Opinion
HHBCR18293403T
06-12-2019
STATE of Connecticut v. Jonathan VELLON
UNPUBLISHED OPINION
OPINION
Dewey, J.
By motion dated February 19, 2019, the defendant moved to suppress a pretrial identification. He argues that the victim of a May 2018 carjacking improperly identified him after viewing a New Britain Police Department Facebook post. The conduct, the defendant maintains, was inherently unreliable and therefore must be suppressed. After a hearing conducted over the course of three days, this court finds that the New Britain Police Department did not arrange the victim’s identification of the defendant. Furthermore, this court finds that the identification was not unnecessarily suggestion. Consequently, the motion to suppress is denied.
Facts of the Case
On May 20, 2018, at approximately 5:00 p.m., Sharlyn Guzman stopped to get gas at a CITGO gas station located on Columbus Boulevard in New Britain, Connecticut. It was a clear, bright afternoon. Ms. Guzman was driving a white Toyota Sienna minivan. Her two granddaughters, aged seven and three, sat in the back seat of the minivan.
Ms. Guzman noticed five young males gathered around a grey Honda Civic. The Honda was parked at an adjacent gas pump. Ms. Guzman had a clear, unobstructed view of the young men. The individuals were less than ten feet from Ms. Guzman. When she first saw the individuals, Ms. Guzman did not consider them a threat.
With her grandchildren still in the backseat Ms. Guzman left her minivan. However, before her feet touched the ground, one of the aforementioned young men grabbed Ms. Guzman and pulled her down. Ms. Guzman was able to view her assailant’s face and body during the assault.
Ms. Guzman’s assailant jumped into the minivan driver seat. A second of the group simultaneously entered the minivan passenger seat. The men then drove away in the minivan at a high rate of speed, travelling west in the eastbound lane of Columbus Boulevard. The Honda Civic and the remaining members of the group followed the minivan. Both cars stopped on Cliff Street in New Britain where the carjackers abandoned Ms. Guzman’s two grandchildren. The minivan then travelled to Hartford where the carjackers evaded a police pursuit.
Approximately an hour after the carjacking Officer Kinahan of the New Britain Police Department took a statement from Ms. Guzman. In that written statement Ms. Guzman identified the person who assaulted her as a 17-19-year-old black male with a long sleeved yellow shirt wearing designer type sunglasses. At the suppression hearing Ms. Guzman testified that she had identified her assailant as Hispanic, someone with a skin tone similar to hers. She further testified that the black male she mentioned in her written statement had been the driver of the Honda Civic and attributed the discrepancy between her written statement and sworn testimony to a misunderstanding by Officer Kinahan. Based on the evidence and testimony provided at the suppression hearing, this court credits Ms. Guzman’s testimony that she had always identified her assailant as Hispanic.
The New Britain Police Department maintains a Facebook page that contains a "Be on the Lookout" (BOLO) announcement. On May 23, 2018 the police department posted a BOLO that contained still photographs of three young men believed to be involved in carjackings in the City of New Britain. The photographs came from video recordings made at the time of those other carjackings. On May 25, 2018, after receiving a text from a friend, Jamie, Ms. Guzman viewed that Facebook page. Upon seeing the BOLO, she immediately identified the defendant as the individual who threw her to the ground and drove off with her minivan. She also recognized another of the individuals in the BOLO photographs as the driver of the Honda Civic. Officer Soucy was not aware of the Facebook BOLO page. He had no influence over the decision to place the BOLO on social media.
"Facebook is a social networking website that allows private individuals to upload photographs and enter personal information and commentary on a password protected ‘profile.’" State v. Eleck, 130 Conn.App. 632, 634 n.1, 23 A.3d 818 (2011), aff’d, 314 Conn . 123, 100 A.3d 817 (2014).
The pictures in the BOLO came from unrelated carjackings.
On May 28, 2018 Ms. Guzman went to the New Britain Police Department. After a brief interview she examined three separate double blind sequential photo arrays. She did not identify the defendant whose photograph was in one of those arrays. After that interview, as she was leaving the police station, Ms. Guzman informed Detective Nathan Soucy that she saw her assailant’s picture on the police department’s Facebook BOLO page. This was the first time Detective Soucy became aware of the existence of that specific BOLO page. Ms. Guzman had not mentioned the Facebook page in any earlier interview.
After returning to the interview room, Ms. Guzman downloaded the BOLO photographs onto her cell phone. She identified the photograph of the defendant as that of the person who stole her minivan. She told Detective Soucy "It was him, I’m certain" and commented that she had looked at him when he pulled her from her car. When questioned later in that interview about her degree of certainty Ms. Guzman stated she was "70-100%" sure. Asked again to describe her confidence level, Ms. Guzman stated she was "really, really sure ... I’m certain." She also identified the driver of the grey Honda Civic. Officer Soucy retrieved a copy of those downloads.
The original photographs on Ms. Guzman’s cell phone were clearer than those entered as court exhibits.
At the conclusion of the hearing before this court, the defendant argued that the identification by Ms. Guzman was both the product of an impermissibly suggestive procedure and was unreliable in violation of his right to due process of law guaranteed by the fourteenth amendment to the United States constitution. He fails in both contentions
I Legal Analysis
Due process requires that eyewitness identifications must be reliable and are not the product of unnecessarily suggestive police procedures. State v. Johnson, 312 Conn. 687, 696, 94 A.3d 1173 (2014). "In determining whether identification procedures violate a defendant’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 identification was nevertheless reliable based on examination of the totality of the circumstances." (Internal quotation marks omitted.) State v. Dickson, 322 Conn. 410, 420-21, 141 A.3d 810 (2016), cert. denied, 137 S.Ct. 2263, 198 L.Ed.2d 713 (2017).
A. The Eyewitness Identification Was Not Unnecessarily Suggestive
As the Connecticut Supreme Court observed in State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990), "in the absence of state action, unnecessarily suggestive identification procedures conducted by private actors do not violate the defendant’s right to due process of law under the federal constitution ... [t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the [d]ue [p]rocess [c]lause." (Parenthesis omitted; citations omitted; internal quotation marks omitted.)
The "primary evil" that impermissibly suggestive identifications procedures generate is the "very substantial likelihood of irreparable misidentification." (Internal quotation marks omitted.) Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). However, in order to invoke federal due process protections, this defendant must first demonstrate that the challenged eyewitness identification was "procured under unnecessarily suggestive circumstances arranged by law enforcement." Perry v. New Hampshire, 565 U.S. 228, 248, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). This is so because "[a] primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances ... is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place; ... and that this rationale is inapposite in cases ... in which the police engaged in no improper conduct ... Although the unduly suggestive conduct of private parties may affect the reliability of an eyewitness identification [w]here the crucial element of police overreaching is missing, the admissibility of an allegedly unreliable confession is a matter to be governed by the evidentiary laws of the forum ... and not by the [d]ue [p]rocess [c]lause." (Citations omitted; internal citations marks omitted.) State v. Johnson, supra, 312 Conn. 699. As a consequence, failure to establish that the police arranged the pretrial identification effectively ends the constitutional inquiry.
When a defendant challenges an identification procedure that was initiated by a private actor, the admissibility of such evidence is governed by State v. Holliman, supra, 214 Conn. 38. Recognizing that federal due process principles did not apply, the Holliman court held that, as a matter of evidentiary law, "the criteria established for determining the admissibility of identifications in the due process context are appropriate guidelines by which to determine the admissibility of identifications that result from procedures conducted by civilians." Id., 46. In the absence of state action, a court must still determine whether the identification procedure "was unnecessarily suggestive, and second, if it is found to be so ... whether the identification was nevertheless reliable based on an examination of the totality of the circumstances." (Internal quotation marks omitted.) Id. "Thus, while the reliability of an eyewitness identification, or lack thereof, ordinarily goes to the weight of the evidence, and not its admissibility, unreliable identification evidence that is tainted by unduly suggestive private conduct, like such evidence that is tainted by improper state action, is inadmissible, under Holliman ." (Footnote omitted.) State v. Johnson, supra, 312 Conn. 700.
Faced with an allegation that an eyewitness procedure was unnecessarily suggestive a court must first consider the composition of the challenged procedure itself. A primary consideration is "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 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.) State v. Marquez, 291 Conn. 122, 143, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009).
The scenario in this case is similar to that detailed in Bean v. State, 240 Md.App. 342, 205 A.3d 26 (2019). In that case a relative sent a carjacking victim a Facebook BOLO posted by the Baltimore Police Department. The victim notified the investigating officer that she saw the BOLO on social media and recognized one of the men. After summarizing other state cases, the Bean court observed "courts will not conclude that improper police conduct influenced a witness’s out-of-court identification when police merely release a photograph of the defendant to the media as part of an on-going investigation." (Internal quotation marks omitted.) Id., 357.
As in the Bean case, the release of the BOLO on social media in this case was not improper police conduct since police did not arrange or encourage Ms. Guzman to view the BOLO nor was there any evidence that the police directed the BOLO toward Ms. Guzman in any sort of targeted manner. Id., 358. The activity began when a close friend and relative advised Ms. Guzman that the New Britain Police Department maintained a Facebook page and that on the page the department had posted still shots taken from videos of various unrelated carajackings. There were multiple photographs of various crime scenes. There were multiple individuals in each photograph. The defendant was not highlighted.
Ms. Guzman was not advised that her assailant was one of the individuals depicted in the various photographs. There was never a suggestion that she had to identify someone from the photographs. Her actions were no different than those of any other private individual viewing media postings. There was no unnecessarily suggestive identification.
B. Eyewitness Identification was Reliable
Even if the eyewitness identification in the present case was unnecessarily suggestive, the identification was nevertheless reliable. In State v. Harris, 330 Conn. 91, 191 A.3d 119 (2018), the Connecticut Supreme Court established a proper framework for evaluating the reliability of an identification that is the result of an unnecessarily suggestive identification procedure. There the Court held, "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." Id., 131.
Presuming a defendant provides evidence that a system variable undermined the reliability of an eyewitness identification, "a trial court should consider the eight estimator variables that [the Connecticut Supreme Court] identified in State v. Guilbert. These estimator variables are "(1) there is at best a weak correlation between a witness’ confidence in his or her identification and the identification’s accuracy; (2) the reliability of an identification can be diminished by a witness’ focus on a weapon; (3) high stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events; (4) cross-racial identifications are considerably less accurate than identifications involving the same race; (5) memory diminishes most rapidly in the hours immediately following an event and less dramatically in the days and weeks thereafter; (6) an identification may be less reliable in the absence of a double-blind, sequential identification procedure; (7) witnesses may develop unwarranted confidence in their identifications if they are privy to postevent or postidentification information about the event or the identification; and (8) the accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another." (Footnotes omitted.) State v. Guilbert, 306 Conn. 218, 237, 49 A.3d 705 (2012).
"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 viewed the perpetrator during the commission of the crime, such as lighting, distance or presence of a weapon." State v. Guilbert, 306 218, 236 n.1149 A.3d 705 (2012).
Turning to the relevant factors, this court finds
(1) There is at best a weak correlation between a witness’ confidence in his or her identification and the identification’s accuracy. Ms. Guzman accurately identified the defendant’s age and height. In a written statement, Ms. Guzman characterized her assailant as black. Thereafter, she consistently maintained that contrary to her written statement, she told investigating officers her assailant was Hispanic and that the person who drove the Honda Civic was black. Having heard the testimony of all witnesses, this court credits Ms. Guzman’s statement that the officer who took her statement misunderstood her description. All other aspects of the identification, the age and the physical characteristics of the individual, were accurate.
Ms. Guzman independently recognized the defendant from the New Britain police department Facebook page. When she advised Detective Soucy that she had seen a photo of the perpetrator, Ms. Guzman told the detective "It was him, I’m certain" and commented that she had looked at him when he pulled her from her car. When questioned later in that interview about her degree of certainty Ms. Guzman stated she was "70-100%" sure. Asked again to describe her confidence level, Ms. Guzman stated she was "really, really sure ... I’m certain." This court viewed the witness and determined that she had a high level of confidence.
(2) The reliability of an identification can be diminished by a witness’ focus on a weapon. The assailant did not display any weapon.
(3) High stress at the time of observation may render a witness less able to retain an accurate perception and memory of the observed events. Ms. Guzman viewed that defendant on two separate occasions. When she first pulled up to the gas pump, Ms. Guzman viewed the defendant as he and his companions were gathered around a nearby car. Thereafter, she witnessed the defendant as he pulled her to the ground, got into her minivan and drove away. The initial surveillance occurred in a casual atmosphere. The second scrutiny, one during which Ms. Guzman was actually assaulted, was more stressful. From the entry into the gas isle to the carjacking itself the entire encounter lasted a few minutes, sufficient time within which to accurately identify the perpetrator of the carjacking.
(4) Cross-racial identifications are considerably less accurate than identifications involving the same race. Ms. Guzman and her assailant were both Hispanic. She described him as an individual with a skin tone identical to her own.
(5) Memory diminishes most rapidly in the hours immediately following an event and less dramatically in the days and weeks thereafter. Ms. Guzman identified the photograph within days of the carjacking. The time lapse was not fatal.
(6) An identification may be less reliable in the absence of a double-blind, sequential identification procedure. The identification at issue was not the result of a police initiated formal identification process. There was no opportunity to conduct controlled identification process.
(7) Witnesses may develop unwarranted confidence in their identifications if they are privy to postevent or postidentification information about the event or the identification. The only identification at issue here is the initial Facebook photograph. There is no suggestion that there will be any attempt at an in court identification.
(8) The accuracy of an eyewitness identification may be undermined by unconscious transference, which occurs when a person seen in one context is confused with a person seen in another. Transference is not an issue in the present case.
Additionally, this court notes that it was a clear spring afternoon. The lighting conditions were excellent. Ms. Guzman initially viewed the defendant and his companions from a distance of less than ten feet. The defendant was touching her as he pulled Ms. Guzman to the ground and then entered her car. There is no evidence that she has ever utilized any substance that could affect her powers of observation. This court was able to view her demeanor and considered Ms. Guzman a calm, articulate, excellent witness.
In summary, there was no suggestive procedure. There are no extraordinary circumstances that would affect the reliability of that procedure. Review of the reliability factor leads to the conclusion the defendant’s challenges go to the weight, not the admissibility of the identification.
The Motion to Suppress is denied.
So ordered.