State v. Ruiz

• Citation: 188 Conn.App. 413,204 A.3d 798
• Decision Date: 12 March 2019
• Docket Number: AC 40668
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose RUIZ

188 Conn.App. 413

204 A.3d 798

STATE of Connecticut

v.Jose RUIZ

AC 40668

Appellate Court of Connecticut.

Argued January 2, 2019

Officially released March 12, 2019

Mary Boehlert, assigned counsel, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Brian K. Sibley, Jr., senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Alvord and Beach, Js.

DiPENTIMA, C.J.

The defendant, Jose Ruiz, appeals from the judgment of the trial court revoking his probation and imposing a sentence of seven and one-half years incarceration, execution suspended after four years, and three years of probation. On appeal, the defendant claims that the trial court (1) improperly denied his motion to suppress the one-on-one showup identification on the ground that the identification procedure was not unnecessarily suggestive, (2) improperly found that he violated his probation, and (3) abused its discretion in revoking his probation. We are not persuaded and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are necessary for 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 incarceration, execution suspended after fifty-four months, and three years of probation. The defendant was released from incarceration 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 § 53a-62 and breach of peace in the second degree in violation of General Statutes § 53a-181. Following the defendant'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 February 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.

On May 23, 2017, the court held a hearing on the defendant's motion to suppress. Following testimony from one witness, Police Officer Jason Santiago, and oral argument, the court concluded that although the identification procedure used by the police was suggestive, it was not "unnecessarily suggestive." After the court ruled on the defendant's motion, the hearing on the defendant's violation of probation charge commenced.

During the violation of probation hearing, the court heard testimony from three witnesses, Lawrence Welch, Casanova, and the first assistant clerk for the judicial district of New Haven, and also incorporated and considered 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 had 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 support 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 § 53a-62 (a) (1). The court revoked the defendant's probation and sentenced him to seven and one-half years incarceration, execution suspended after four years, and three years of probation. This appeal followed. Additional facts will be set forth as needed.

I

The defendant claims that the trial court improperly denied his motion to suppress the one-on-one showup identification because the identification procedure was unnecessarily suggestive and unreliable. We conclude that the identification procedure was not unnecessarily suggestive.

We begin our analysis by setting forth our standard of review. "The test for determining whether the state's use of an 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 testimony .... 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 identification was nevertheless reliable based on examination of the totality of the circumstances.... Furthermore, [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.... Nevertheless, [w]e will reverse the trial court's ruling [on evidence] only [when] there is an abuse of discretion or [when] an injustice has occurred ... and we will indulge in every reasonable presumption in favor of the trial court's ruling.... Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of [fact bound] 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.... Finally, the burden rests with the defendant to establish both that the identification procedure was unnecessarily suggestive and that the resulting identification was unreliable." (Citations omitted; internal quotation marks omitted.)

State v. Harris , 330 Conn. 91, 101–102, 191 A.3d 119 (2018).¹

The following additional facts are relevant to this claim. During the hearing on the defendant's motion to suppress, Santiago stated that on November 22, 2015, he was an officer with the New Haven Police Department and that, at sometime between 6 a.m. 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 disturbance." After the officers entered the store, the defendant 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.²

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 Dunkin' Donuts to conduct a one-on-one showup identification 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." Santiago further testified that the identification of the defendant 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.

The defendant claims that the trial court improperly found that the one-on-one showup identification procedure was not unnecessarily suggestive because the actions by the police in this instance served to convince Welch that the defendant was the individual who had accosted and chased him. Specifically, the defendant contends that because he was detained in a police cruisier, in an area of the parking lot "away from any general population," Welch was presented with an initial impression of the defendant as a criminal.

Furthermore, the defendant argues that because he was made to stand next to a police cruiser, in handcuffs, flanked by police officers, with a...