Opinion
FBTCR17294647T
09-25-2018
STATE of Connecticut v. Xavier RIVERA
UNPUBLISHED OPINION
OPINION
Kavanewsky, J.
The defendant, Xavier Rivera, is charged with the crimes of murder and related offenses arising from the shooting death of one Miguel Rivera on December 24, 2016 in the City of Bridgeport. On May 9, 2018, the defendant filed a motion to suppress any in-court identification of him as the perpetrator by a potential state’s witness, Jennifer Nieves. The court held an evidentiary hearing thereon on September 19, 2018. The court finds the following facts for purposes of this motion.
On December 24, 2016, at approximately 12:30 AM, Miguel Rivera (hereinafter the "victim") was shot and killed in the general vicinity of 287 North Avenue in Bridgeport. A police investigation ensued. In the course of that investigation, Jennifer Nieves was identified as a possible witness to the shooting. Nieves was contacted and she agreed to go to the police department for an interview.
The interview occurred on January 17, 2017. It was primarily conducted by Detective Cintron. Nieves provided Cintron the following account. In the early morning hours of December 24, she and others were in a parking lot adjacent to an AutoZone store located at 287 North Avenue. Nieves was in the front passenger seat of a parked car facing in the direction of North Avenue. At approximately 12:30 AM, Nieves noticed an individual (hereinafter the "suspect") in the parking lot who was acting strangely. The suspect appeared to be looking for a specific individual, later determined to be the victim. She saw the suspect peering into several cars, including her own, in an attempt to find this individual. She described the suspect as a light skinned Hispanic male, with a tall, skinny build and a "pock marked" face. He was wearing blue jeans and a white "hoodie."
At some point soon thereafter, Nieves noticed the suspect and two other individuals, all armed with guns, near the AutoZone store to the rear of her car. They were confronting the victim. They forcibly directed the victim across the parking lot and then across North Avenue. As they were doing so, one of the individuals shouted out, "Fall back!" and fired a shot. Nieves and others nearby rushed to leave the scene. As this was happening she heard more shots being fired.
During the interview Nieves was asked to attempt an identification of the suspect by use of a photo lineup. Another detective had assembled a collection of eight black and white photographs, one of which was a photograph of the suspect. The identification procedure was then administered by Detective Heanue, with Detective Cintron still present. Cintron knew the identity of the suspect and that his photo was included within the array; it appears that Heanue did not know whether or not the suspect’s photo was in the array.
Heanue read Nieves the instructions required by General Statutes § 54-1p(c)(3) which pertain to the instructions to be given to an eyewitness prior to an identification procedure. However, Heanue did not advise Nieves of that portion of the advisement which states "the perpetrator may or may not be among the persons in the photo lineup ..." § 54-1p(c)(3)(D). The court notes that there is nothing to suggest that the failure to provide that instruction was anything other than inadvertent.
Nieves viewed the eight photographs one at a time. As directed, she did not say anything as she was doing this. After going through all eight photographs, she said that the persons depicted therein did not look familiar to her. Detective Cintron asked Nieves if she was sure of that; she said that she was. Cintron offered her the opportunity to go through the photos a second time. Nieves then went through the photographs again in the same manner. When she finished, she said "I don’t know, I don’t see the guy." Cintron then said, "So, nobody here really jumps at you, right?" Almost immediately, Nieves began to slide the top photo off of the array, exposing and looking at the second photo. This was, in fact, the photo of the defendant. At that moment, Detective Cintron said to Nieves, "That guy jumps at you." She murmured an assent. Cintron asked her "Why does he jump at you?" Nieves answered, "The eyes." Cintron said that that was what they had wanted her to look at, explaining that other facial features could change.
The detectives then asked Nieves how certain she felt about her identification. She said "certain," "about 65 to 70%" certain. The detectives commented that that was "pretty certain." They then asked her to initial the photograph, which she did, and to note her level of certainty in the "confidence statement" section of the written instructions. Nieves wrote: "Im (sic) positive that this is the suspect because of his eyes. guy number 4." (Each of the eight photographs had been randomly numbered, and the number 4 had been put on the photograph of the defendant.) This essentially concluded the interview and the identification process.
The defendant has moved to suppress any in-court identification by Nieves that he was the perpetrator of the crime. More specifically, the defendant maintains that any in-court identification would necessarily be the product of a suggestive out-of-court identification procedure. He maintains that any in-court identification would therefore violate his due process rights under the federal and Connecticut constitutions.
Any determination as to whether a pretrial identification procedure has violated a defendant’s due process rights must be made on an ad hoc basis. Until recently, the court was to engage in a two-pronged inquiry. The court first had to determine whether the particular identification procedure employed was unnecessarily suggestive. If it was not, then the inquiry was over. However, if the court were to decide that the procedure was unnecessarily suggestive, then the court was required to further determine whether the identification was nevertheless reliable under the "totality of the circumstances." State v. Marquez, 291 Conn. 122, 141-42, 967 A.2d 56, cert. denied, 558 U.S. 895 (2009).
In State v. Harris, 330 Conn. 91 (2018), the court articulated a revised framework for the trial court’s analysis. As relevant here, "... to obtain a pretrial hearing, the defendant has the initial burden of offering some evidence that a system variable undermined the reliability of the eyewitness identification ... If the defendant meets this burden, the state must then offer evidence demonstrating that the identification was reliable in light of all relevant system and estimator variables ... If the state adduces such evidence, the defendant must then prove a very substantial likelihood of misidentification ... If the defendant meets that burden of proof, the identification must be suppressed." State v. Harris, supra, 131 (internal citations omitted).
In Harris, the court employed the same definition of "system variables" and "estimator variables" as it had previously set forth in State v. Guilbert, 306 Conn. 218, 236, n.11 (2012). "System variables" are factors, such as lineup procedures, that are within the control of the criminal justice system" and "estimator variables" are factors that stem from conditions over which the criminal justice system has no control and generally arise out of the circumstances under which the eyewitness observed the perpetrator during the commission of the crime, such as lighting, distance or presence of weapon." Harris, supra, 124, n.24 and 25. Further, the Harris court expanded upon the already comprehensive set of "estimator variables" it had identified in Guilbert, supra, 254-55. It approved of an even more expansive listing of these variables as set forth in State v. Henderson, 208 N.J. 208, 291-92, 27 A.3d 872 (2011). State v. Harris, supra, 330 Conn. 124-25, n.26.
In the present case, the defendant does not claim that the photo array itself was inherently suggestive. Rather, he claims that the detectives’ administration of the photo array was impermissibly suggestive. This contention "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 ... It stands to reason that police officers administering a photographic identification procedure have the potential to taint the process by drawing the witness’ attention to a particular suspect. This could occur either through the construction of the array itself or through physical or verbal cues provided by an officer." State v. Griffin, 184 Conn.App. 595 (2018).
The court concludes that the defendant has met his burden of adducing some evidence that a system variable undermined the reliability of the out-of-court identification by Nieves. This conclusion is based upon an aggregate of relevant factors. They include: 1) the failure to advise Nieves that a photograph of the suspect may or may not be included in the array; 2) the inability of Nieves to identify the suspect after two viewings of all of the photographs; 3) stating to Nieves that "that guy (the defendant) jumps out at you; " 4) suggesting to Nieves that, based upon her estimate of certainty of identification, it could be characterized as "pretty certain."
The court does not believe that there was any deliberate effort by law enforcement to prejudice the defendant. The court credits Cintron’s testimony that he felt Nieves may have been afraid to make an identification. However, as stated in Griffin, supra, 184 Conn.App. The court must examine the potential for, and the likelihood of, a tainted identification. In the present case, there is no way of knowing whether or not, absent Cintron’s remark, Nieves would have selected the photograph of the defendant as the perpetrator.
Given this conclusion, the court must determine whether the state has offered evidence demonstrating that the identification was reliable in light of all relevant system and estimator variables. State v. Harris, supra, 330 Conn. 131. The court has previously scrutinized the relevant system variables. In this matter, the significant estimator variables include the following: 1) at the time Nieves saw the perpetrator, she was, by her own admission, intoxicated; 2) Nieves had only a "glance" at the perpetrator; 3) the nearby lighting conditions suggested good illumination, but Nieves stated several times that she had difficulty discerning persons nearby; 4) Nieves had never previously seen the perpetrator. Based upon the foregoing, this court cannot conclude that the identification was reliable in light of all system and estimator variables.
The court acknowledges that many factors to be considered for purposes of the reliability of a witness’s identification and that are articulated in Guilbert, 306 Conn. 218, 237-39 (2012) are not applicable in the present case. However, such factors are not static. Harris, supra, 330 Conn. 121. Further, and importantly, when witness reliability concerns do exist against a backdrop of a suggestive identification procedure, as found here, the court’s concern is heightened.
Therefore, the defendant’s motion to suppress any in-court identification by Jennifer Nieves of the defendant as the perpetrator of the crime is granted.
The defendant’s motion to suppress, and the court’s ruling thereon, relate solely to any in-court identification by Jennifer Nieves. The ruling does not embrace any consideration regarding Nieves testifying to any other matter. If she were called to do so, the court would consider the positions of the parties concerning the same at that time.