuts . . . and threatened him in various verbal ways
and, at one point, displayed in a threatening manner a
. . . weapon with a black handle . . . and chased . . .
Welch a great distance . . . causing . . . Welch a
great and very understandable fear.’ Although the court
concluded that there was insufficient evidence to sup-
port a finding that the defendant had committed robbery
or attempted robbery, it determined that the evidence
was sufficient to support a finding that the defendant
had committed an act of threatening in the second
degree in violation of § 53a-62 (a) (1). The court revoked
the defendant’s probation and sentenced him [as pre-
viously indicated] . . . .’’ State v. Ruiz, supra, 188
Conn. App. 416–17.
The defendant appealed to the Appellate Court from
the judgment of the trial court, claiming, inter alia, that
the trial court should have granted his motion to sup-
press Welch’s identification because the showup proce-
dure employed by the police was unnecessarily sugges-
tive, and, as a result, the identification was unreliable.
See id., 417. The Appellate Court concluded that,
although the procedure was ‘‘to some degree sugges-
tive’’; id., 421; it was not unduly so ‘‘inasmuch as there
was an exigency to provide Welch with an opportunity
to identify the defendant while his memory of the inci-
dent was still fresh and to assist the police in determin-
ing whether they had apprehended the correct individ-
ual.’’ Id., 422. Accordingly, the Appellate Court affirmed
the judgment of the trial court. Id., 426.
On appeal to this court, the defendant maintains that
the Appellate Court incorrectly concluded that the chal-
lenged identification was not unnecessarily suggestive.
In support of this contention, the defendant notes that
the police transported Welch back to the Dunkin’
Donuts, the scene of the crime, where the defendant,
the sole subject of the identification procedure, was
seated in a police cruiser located in the rear of the
parking lot. Welch watched as the defendant, in hand-
cuffs and flanked by police officers, was removed from
the cruiser and directed to stand next to it while one
of the officers shone a bright spotlight directly on him.
The record, moreover, contains no indication that the
police ever cautioned Welch that the person he had
been asked to view may or may not have been the
perpetrator. The defendant also asserts that any legiti-
mate interest the police may have had in promptly ascer-
taining whether Welch could identify the defendant as
his assailant was outweighed by the highly prejudicial
nature of the showup identification procedure, a proce-
dure that clearly reflected the belief of the investigating
officers that the suspect in their custody was the person
who had accosted and threatened Welch. Finally, the
defendant asserts that Welch’s identification of him was
unreliable. His primary argument in support of this
claim is that, because Santiago, rather than Welch, testi-
fied at the hearing on the defendant’s motion to sup-
press Welch’s identification, there is an insufficient
credible basis in fact to conclude that, under all of the
circumstances, that identification was reliable.4
The state contends that the Appellate Court properly
determined that the trial court was correct in conclud-
ing that the identification procedure at issue was not
unnecessarily suggestive and, therefore, passes muster
under the due process clause of the fourteenth amend-
ment. Although urging us to affirm the judgment of the
Appellate Court on that ground, the state also maintains
that, even if we were to conclude that the identification
procedure was unnecessarily suggestive, it nevertheless
was reliable.5 We need not decide whether that proce-
dure, although obviously suggestive, was unnecessarily
suggestive, because, for the reasons set forth in this
opinion, we conclude that Welch’s identification of the
defendant was reliable.6 Accordingly, the defendant
cannot prevail on his claim that the trial court improp-
erly declined to suppress the identification.7
 ‘‘The test for determining whether the state’s use of
an [allegedly] unnecessarily suggestive identification
procedure violates a defendant’s federal due process
rights derives from the decisions of the United States
Supreme Court in Neil v. Biggers, 409 U.S. 188, 196–97,
93 S Ct. 375, 34 L. Ed. 2d 401 (1972), and Manson v.
Brathwaite, 432 U.S. 98, 113–14, 97 S. Ct. 2243, 53 L.
Ed. 2d 140 (1977). As the court explained in Brathwaite,
fundamental fairness is the standard underlying due
process, and consequently, ‘reliability is the linchpin in
determining the admissibility of identification testi-
mony . . . .’ Id., 114. Thus, ‘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.’ State v. Marquez,
291 Conn. 122, 141, 967 A.2d 56, cert. denied, 558 U.S.
895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).’’ State v.
Harris, 330 Conn. 91, 101, 191 A.3d 119 (2018).
With respect to the first prong of this analysis,
‘‘[b]ecause, [g]enerally, [t]he exclusion of evidence from
the jury is . . . a drastic sanction, [it] . . . is limited
to identification testimony [that] is manifestly suspect
. . . . [Consequently] [a]n identification procedure is
unnecessarily suggestive only if it gives rise to a very
substantial likelihood of irreparable misidentification.
. . . We have recognized that [ordinarily] a one-to-one
confrontation between a [witness] and the suspect pre-
sented . . . for identification is inherently and signifi-
cantly suggestive because it conveys the message to the
[witness] that the police believe the suspect is guilty.’’
(Citation omitted; internal quotation marks omitted.)
State v. Revels, 313 Conn. 762, 772–73, 99 A.3d 1130
(2014), cert. denied, 574 U.S. 1177, 135 S. Ct. 1451, 191
L. Ed. 2d 404 (2015); see also Neil v. Biggers, supra, 409
U.S. 198 (‘‘[s]uggestive confrontations are disapproved
because they increase the likelihood of misidentifica-
tion, and unnecessarily suggestive ones are condemned
for the further reason that the increased chance of
misidentification is gratuitous’’). For this reason, when
not necessary, ‘‘the presentation of a single suspect to
a witness by the police (as opposed to a lineup, in which
several individuals are presented to the police, only one
of whom is the suspect) . . . has . . . been widely
condemned . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Brisco v. Ercole, 565 F.3d 80, 88
(2d Cir.), cert. denied, 558 U.S. 1063, 130 S. Ct. 739, 175
L. Ed. 2d 542 (2009).
It is well established, however, that the use of a one-
on-one showup identification procedure does not
invariably constitute a denial of due process, as it may
be justified by exigent circumstances. See, e.g., State
v. Revels, supra, 313 Conn. 773; State v. Wooten, 227
Conn. 677, 686, 631 A.2d 271 (1993). Thus, a showup
identification procedure conducted in close temporal
and geographic proximity to the offense may be deemed
reasonable, and, therefore, permissible for federal due
process purposes, when ‘‘it was prudent for the police
to provide the victim with the opportunity to identify
[his] assailant while [his] memory of the incident was
still fresh . . . and . . . [the procedure] was neces-
sary to allow the police to eliminate quickly any inno-
cent parties so as to continue the investigation with a
minimum of delay, if the victim excluded the defendant
as a suspect or was unable to identify him.’’8 (Citation
omitted; internal quotation marks omitted.) State v.
Wooten, supra, 227 Conn. 686; accord State v. Ledbetter,
275 Conn. 534, 551, 881 A.2d 290 (2005) (overruled on
other grounds by State v. Harris, 330 Conn. 91, 191
A.3d 119 (2018)), cert. denied, 547 U.S. 1082, 126 S. Ct.
1798, 164 L. Ed. 2d 537 (2006). Moreover, when the
police take prompt steps to identify a detained suspect
in order to achieve these objectives, the use of hand-
cuffs and illumination does not necessarily render the
identification unduly suggestive.9 E.g., United States v.
Bautista, 23 F.3d 726, 730 (2d Cir.) (‘‘The fact that
the suspects were handcuffed, in the custody of law
enforcement officers, and illuminated by flashlights
. . . did not render the [pretrial] identification proce-
dure unnecessarily suggestive. . . . Because the on-
the-scene identification was necessary to allow the offi-
cers to release the innocent, the incidents of that identi-
fication were also necessary.’’), cert. denied sub nom.
Minier-Contreras v. United States, 513 U.S. 862, 115
S. Ct. 174, 130 L. Ed. 2d 110 (1994); see also State v.
Revels, supra, 767, 774 (showup identification proce-
dure was not unnecessarily suggestive even though
identification took place while ‘‘the defendant was
standing in the middle of the road, handcuffed and
surrounded by uniformed police officers . . . [one of
whom] directed [a] spotlight on his cruiser toward the
[defendant]’’).
We need not opine on the propriety of the procedure
used by the police in the present case, however,
because, even if we were to assume, contrary to the
conclusion of the Appellate Court, that it was unneces-
sarily suggestive, Welch’s identification of the defen-
dant was reliable under all of the relevant circum-
stances.10 ‘‘As mandated in Neil v. Biggers, supra, 409
U.S. 188, and reiterated by the court in Manson v. Brath-
waite, supra, 432 U.S. 98, for federal constitutional pur-
poses, we determine whether an identification resulting
from an unnecessarily suggestive procedure is reliable
under the totality of the circumstances by comparing
the corrupting effect of the suggestive identification
against factors including the opportunity of the witness
to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of his prior description
of the criminal, the level of certainty demonstrated at
the [identification], and the time between the crime and
the [identification]. Manson v. Brathwaite, supra, 114,
citing Neil v. Biggers, supra, 199–200.’’ (Internal quota-
tion marks omitted.) State v. Harris, supra, 330 Conn.
108. The relevant factors in the present case support
the conclusion that Welch’s identification was reliable.
Before reviewing those factors, however, we recite
Welch’s testimony at the violation of probation hearing,
as summarized in the opinion of the Appellate Court,
because it bears on the issue of reliability.11 ‘‘[At that]
hearing, Welch testified that, on [the day in question],
he was at a Dunkin’ Donuts in New Haven, sitting at a
table and drinking a coffee, when the defendant, who
was sitting at a nearby table, made him ‘feel uncomfort-
able.’ Welch stood up and went to exit the store. The
defendant followed him and cut him off at the door.
The defendant then approached Welch, made him feel
uneasy and threatened him. When asked to explain what
happened next, Welch stated: ‘So, what happened next
is he threatened me, and I didn’t take kindly to that.
So I—he lunged at me, and when I went to approach
to defend myself, he jumped back and lifted up his shirt,
and I saw a black handle in his waist, and he [said] we
can do this right, let’s not do it here, let’s go over here.’
Welch backed his way out of the Dunkin’ Donuts into
the parking lot, and the defendant continued to follow
him. At some point, two bystanders yelled at the defen-
dant to stop. He turned around and told one of them
to be quiet. While the defendant was turned around,
Welch took off running. The defendant chased after
[Welch] until [he] reached a police barracks substation
and was able to hide behind a brick wall. When Welch
no longer saw the defendant following him, he ran back
to his residence and called the police. Welch testified
that he told the police that an individual had confronted
him at a Dunkin’ Donuts and then chased after him
through the parking lot and nearby streets. He could
not remember whether he had told the police that the
individual had attempted to rob him. After he called
the police, an officer responded to his home within
approximately one-half hour. Welch provided a state-
ment to the officer, and, together, they went back to
the Dunkin’ Donuts to ascertain whether Welch could
identify an apprehended individual as the same person
who had threatened and chased him earlier that morn-
ing.’’ State v. Ruiz, supra, 188 Conn. App. 423–24.
Turning to the considerations pertinent to the issue
of the reliability of Welch’s identification, we agree with
the state that each of them militates in favor of a deter-
mination of admissibility. With respect to the first two
factors, namely, Welch’s opportunity to observe the
suspect and his degree of attentiveness, it is apparent
that Welch had a good opportunity to view the defen-
dant at close range while in Dunkin’ Donuts, both when
they were seated at nearby tables—before the defen-
dant engaged in any physically assaultive behavior
toward Welch—and, again, when the defendant con-
fronted the defendant, face-to-face, at the door. Welch
also was able to observe the defendant outside the
store, albeit at a somewhat greater distance, when the
defendant pursued Welch as he attempted to flee.
Welch’s testimony further indicates that he was atten-
tive to the defendant because of the defendant’s strange
and disturbing focus on him; in fact, Welch was so
keenly aware of the defendant’s unusual reaction to
him that he decided to leave Dunkin’ Donuts.12 With
respect to the third relevant factor, the accuracy of
Welch’s original description of the defendant, Welch
gave the police an accurate description of the defendant
within moments of the incident, reporting that the sus-
pect was a Hispanic male in dark clothing with a highly
distinctive facial tattoo under his eye. As for Welch’s
level of certainty with respect to his identification, he
told the police that he could identify the suspect, and,
when given the opportunity, he did so immediately and
with certainty. Finally, the identification was conducted
promptly, less than one hour after Welch’s initial
encounter with the defendant.
We are fully satisfied that, considering the totality of
the circumstances, Welch’s identification of the defen-
dant was reliable. Indeed, the defendant has identified
no facts or circumstances to support a different conclu-
sion. Consequently, we agree with the Appellate Court
that the trial court properly denied the defendant’s
motion to suppress Welch’s identification because its
use by the state in connection with the defendant’s
violation of probation hearing did not violate the defen-
dant’s rights under the due process clause of the four-
teenth amendment to the United States constitution.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** December 11, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The due process clause of the fourteenth amendment to the United
States constitution provides in relevant part: ‘‘No State shall . . . deprive
any person of life, liberty or property, without due process of law . . . .’’
As we discuss more fully hereinafter, a police identification procedure
will be deemed to violate principles of federal due process only if the
procedure was both unnecessarily suggestive and the resulting identification
was unreliable. See, e.g., State v. Harris, 330 Conn. 91, 101, 191 A.3d 119
(2018).
2
On appeal to the Appellate Court, the defendant also maintained that
the trial court incorrectly found that he had violated his probation and
abused its discretion in revoking his probation. State v. Ruiz, supra, 188
Conn. App. 422, 425. Those claims are not the subject of this appeal.
3
‘‘The defendant was patted down for weapons, given that the initial
complaint indicated that a robbery had occurred. No weapons, however,
were located on the defendant’s person or in the vicinity of the Dunkin’
Donuts.’’ State v. Ruiz, supra, 188 Conn. App. 419 n.2.
4
As we noted previously and discuss more fully hereinafter, Welch did
testify at the violation of probation hearing.
5
After the defendant filed his appeal, we granted the state’s motion for
permission to raise an alternative ground of affirmance, namely, that the
due process standards for the admission of identification evidence at a
criminal trial do not apply in the context of a probation revocation proceed-
ing, an issue that this court has not yet resolved. See State v. Daniels, 248
Conn. 64, 80 n.16, 726 A.2d 520 (1999), overruled in part on other grounds
by State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005). In light of our
conclusion that the defendant is not entitled to the relief he seeks because
Welch’s identification was reliable, we need not address the state’s alterna-
tive ground for affirmance.
6
We note that we certified the following issue: ‘‘Did the Appellate Court
correctly conclude that the one-on-one showup identification was not unnec-
essarily suggestive?’’ State v. Ruiz, 331 Conn. 915, 204 A.3d 703 (2019). As
we have explained, however, both parties have briefed the issue of whether
Welch’s identification was reliable. Moreover, the defendant asserts that the
record is adequate for our resolution of the reliability issue, even though
the issue was not pursued in the trial court, and we agree. Although the
state questions the adequacy of the record, it has identified no additional
evidence that it would have adduced if the reliability of the identification
had been fully litigated in the trial court. Our consideration of the issue will
in no way prejudice the state because we agree with the state that the
identification was reliable. We are therefore free to resolve the appeal on
that basis.
7
Before addressing the reliability issue, we first consider the state’s con-
tention that this appeal must be dismissed as moot. The state claims that,
because the defendant did not litigate the issue of reliability in the trial
court and, consequently, never received a ruling by the trial court on that
issue, he cannot prevail on appeal, even if we were to conclude that the
Welch’s identification was unnecessarily suggestive. In other words, in the
state’s view, because the defendant is required to prove both that the identifi-
cation procedure was unnecessarily suggestive and that the identification
was unreliable; see footnote 1 of this opinion; he would not be entitled to
any relief from this court in view of the fact that he has not pursued a
claim of unreliability, thereby rendering the appeal moot. See, e.g., State v.
Jevarjian, 307 Conn. 559, 563–67, 58 A.3d 243 (2012) (because resolution
of certified issue would not affect underlying judgment against defendant,
appeal was moot, and court would not reach certified issue). The state’s
claim of mootness fails because it does not account for the fact that, even
though the defendant apparently did not raise a claim of unreliability in the
trial court, he did so in the Appellate Court, as permitted under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)—which set forth the
requirements for claims of unpreserved constitutional error—and, despite
the fact that our grant of certification was limited to the issue decided by
the Appellate Court, that is, whether the identification was unnecessarily
suggestive, the defendant has also raised the issue of reliability in this court.
Indeed, even if he had not raised the issue of reliability in this court, the
fact that he did so in the Appellate Court would require us to remand the
case to that court for resolution of that issue in the event we decided the
certified question in his favor. Thus, although we ultimately agree with the
state that the defendant cannot prevail on the merits of his unreliability
claim, this appeal is not moot.
8
Consistent with these considerations regarding the necessity of a one-
on-one showup identification procedure, we have stated that, ‘‘when . . .
faced with the question of whether an exigency [sufficient to justify the
procedure] existed, we have considered such factors as whether the defen-
dant was in custody, the availability of the victim, the practicality of alternate
procedures and the need of police to determine quickly if they are on the
wrong trail. . . . We have also considered whether the identification proce-
dure provided the victim with an opportunity to identify his assailant while
his memory of the incident was still fresh.’’ (Internal quotation marks omit-
ted.) State v. Revels, supra, 313 Conn. 773.
9
Such a procedure likely will be considered unnecessarily suggestive,
however, if the police engage in conduct that is needlessly or gratuitously
prejudicial. See, e.g., Velez v. Schmer, 724 F.2d 249, 250 (1st Cir. 1984)
(during one-on-one showup identification procedure, police said to wit-
nesses, ‘‘ ‘[t]his is him, isn’t it?’ ’’).
10
We decide the case on this alternative basis because, in our view, Welch’s
identification of the defendant was quite clearly reliable and, therefore,
provides a firm basis on which to reject the defendant’s claim without the
need to address whether the identification procedure that the police used,
although suggestive, was not unnecessarily so. We do not address the issue
of whether the identification procedure was unnecessarily suggestive in
light of our resolution of the appeal under the reliability prong of the due
process test.
11
Although this testimony occurred during the portion of the hearing
concerning the violation of probation rather than the motion to suppress,
we may consider it in determining the propriety of the trial court’s denial
of the defendant’s motion to suppress Welch’s identification. See, e.g., State
v. Reynolds, 264 Conn. 1, 42 n.30, 836 A.2d 224 (2003) (reviewing court may
consider testimony adduced both at trial and at suppression hearing when
determining propriety of trial court’s ruling on motion to suppress), cert.
denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
12
It also bears noting that the defendant himself believed that Welch was
staring at him.