State v. Dickson ( 2016 )

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STATE v. DICKSON—THIRD CONCURRENCE
ROBINSON, J., concurring. I share the majority’s con-
cern about the inherently suggestive nature of first time
in-court identifications at criminal trials.1 I am, how-
ever, concerned about the majority’s election to decide
the merits of the federal constitutional issues concern-
ing such identifications raised by the defendant,
Andrew Dickson, under these circumstances. In my
view, this court’s analysis more appropriately starts
and ends with part V of the majority opinion, which
‘‘assume[s] that [the] in-court identification of the
defendant [by one of the victims] was improperly admit-
ted,’’ but nevertheless ‘‘conclude[s] that any due pro-
cess violation was harmless beyond a reasonable
doubt.’’ Given this conclusion, I believe that parts I
through IV of the majority opinion appear to be inconsis-
tent with our long held commitment to avoid unneces-
sarily deciding constitutional issues. See Moore v.
McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986). This
is particularly troublesome because the state’s ultimate
victory in this appeal renders the majority’s analysis of
a complex and controversial issue of federal constitu-
tional law virtually unreviewable under the ‘‘usual rule’’
of the United States Supreme Court in its exercise of
its certiorari jurisdiction, which is to deny petitions
filed by prevailing parties. Camreta v. Greene, 563 U.S.
692, 709, 131 S. Ct. 2020, 179 L. Ed. 2d 1118 (2011);
see also 28 U.S.C. § 1257 (a) (providing for certiorari
jurisdiction over state court decisions).2 Accordingly, I
join only in part V of the majority’s opinion and this
court’s ultimate decision to affirm the judgment of the
Appellate Court upholding the defendant’s convictions
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1), and conspiracy to commit
robbery in the first degree in violation of General Stat-
utes §§ 53a-48 and 53a-134 (a) (4).
It is well settled that ‘‘[t]his court has a basic judicial
duty to avoid deciding a constitutional issue if a noncon-
stitutional ground exists that will dispose of the case.
. . . The best teaching of this [c]ourt’s experience
admonishes us not to entertain constitutional questions
in advance of the strictest necessity.’’ (Citations omit-
ted; internal quotation marks omitted.) Moore v. McNa-
mara, supra, 201 Conn. 20–21; see Parker v. Los
Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144
(1949); Rescue Army v. Municipal Court, 331 U.S. 549,
568–74, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947); Ashwander
v. Tennessee Valley Authority, 297 U.S. 288, 346–47, 56
S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).
‘‘We do not take lightly our responsibility to act as the
final arbiter in resolving issues relating to our constitu-
tion. . . . We also, however, do not engage in
addressing constitutional questions unless their resolu-
tion is unavoidable.’’ (Citations omitted.) State v.
McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002); see
also Kinsey v. Pacific Employers Ins. Co., 277 Conn.
398, 420–22, 891 A.2d 959 (2006) (Zarella, J., concur-
ring) (collecting authorities). The United States
Supreme Court has described this doctrine of constitu-
tional avoidance as ‘‘more deeply rooted than any other
in the process of constitutional adjudication . . . .’’
(Internal quotation marks omitted.) Rescue Army v.
Municipal Court, supra, 570 n.34.
This court often applies the doctrine of constitutional
avoidance not to decide difficult questions of constitu-
tional law when the state has established that any con-
stitutional error will not affect the result of the appeal
because it is harmless beyond a reasonable doubt.
‘‘Under such circumstances, it would [not be an efficient
use of] judicial resources, and a pedantic exercise, to
delve deeply into the constitutional merits of a claim
that can appropriately be resolved in accordance with
the relevant harmless error analysis.’’ (Citations omit-
ted.) State v. Golding, 213 Conn. 233, 241–42, 567 A.2d
823 (1989); see also United States v. Hasting, 461 U.S.
499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). For
example, in State v. Jordan, 314 Conn. 89, 96, 101 A.3d
179 (2014), the defendant raised a complex challenge
to the seizure of drugs from a closet near where he was
arrested under the fourth amendment to the United
States constitution. See id., 96–98 (noting questions
over scope of Arizona v. Gant, 556 U.S. 332, 129 S. Ct.
1710, 173 L. Ed. 2d 485 [2009], with respect to searches
incident to arrest under Chimel v. California, 395 U.S.
752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 [1969]). Observing
the ‘‘unsettled’’ nature of the law in this area given a
‘‘split’’ among the federal courts, this court ‘‘conclude[d]
that the present case does not require us to weigh in
on this debate. Even if we assume, without deciding,
that the facts and the law should have led the trial court
to suppress the evidence seized from the closet, we are
fully convinced that any improper admission of the
evidence is harmless beyond a reasonable doubt in light
of the unchallenged evidence seized from the defen-
dant’s person.’’ (Emphasis added.) State v. Jordan,
supra, 100–101.
Identification cases like the present case are no
exception to the doctrine of constitutional avoidance.
Recently, in State v. Artis, 314 Conn. 131, 145, 101 A.3d
915 (2014), this court declined to consider a constitu-
tional challenge to the reliability of an out-of-court iden-
tification that the state had conceded ‘‘was
unnecessarily suggestive,’’ because, ‘‘even if [the] identi-
fication testimony should have been suppressed, the
state’s use of that testimony is subject to harmless error
review, and the state has proven beyond a reasonable
doubt that the admission of the testimony was harm-
less.’’ See also id., 155–56 (overruling State v. Gordon,
185 Conn. 402, 441 A.2d 119 [1981], cert. denied, 455
U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 [1982], and
concluding that use of unreliable eyewitness identifica-
tion resulting from unnecessarily suggestive procedure
is not structural error and, therefore, subject to harm-
less error review). The majority opinion and Justice
Zarella’s concurring opinion comprehensively explore
the divergent approaches taken by the United States
Circuit Courts of Appeal and our sister states with
respect to first time in-court identifications, and I need
not repeat them here. Suffice it to say, given the deep
division in the law in this area, I would follow the
doctrine of constitutional avoidance, as exemplified by
our recent decisions in Artis and Jordan, and not weigh
in on the difficult federal constitutional issue in this
case, in which the claimed due process violation is
ultimately harmless error.3
Further weighing in favor of restraint is the fact that
we already have a controlling precedent, State v. Smith,
200 Conn. 465, 469, 512 A.2d 189 (1986), which the
majority overrules in part I of its opinion. That the
majority’s constitutional analysis implicates stare deci-
sis4 is even more reason that we should be reticent to
resolve the defendant’s federal constitutional claims.
That doctrine ‘‘counsels that a court should not overrule
its earlier decisions unless the most cogent reasons and
inescapable logic require it. . . . Stare decisis is justi-
fied because it allows for predictability in the ordering
of conduct, it promotes the necessary perception that
the law is relatively unchanging, it saves resources and
it promotes judicial efficiency. . . . It is the most
important application of a theory of decisionmaking
consistency in our legal culture and . . . is an obvious
manifestation of the notion that decisionmaking consis-
tency itself has normative value.’’ (Internal quotation
marks omitted.) State v. Artis, supra, 314 Conn. 146.
The majority, however, supports its decision to over-
rule Smith and impose a constitutionally based prophy-
lactic rule with respect to first time in-court
identifications by observing that the United States
Supreme Court ‘‘has the authority to overrule our deci-
sion’’ should it disagree with this court’s resolution of
the constitutional issue.5 See footnote 11 of the majority
opinion. I respectfully disagree with the majority’s reli-
ance on the United States Supreme Court’s certiorari
process as a safety net for its interpretation of the
federal due process clause given the posture of this
case, wherein the state ultimately prevails entirely by
obtaining an affirmance of the defendant’s convictions,
albeit on harmless error grounds. This is because it is
well settled that the ‘‘usual rule’’ of the United States
Supreme Court is not to ‘‘[consider] prevailing parties’
petitions [for writs of certiorari]’’ and, thus, that court
would not be able to review the majority’s analysis of
the constitutional issue in the present case. Camreta
v. Greene, supra, 563 U.S. 709.
Although the United States Supreme Court is not
precluded constitutionally or statutorily from granting
a petition filed by a prevailing party,6 it has stated that
its ‘‘resources are not well spent superintending each
word a lower court utters en route to a final judgment
in the petitioning party’s favor.’’ Id., 704. The court,
‘‘therefore [has] adhered with some rigor to the princi-
ple that [t]his [c]ourt reviews judgments, not statements
in opinions.’’ (Internal quotation marks omitted.) Id.;
see also Bunting v. Mellen, 541 U.S. 1019, 1023, 124 S.
Ct. 1750, 158 L. Ed. 2d 636 (2004) (Scalia, J., dissenting
from denial of certiorari) (‘‘although the statute govern-
ing our certiorari jurisdiction permits application by
‘any party’ to a case in a federal court of appeals . . .
our practice reflects a ‘settled refusal’ to entertain an
appeal by a party on an issue as to which he prevailed’’).
‘‘On the few occasions when we have departed from
that principle, we have pointed to a policy reaso[n] . . .
of sufficient importance to allow an appeal by the win-
ner below.’’ (Internal quotation marks omitted.) Cam-
reta v. Greene, supra, 563 U.S. 704. I suggest that the
United States Supreme Court’s reviewability precedents
disclose no such policy reason that would allow certio-
rari review in this otherwise routine criminal appeal.7
Particularly instructive on this point is California v.
Rooney, 483 U.S. 307, 107 S. Ct. 2852, 97 L. Ed. 2d 258
(1987) (per curiam). In that case, the United States
Supreme Court ‘‘granted the [s]tate’s petition for certio-
rari to decide whether [the] respondent retained an
expectation of privacy in a bag that he placed in the
communal trash bin of a multi-unit apartment building,’’
despite the fact that the state had prevailed entirely
before a state appellate court, which had determined
that there was sufficient other evidence beyond the
trash bin search to support probable cause for the chal-
lenged warrant. Id., 308–11. Ultimately, the United
States Supreme Court dismissed the appeal as improvi-
dently granted, reasoning that the challenged ‘‘judgment
. . . was entirely in the [s]tate’s favor—the search war-
rant which was the sole focus of the litigation was
deemed valid. The fact that the [state appellate court]
reached its decision through analysis different than this
[c]ourt might have used does not make it appropriate
for this [c]ourt to rewrite the [state appellate] court’s
decision, or for the prevailing party to request us to
review it. That the [state appellate court] even
addressed the trash bin issue is mere fortuity; it could
as easily have held that since there was sufficient evi-
dence to support the search even without the trash
evidence, it would not discuss the constitutionality of
the trash search. The [state appellate court’s] use of
analysis that may have been adverse to the [s]tate’s
long-term interests does not allow the [s]tate to claim
status as a losing party for purposes of this [c]ourt’s
review.’’ (Emphasis added.) Id., 311.
Rooney suggests, then, that it is extraordinarily
unlikely that the Supreme Court would grant certiorari
to consider any challenge by the state to the majority’s
resolution of the merits of the defendant’s federal con-
stitutional claim. The ultimate judgment of the United
States Supreme Court would have no practical effect
whatsoever on the judgment of this court affirming
the defendant’s convictions. Thus, given the majority’s
conclusion in part V of its opinion that the state has
proven any identification error in this case harmless
beyond a reasonable doubt, I do not think it advisable
to rely on the prospect of the United States Supreme
Court’s review to encourage us to go out on a federal
constitutional limb with respect to the complex consti-
tutional issue presented by the merits of the defendant’s
challenge to his first time in-court identification.8
Accordingly, I join in the judgment of the court.
1
Like the majority, I refer to in-court identifications that have not been
preceded by a successful out-of-court identification by the same witness as
first time in-court identifications. See footnote 3 of the majority opinion.
2
Section 1257 (a) of title 28 of the United States Code provides: ‘‘Final
judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of
certiorari where the validity of a treaty or statute of the United States is
drawn in question or where the validity of a statute of any State is drawn
in question on the ground of its being repugnant to the Constitution, treaties,
or laws of the United States, or where any title, right, privilege, or immunity
is specially set up or claimed under the Constitution or the treaties or statutes
of, or any commission held or authority exercised under, the United States.’’
3
Other similar examples of constitutional avoidance abound in our juris-
prudence. See, e.g., State v. Santos, 318 Conn. 412, 424–25, 121 A.3d 697
(2015) (confrontation clause); State v. Randolph, 284 Conn. 328, 375–76,
933 A.2d 1158 (2007) (declining to consider whether Crawford v. Washing-
ton, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 [2004], applies to pretrial
hearings because ‘‘the impropriety was harmless beyond a reasonable doubt
because ample evidence existed to support the trial court’s probable cause
determination’’); State v. Brunetti, 279 Conn. 39, 77, 901 A.2d 1 (2006) (claim
under Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 [1966]), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85
(2007); State v. Lemon, 248 Conn. 652, 663, 731 A.2d 271 (1999) (declining
to consider state constitutional claim concerning commentary on right to
testify because ‘‘the defendant cannot prevail even under the . . . test that
she advocates’’).
4
As Justice Zarella aptly observes in his concurring opinion, the majority
does not analyze whether State v. Smith, supra, 200 Conn. 465, or State v.
Tatum, 219 Conn. 721, 728, 595 A.2d 332 (1991), which it also overrules,
should receive any benefit from the doctrine of stare decisis.
5
I recognize the existence of a debate, highlighted in footnotes 7 and 8
of Justice Zarella’s concurring opinion and footnote 11 of the majority
opinion, over whether the United States Supreme Court itself has the author-
ity to articulate constitutionally based prophylactic rules, such as that of
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). Until that court definitively states that it lacks such authority, I
assume that this court shares the interpretive prerogative to articulate those
prophylactic rules that it deems mandated by specific federal constitutional
provisions, so long as those rules are not inconsistent with previous decisions
of the United States Supreme Court. See Ohio v. Robinette, 519 U.S. 33,
39–40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (rejecting, as inconsistent
with Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d
854 [1973], state supreme court’s apparent holding that fourth amendment
requires per se rule ‘‘requir[ing] police officers to always inform detainees
that they are free to go before a consent to search may be deemed volun-
tary’’); see also Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed.
2d 570 (1975) (‘‘a [s]tate may not impose such greater restrictions as a
matter of federal constitutional law when this [c]ourt specifically refrains
from imposing them’’ [emphasis omitted]); State v. Ledbetter, 275 Conn. 534,
559–60, 881 A.2d 290 (2005) (stating that ‘‘[w]e lack the authority to replace
the [factors set forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375,
34 L. Ed. 2d 401 (1972)] on federal constitutional grounds’’ and that ‘‘[w]e
lack the authority to hold now that, in light of additional scientific informa-
tion, those factors no longer satisfy federal constitutional strictures’’), cert.
denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
6
‘‘Ordinarily, only a party aggrieved by a judgment or order of a district
court may exercise the statutory right to appeal therefrom. A party who
receives all that he has sought generally is not aggrieved by the judgment
affording the relief and cannot appeal from it. . . . The rule is one of federal
appellate practice, however, derived from the statutes granting appellate
jurisdiction and the historic practices of the appellate courts; it does not
have its source in the jurisdictional limitations of [article three of the United
States constitution]. In an appropriate case, appeal may be permitted from
an adverse ruling collateral to the judgment on the merits at the behest of
the party who has prevailed on the merits, so long as that party retains a
stake in the appeal satisfying the requirements of [article three].’’ (Citations
omitted.) Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333–34,
100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980); see also Camreta v. Greene, supra,
563 U.S. 702 (‘‘[w]e have previously recognized that an appeal brought by
a prevailing party may satisfy [the] case-or-controversy requirement [set
forth in article three]’’).
7
My research disclosed three occasions on which the United States
Supreme Court has granted a petition for certiorari filed by a party that
prevailed entirely in a previous proceeding, all concerning judgments with
some preclusive effect on the petitioner that gave it a continuing stake in
the controversy. See Camreta v. Greene, supra, 563 U.S. 708–709 (adopting
‘‘exempt[ion]’’ to this policy for ‘‘one special category of cases,’’ namely,
civil actions in which government official was adjudged to have violated a
party’s constitutional rights, but nevertheless prevailed on grounds of quali-
fied immunity because, otherwise the official ‘‘must either acquiesce in a
ruling he had no opportunity to contest in this [c]ourt, or defy the views of
the lower court, adhere to practices that have been declared illegal, and
thus invite new suits and potential punitive damages’’ [internal quotation
marks omitted]); Deposit Guaranty National Bank v. Roper, 445 U.S. 326,
334–36, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980) (appeal from denial of class
certification filed by named plaintiff who had received offer of judgment
for maximum amount of individual damages permitted under federal law);
Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.
Ct. 860, 83 L. Ed. 1263 (1939) (judgment for defendant declaring patent
valid, but not infringed).
8
This is not to say that we should completely eschew the opportunity to
scrutinize first time in-court identifications, which are inherently suggestive
to the point of troubling in many cases. See, e.g., State v. Nelson, 4 Conn.
App. 514, 516–17, 495 A.2d 298 (1985) (rejecting claim that ‘‘in-court identifi-
cation was impermissibly suggestive since the defendant was the only black
male present in the courtroom’’ because it was otherwise reliable). Rather
than encroach on the authority that we share with the United States Supreme
Court, I would consider utilizing our supervisory authority over the adminis-
tration of justice, particularly in cases such as this one wherein reversal is
not required and we are simply setting prophylactic rules to promote the
fairness of future proceedings. See State v. Carrion, 313 Conn. 823, 851–52,
100 A.3d 361 (2014); accord State v. Ledbetter, 275 Conn. 534, 578–79, 881
A.2d 290 (2005) (utilizing supervisory authority to require specific jury
instruction concerning certain risks of misidentification that are inherent
in eyewitness identification evidence), cert. denied, 547 U.S. 1082, 126 S.
Ct. 1798, 164 L. Ed. 2d 537 (2006); cf. State v. Rose, 305 Conn. 594, 605–606,
46 A.3d 146 (2012) (declining to consider whether it is structural constitu-
tional error to require defendant to stand trial in identifiable prison clothing
after resolving case under supervisory authority).