State v. Marquez, 17663.

CourtSupreme Court of Connecticut
Citation967 A.2d 56,291 Conn. 122
Decision Date14 April 2009
Docket NumberNo. 17663.,17663.
PartiesSTATE of Connecticut v. Julian MARQUEZ.
967 A.2d 56
291 Conn. 122
STATE of Connecticut
No. 17663.
Supreme Court of Connecticut.
Argued September 3, 2008.
Decided April 14, 2009.

[967 A.2d 59]

Conrad Ost Seifert, special public defender, for the appellant (defendant).

[967 A.2d 60]

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellee (state).



291 Conn. 124

The defendant, Julian Marquez, appeals from the judgment of conviction, rendered after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c, two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a)(2), and one count of attempt to commit robbery in the first degree in violation of § 53a-134 (a)(2) and General Statutes § 53a-49. On appeal, the defendant claims that the trial court's denial of his motion to suppress two eyewitness identifications violated his right to due process of law under both the fourteenth amendment to the United States constitution1 and article

291 Conn. 125

first, § 8, of the Connecticut constitution.2 Specifically, the defendant challenges the trial court's ruling that those identifications were reliable under the totality of the circumstances test set forth by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977),3 even though the court found that the police had used an unnecessarily suggestive identification procedure. The defendant also claims that, even if this court concludes that the trial court ruled correctly under existing law, we nevertheless should exercise our supervisory authority to mandate the adoption and use of new and purportedly more accurate identification procedures.4

The state urges this court to uphold the trial court's denial of the defendant's motion to suppress the identifications.

291 Conn. 126

Specifically, the state argues that the trial court correctly concluded that the identifications

967 A.2d 61

were reliable under the totality of the circumstances and asserts that there is no basis for this court to exercise its supervisory authority to mandate new identification procedures.5 As an alternative ground for affirmance, the state also argues that the trial court improperly concluded that the identification procedures used by the police were unnecessarily suggestive.6 We agree with the state and affirm the judgment of the trial court on this alternative ground.

In its memorandum of decision on the defendant's motion to suppress, the trial court made the following findings of fact. On the evening of Friday, December 19, 2003, Mark Clement and his friend, Christopher Valle, were visiting at the apartment of a mutual friend, Miguel Delgado, Jr., at 134 Babcock Street in Hartford. The three men, along with various others, socialized regularly on weekends at Delgado's apartment. The apartment itself was on the third floor of the building and could be accessed by visitors through a front door that opened into a lighted common hallway at the top of the interior staircase.

Delgado's apartment was relatively small, consisting of a short interior hallway leading from the front door

291 Conn. 127

directly into the living room, a small game room adjacent to the living room, a kitchen to the rear of the living room and a bedroom off of the kitchen. On the evening of December 19, the living room was illuminated only indirectly by light emanating from the kitchen and game room. There was a couch on the back wall of the living room that faced the front door.

After arriving at the apartment, Delgado, Clement, Valle and another man named Amauri Escobar primarily remained in the game room playing video games and drinking alcoholic beverages.7 While several other people visited the apartment intermittently throughout the night, only these four men were present just prior to the robbery.8

At around midnight on December 20, as Valle was preparing to leave the apartment, he exited the game room to say goodnight to Delgado, who was standing just inside the front door attempting to get rid of two men who stood facing him in the common hallway. As Valle approached the front door, one of the strangers, a Hispanic male in his early twenties wearing braids and black clothing, pointed a handgun directly at him and entered the apartment, forcing Valle and Delgado backward into the living room and ordering them to sit on the couch. Shortly

967 A.2d 62

thereafter, the intruders entered the game room, announced their presence and ordered Clement and Escobar to join Valle and Delgado. Once everyone returned to the living room, the intruders were only one or two feet away from their victims for a period of several minutes. Importantly, both Valle and Clement had multiple opportunities to see the faces of

291 Conn. 128

the perpetrators, particularly the gunman. Valle initially saw the gunman in the brightly lit common hallway while Delgado was trying to get rid of him. Clement observed the gunman's face when the gunman entered the lighted game room and announced that "it was a stickup." Further, while Valle and Clement were seated on the couch, they both viewed the intruders' faces with the light from the kitchen and the game room providing illumination.

The intruders then ordered all of them to surrender their money and jewelry, which Clement, Valle and Escobar did promptly. Delgado, however, offered only a small amount of marijuana, insisting that that was all he had. The intruders, who were dissatisfied with this offer, apparently were convinced that Delgado had money and drugs stashed elsewhere in the apartment, and demanded to be taken to inspect the back bedroom. Delgado, who was now standing to the side of the couch and blocking the entrance to the kitchen, refused. Delgado suddenly rushed at the gunman and grabbed his arm. A struggle ensued, during which Delgado forced the gunman back toward the front of the apartment, and a shot rang out. Valle jumped to his feet from his position on the couch and began to head for the perceived safety of the game room. He then heard a second shot and saw Delgado fall to his knees on the floor. Valle made it to the game room with Clement behind him, while Escobar apparently escaped out of the rear exit of the apartment.

Valle heard a third shot fired, and, once it was apparent that the intruders had fled, he eventually emerged from the game room. Feeling around on the floor in the relative darkness of the hall near the front door, Valle discovered Delgado lying in a pool of blood. When he turned the living room light on, Valle realized that Delgado was critically wounded and called the police. Immediately after the incident, both Valle and Clement

291 Conn. 129

expressed to police investigators their confidence that they could identify the gunman.

On December 23, 2003, while making his regular visit to his parole officer, Valle was startled to observe the defendant at the office of the parole officer, immediately recognizing him as the gunman who had robbed him four days earlier. Valle reported his observation to personnel on duty in the office. This information was relayed to Detective Patricia Beaudin of the Hartford police department, who was leading the investigation into the incident. On the basis of this information, a photographic array was produced consisting of photographs of eight men fitting the description that Valle had provided, including that of the defendant.

Beaudin and her partner, Detective Ezequiel Laureano, contacted Valle and asked him to come to the police station to view the photographs in the array. Prior to having him look at the photographic array, Beaudin instructed Valle simply to look at the photographs and tell her if he recognized anyone, and that it was fine if he did not. Neither Beaudin nor Laureano told Valle that he had to select a photograph, and they did not indicate in any way which photograph he should pick. In addition, consistent with the detectives' instructions, there was a notice prominently printed at the bottom of the photographic array that provided: "You have been asked to look at this group of photographs. The fact that

967 A.2d 63

they are shown to you should not influence your judgment. You should not conclude or guess that the photographs contain the person who committed the offense under investigation. 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 this case with other witnesses nor indicate in any way that you have, or have not identified someone."

291 Conn. 130

Valle immediately selected the photograph depicting the defendant, indicating that he was sure that the individual pictured was the gunman. Although acknowledging some superficial differences between the defendant's photograph and the others in the array, Valle denied that such discrepancies played any roll in his choice.

Four days later, Beaudin contacted Clement and requested that he view the photographic array that Valle had previously viewed.9 The detectives followed an almost identical procedure with Clement, and either read aloud or pointed out the same prominent notice at the bottom of the board on which the photographic array was mounted. Clement believed that the array contained photographs of known robbers but did not know if photographs of either of the persons who had robbed him would be included in the display. He further indicated that, although neither of the detectives pressured him to select any photograph or indicated in any way that he should choose a particular photograph, he did feel that a suspect was probably in the array and that he should "pick...

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