STATE v. NATHAN S. JOHNSON, SC 19102

Judicial District of New Haven

 Criminal; Whether State Constitution Affords Due Process Protection Against Suggestive Identification Procedures Employed by Private Actors; Whether Admissibility of Eyewitness Identifications Should be Determined Based on Totality of Circumstances.  The defendant was convicted of numerous crimes in connection with the robbery and shooting of Johnnie Jones in a walkway behind a shopping plaza on the evening of December 30, 2009.  At the scene of the incident, Jones told the 911 dispatcher that the perpetrators were two black men and that he did not know who had shot him.  A week later, Jones told the investigating police officer that one of the perpetrators had played football with him in elementary school.  On February 20, 2010, Jones provided the officer with a photocopy of a picture of the defendant that he found on a social networking website and told the officer that the defendant was the man with whom he had played football and who had robbed him at gunpoint.  On March 10, 2010, the officer read Jones the witness instruction form for photo identification and then showed Jones a photographic array consisting of eight dark-skinned black men with short hair wearing dark shirts. Without hesitation, Jones identified the defendant from the array as the perpetrator.  Jones later stated that he also knew the defendant from seeing him at local bars and stores prior to the shooting.  The trial court denied the defendant’s motion to suppress Jones’ identification, finding that the identification procedure was not unduly suggestive.  The court noted that the officer administered the procedure in a neutral fashion, employed traditional procedures and did not attempt to influence the outcome of the process.  The court further noted that the photographic array was not designed or presented in a suggestive manner, that the individuals in the photos looked substantially similar, and that the defendant’s photograph was not prominently displayed or otherwise highlighted.  On appeal, the defendant argues that in determining the admissibility of Jones’ identification, the trial court should have considered whether Jones’ own investigation into the identity of his assailant impermissibly tainted his identification.  The defendant acknowledges that the federal constitution affords due process protection only against impermissibly suggestive identification procedures employed by state actors but asks that our Supreme Court rule that the state constitution affords due process protection against identifications tainted by suggestive actions by private actors.  The defendant also requests that the Supreme Court abandon the federal standard for determining the admissibility of eyewitness identification evidence under which the reliability of the evidence is only considered if it is found that the identification procedure was impermissibly suggestive and rule that the state constitution requires that the admissibility of such evidence be determined based on the totality of the circumstances.  The defendant alternatively claims that the admission of Jones’ identification constituted plain error.