   STATE OF CONNECTICUT v. QUAVON TORRES
                 (AC 39796)
                        Lavine, Keller and Bishop, Js.

                                   Syllabus

Convicted of the crimes of murder and carrying a pistol without a permit,
     the defendant appealed. The defendant’s conviction stemmed from his
     alleged conduct in shooting the victim while near a drive-through at a
     fast food restaurant. On appeal, he claimed that the first time in-court
     identification of him as the shooter by an eyewitness, J, violated his
     right to due process and should have been excluded pursuant to State
     v. Dickson (322 Conn. 410), which was decided during the pendency of
     this appeal. In Dickson, our Supreme Court held that in cases in which
     identity is an issue, a first time in-court identification by a witness who
     would have been unable to make a reliable identification of the defendant
     in a nonsuggestive out-of-court procedure constitutes a procedural due
     process violation. Although J had provided a statement to police several
     hours after the shooting, when shown two photographic lineups, one
     of which included the defendant’s photo, she was unable to identify
     anyone as the shooter. Almost two years prior to trial, the defendant’s
     original trial counsel had filed a motion to suppress any out-of-court
     identification of the defendant, but the motion was never ruled on by
     the trial court, the defendant’s subsequently appointed counsel did not
     request that the court rule on the motion, and the defendant did not
     object at the time that J made her in-court identification of him. Held:
1. Contrary to the claim of the state, the defendant did not waive his claim
     that J’s in-court identification of him was unreliable and should have
     been excluded; because there was no evidence that, prior to J’s in-court
     identification, there had been any suggestive out-of-court identification
     procedure and, given the state of the law at the time of the pretrial
     hearing and the in-court identification, J’s identification of the defendant
     was permissible, the defendant would have had no reason to believe
     that objecting to the identification would provide him any relief, and,
     therefore, he could not have waived his claim, especially given that he
     did not know at the time of his trial that he had a right to be free from
     first time in-court identifications.
2. J’s first time in-court identification of the defendant violated the defen-
     dant’s right to due process as set forth in Dickson and should not have
     been admitted: given that J’s in-court identification of the defendant
     was preceded only by her unsuccessful attempt to identify the defendant
     in a photographic lineup and that the identity of the shooter was in
     dispute, the principles set forth in Dickson applied, and where, as here,
     J had the opportunity, shortly after the incident, to identify the defendant
     in a photographic lineup but was unable to do so, and her description
     of the shooter at the time of the incident was vague and included a
     description of the shooter’s clothing, approximate age, height, build,
     and race, the record was adequate for this court to determine that
     J’s in-court identification of the defendant, made two years later, was
     unreliable; moreover, the admission of the identification was not harm-
     less beyond a reasonable doubt, as the state’s case would have been
     considerably weakened without J’s testimony identifying the defendant
     as the shooter in that the case was full of inconsistent statements and
     contradictory testimony, the jury had requested to hear a playback of
     J’s testimony only, indicating that it considered the testimony to be
     important, and, in the absence of J’s identification of the defendant, the
     state’s case was not so overwhelming that it was clear beyond a reason-
     able doubt that the jury would have returned a guilty verdict without
     the impermissible evidence.
          Argued February 15—officially released August 1, 2017

                             Procedural History

  Substitute information charging the defendant with
the crimes of murder and carrying a pistol without a
permit, brought to the Superior Court in the judicial
district of New Haven, geographical area number
twenty-three, where the defendant filed a motion to
suppress identifications; thereafter, the case was tried
to the jury before Blue, J.; verdict and judgment of
guilty; subsequently, the court denied the defendant’s
motions for judgment of acquittal and for a new trial,
and the defendant appealed. Reversed; new trial.
  Jennifer B. Smith, for the appellant (defendant).
   Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick Griffin,
state’s attorney, Gary Nicholson, supervisory assistant
state’s attorney, and Michael Dearington, former state’s
attorney, for the appellee (state).
                         Opinion

   BISHOP, J. The defendant, Quavon Torres, appeals
from the judgment of conviction, rendered after a jury
trial, of murder pursuant to General Statutes § 53a-54a
and carrying a pistol without a permit pursuant to Gen-
eral Statutes § 29-35 (a). He claims on appeal that an
eyewitness’ first time in-court identification of him as
the shooter should have been excluded pursuant to our
Supreme Court’s decision in State v. Dickson, 322 Conn.
410, 141 A.3d 810 (2016), cert. denied,         U.S.
(June 19, 2017) (No. 16-866).1 We agree and reverse the
judgment of the trial court.
  The jury reasonably could have found the following
facts. On July 23, 2012, the defendant and two other
young men, Marcus Lloyd and Freddie Pickette, were
at 541-543 Orchard Street in New Haven, where the
defendant’s cousin, Tasia Milton, lived. One of them
called the victim, Donald Bradley, on the phone to ask
for a ride to Farnam Courts, also in New Haven. The
victim parked his car, a four door Honda Accord, in
the CVS Pharmacy parking lot, across the street from
541-543 Orchard Street, and went inside CVS Pharmacy.
While the victim was in the store, the three men entered
his car. Pickette sat in the front passenger seat, Lloyd
sat in the rear passenger side seat behind Pickette, and
the defendant sat in the rear driver side seat. The victim
exited CVS and entered his car, sitting in the driver’s
seat, directly in front of the defendant. Pickette recom-
mended that they go to the Burger King, which was
very close to the CVS Pharmacy on Whalley Avenue,
to get some food on their way to Farnam Courts.
   While in the drive-through line, but before ordering,
the victim, then realizing that the defendant was in the
car, told him to leave. When the defendant did not leave,
the victim got out of the car and walked over to the
passenger side. He leaned into the car, either in the
front passenger seat, where Pickette was seated, or
the rear passenger seat, where Lloyd was seated.2 The
defendant exited the car and walked toward the victim
on the passenger side of the car. The victim was then
fatally shot. The defendant, Lloyd, and Pickette exited
the car and ran.
  The police arrived on the scene at approximately 7:20
p.m., and the victim was transported to the hospital,
where he ultimately died from multiple gunshot
wounds. The police were advised he was pronounced
dead at 7:51 p.m., and received information that two
suspects were inside the house at 541-543 Orchard
Street. By 9 p.m., the police had the house surrounded.
Eventually, the defendant and Lloyd emerged from the
house, and they were arrested. The police obtained a
search warrant for the third floor of the building and
seized, among other items, a .38 caliber Colt revolver
containing two live rounds. The weapon was later iden-
tified as the gun from which three of the four bullets
found in the victim were fired.3
   Several hours after the shooting, two eyewitnesses,
Theresa Jones and Lachell Hall, provided statements
to the police. Jones reported that she saw the shooting
while standing across the street from the Burger King
at a Stop & Shop grocery store. She told the police in
her initial statement that three black men had been
arguing around a car that was parked in the drive-
through lane at Burger King, and after the shooting,
they ran from the back of the car, past the front of
Burger King toward Orchard Street. She was shown a
photographic lineup, and identified Pickette, whom she
knew, and told the police that the shooter looked like
Pickette. She was then shown another photographic
lineup, which included the defendant’s photograph, and
she was unable to identify anyone as the shooter. She
described the shooter as thin, about five feet seven or
eight inches tall, and wearing a blue shirt.
   Hall had been standing outside of a deli near the
Burger King at the time of the shooting. She recognized
Pickette, her nephew, in the front passenger seat of the
vehicle wearing a black T-shirt. She said that the victim
got out of the car from the driver’s seat and walked
around the back of the car, and she recognized him as
someone she knew. She told the police that the person
in the rear driver’s side seat got out of the car, went
around the back of the car to the passenger side, and
then the shooting began. She was shown a photographic
lineup and was unable to identify the shooter, although
she identified Pickette’s photograph from a separate
photographic lineup and told the police that he was not
the shooter. She described the shooter as a skinny black
male, around five feet seven inches tall, wearing a black
T-shirt.
   Lloyd told the police that he did not see who shot
the victim and that he and Pickette left the car and
were walking toward the front of the Burger King when
they heard gunshots. He later changed his story and
said that he was still in the car when the defendant got
out of the car on the driver’s side and, without going
around to the other side of the car, shot the victim,
who was standing on the passenger side of the car. He
then chose Pickette from a photographic lineup and
wrote ‘‘Fred was just in the car.’’ Lloyd chose the defen-
dant from an additional photographic lineup and identi-
fied him as the shooter. Pickette gave a statement to
the police the day after the shooting and also chose
the defendant’s picture from a photographic lineup and
identified him as the shooter.
  Milton, who lived on the third floor of the Orchard
Street house, gave a videotaped statement to police at
3:30 a.m. on July 24, 2012. She told police that she was
on the front porch of her house with the defendant,
Lloyd, Pickette, and the defendant’s sister, Amber Tor-
res, when someone came to pick up the three men. She
remained on the porch and shortly thereafter heard
gunshots. She then ran up to the third floor, and as she
was running up the stairs, the defendant and Lloyd came
running up behind her. She stated that while running up
the stairs with them behind her, she was still hearing
gunshots. She told the police that she saw the defendant
give Amber the gun, and later testified that Amber had
the gun while they were in Milton’s bedroom. She also
told the police and testified that the defendant told
Amber to ‘‘do something with it.’’
   The defendant was subsequently charged on July 23,
2012, with murder and carrying a pistol without a per-
mit. Trial began on August 14, 2014. At trial, many wit-
nesses testified, including Jones who, though unable to
identify the shooter in a photographic lineup shortly
after the incident, identified the defendant as the
shooter in court during her testimony. During delibera-
tion, the jury requested to hear a playback of Jones’ tes-
timony.
   On August 25, 2014, the jury found the defendant
guilty of murder pursuant to § 53a-54a and guilty of
carrying a pistol without a permit pursuant to § 29-35
(a). At sentencing, on November 7, 2014, the defendant
moved for a new trial. The court, Blue, J., denied the
motion and sentenced the defendant to forty-five years
of incarceration and ten years of special parole on the
murder conviction, and five years of incarceration, to
run concurrently, on the conviction of carrying a pistol
without a permit. The total effective sentence was forty-
five years of incarceration and ten years of special
parole. This appeal followed.4 Additional facts and pro-
cedural history will be set forth as necessary.
  The defendant claims that Jones’ first time in-court
identification of him as the shooter should have been
excluded pursuant to our Supreme Court’s decision in
State v. Dickson, supra, 322 Conn. 410. In response, the
state argues that the defendant waived this claim. We
disagree with the state that the claim was waived and
agree with the defendant that the identification should
have been excluded.
                            I
  We discuss first the state’s argument that the defen-
dant waived his claim that Jones’ in-court identification
of him was unreliable, and, therefore, should have
been excluded.
  The following additional facts and procedural history
are relevant to our analysis. Almost two years prior
to trial, on October 24, 2012, the defendant’s original
counsel filed a motion to suppress ‘‘any out-of-court
and in-court identification of the defendant . . . .’’ The
court did not rule on this motion, and the defendant
subsequently was appointed new counsel. The day
before the start of evidence, on August 13, 2014, the
court met with defense counsel and the state’s attorney
to discuss any outstanding motions. Defense counsel
did not request that the court rule on the motion to
suppress identifications, and the court did not rule on
it. Thereafter, the trial began and at the time Jones
made the in-court identification, the defendant did not
object to the identification. On the basis of these two
occurrences, the state argues that the defendant waived
his claim that his due process rights were violated by
this in-court identification. We disagree.
   Waiver is ‘‘an intentional relinquishment or abandon-
ment of a known right or privilege. . . . It involves the
idea of assent, and assent is an act of understanding.
. . .’’ (Internal quotation marks omitted.) State v. Kitch-
ens, 299 Conn. 447, 469, 10 A.3d 942 (2011). Implicit
waiver ‘‘arises from an inference that the defendant
knowingly and voluntarily relinquished the right in ques-
tion.’’ (Emphasis omitted.) Id., 483. The court ‘‘will
indulge every reasonable presumption against waiver
of fundamental constitutional rights and . . . [will] not
presume acquiescence in the loss of [such a right].’’
(Internal quotation marks omitted.) State v. Woods, 297
Conn. 569, 583–84, 4 A.3d 236 (2010).
  At the time of Jones’ in-court identification of the
defendant, the state of the law regarding first time in-
court identifications was quite different than it is now,
post-Dickson. See footnote 4 of this opinion. Our
Supreme Court held, in State v. Smith, 200 Conn. 465,
469, 512 A.2d 189 (1986), that ‘‘an in-court testimonial
identification need be excluded, as violative of due pro-
cess, only when it is tainted by an out-of-court identifi-
cation procedure which is unnecessarily suggestive and
conducive to irreparable misidentification.’’
   There was no evidence that prior to Jones’ in-court
identification of the defendant, there had been any sug-
gestive out-of-court identification procedure. There-
fore, at the time of the pretrial hearing and the in-court
identification, Jones’ identification was permissible,
and, accordingly, the defendant would have had no
reason to believe that objecting to the identification
would provide him with any relief. Therefore, the defen-
dant could not have waived this argument, as being free
from first time in-court identifications was not a known
right to him at the time of his trial. Accordingly, the
defendant did not waive this claim.
                            II
  We turn now to the merits of the defendant’s claim
that Jones’ first time in-court identification of him
should not have been admitted pursuant to our Supreme
Court’s ruling in Dickson.
  The following additional facts and procedural history
are relevant to our resolution of this claim. In support
of her identification of the defendant as the shooter,
Jones testified that she saw the shooter’s face during
the incident, but she found it difficult to pick someone
out in a photograph. She further testified that she felt
if she had seen him in person, she would have been
able to identify him that night. Nonetheless, she did not
identify the defendant as the shooter at any point prior
to trial. When asked at trial if the shooter was in the
courtroom, she answered ‘‘yes’’ and pointed out the
defendant.
   On appeal, the defendant claims that Jones’ first time
in-court identification of him as the shooter violated
his right to due process under our Supreme Court’s
holding in Dickson, and, therefore should have been
excluded. We agree.
  We note first that ‘‘[w]hether [a party] was deprived
of his due process rights is a question of law, to which
we grant plenary review.’’ (Internal quotation marks
omitted.) State v. Dickson, supra, 322 Conn. 423.
   ‘‘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 circum-
stances.’’ (Internal quotation marks omitted.) State v.
Marquez, 291 Conn. 122, 141, 967 A.2d 56, cert. denied,
558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).
   ‘‘The first suggestiveness prong involves the circum-
stances of the identification procedure itself . . . and
the critical question is whether the procedure was con-
ducted in such a manner as to emphasize or highlight
the individual whom the police believe is the suspect.
. . . If the trial court determines that there was no
unduly suggestive identification procedure, that is the
end of the analysis, and the identification evidence is
admissible. . . . If the court finds there was an unduly
suggestive procedure, the court goes on to address the
second reliability prong, under which the corruptive
effect of the suggestive procedure is weighed against
certain factors, such as the opportunity of the [eyewit-
ness] to view the criminal at the time of the crime, the
[eyewitness’] degree of attention, the accuracy of [the
eyewitness’] prior description of the criminal, the level
of certainty demonstrated at the [identification] and
the time between the crime and the [identification].’’
(Citations omitted; internal quotation marks omitted.)
State v. Dickson, supra, 322 Conn. 421.
   Turning to the suggestiveness prong, our Supreme
Court recently has held that when the suspect’s identity
is at issue, a ‘‘first time in-court identification by a
witness who would have been unable to reliably identify
the defendant in a nonsuggestive out-of-court proce-
dure constitutes a procedural due process violation.’’5
Id., 426 n.11. In doing so, the court stated: ‘‘[W]e are
hard-pressed to imagine how there could be a more
suggestive identification procedure than placing a wit-
ness on the stand in open court, confronting the witness
with the person [whom] the state has accused of com-
mitting [a] crime, and then asking the witness if he can
identify the person who committed the crime. . . . If
this procedure is not suggestive, then no procedure is
suggestive.’’ (Emphasis in original; footnote omitted.)
Id., 423–24.
   In order to avoid such suggestive procedures, the
court announced a new procedural rule: ‘‘In cases in
which there has been no pretrial identification, how-
ever, and the state intends to present a first time in-court
identification, the state must first request permission to
do so from the trial court. . . . The trial court may
grant such permission only if it determines that there
is no factual dispute as to the identity of the perpetrator,
or the ability of the particular eyewitness to identify
the defendant is not at issue.’’ (Citation omitted.) Id.,
445–46. This procedural rule, the court stated, applied
prospectively and to all cases pending on review. Id.,
450–51.
    In cases like the present one, where the suggestive
in-court identification occurred before Dickson was
decided, the court created an alternative procedure for
reviewing courts to retroactively apply the Dickson
principles and determine whether the suggestive in-
court identification was nonetheless reliable and, there-
fore, admissible. ‘‘[I]n pending appeals involving this
issue, the suggestive in-court identification has already
occurred. Accordingly, if the reviewing court concludes
that the admission of the identification was harmful,
the only remedy that can be provided is a remand to
the trial court for the purpose of evaluating the reliabil-
ity and the admissibility of the in-court identification
under the totality of the circumstances.’’ Id., 452. Alter-
natively, if the record is adequate to make a determina-
tion as to the reliability and admissibility of the
identification, then the reviewing court could make
such a determination. Id., 452 n.35. The court in Dickson
specifically highlighted a situation in which ‘‘the eyewit-
ness had a full and fair opportunity to identify the defen-
dant before trial and was unable to do so’’ as an example
of an instance in which a reviewing court could make
such a determination on the basis of the record. Id.
(‘‘[O]f course, if the record is adequate for review of
the reliability and admissibility of the in-court identifica-
tion, the reviewing court may make this determination.
For example, if the eyewitness had a full and fair oppor-
tunity to identify the defendant before trial and was
unable to do so, the reviewing court reasonably could
conclude that the subsequent in-court identification
was unreliable.’’)
  Turning now to the present case, we first acknowl-
edge that the Dickson principles apply to Jones’ identifi-
cation of the defendant. Jones’ in-court identification
of the defendant was preceded only by her unsuccessful
attempt to identify the defendant in a photographic
lineup, and the identity of the shooter was in dispute.
See id., 452–53. The record makes plain that Jones had
the opportunity, shortly after the incident, to identify
the defendant in a photographic lineup and she could
not. Her description of the shooter at the time of the
incident was vague and contained only a description
of his clothing, approximate age, height, and build, and
race. Therefore, the record is adequate for us to deter-
mine that her in-court identification of the defendant,
two years later, was unreliable.
   Accordingly, we must determine now whether the
admission of the identification was harmless. We con-
clude that it was not. ‘‘A constitutional error is harmless
when it is clear beyond a reasonable doubt that the
jury would have returned a guilty verdict without the
impermissible [evidence]. . . . That determination
must be made in light of the entire record [including
the strength of the state’s case without the evidence
admitted in error].’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 453.
    We note first that the jury undoubtedly considered
Jones’ testimony important because during deliberation
it requested to hear a playback of her testimony, and did
not request to rehear any other testimony. Additionally,
without Jones’ testimony identifying the defendant as
the shooter, the state’s case would have been consider-
ably weakened. In addition to Jones, Hall testified about
her eye-witness account of the incident. She testified
that she saw the car park in the Burger King drive-
through and recognized Pickette, her nephew, in the
front seat of the car. She also recognized the victim
when he got out of the front driver’s side door and
walked around the car to the passenger side of the car.
She was about to go say hello but before she could,
someone got out of the rear driver’s side of the car,
walked around the back of the car, and stood with his
back facing her, and then the victim was shot. Hall
testified that she was sure that the shooter was the
person who got out of the car from the rear driver’s
side seat, but testified that she only told the police that
‘‘because when the person got out [of] the rear behind
the driver, that’s when the shooting started.’’ She testi-
fied that she did not see the man who got out of the
car raise his arm. She further testified that she did not
see the gun, she did not see the shooter’s face, and she
could not identify the shooter. When asked whether
she knew who shot the victim, she testified ‘‘I just know
it was somebody in that car.’’ Additionally, her descrip-
tion of the shooter wearing a black T-shirt contradicted
Jones’ testimony that the shooter wore a blue shirt.
  Lloyd testified that he did not remember anything
about the shooting because he was intoxicated and
under the influence of drugs that night. He testified that
he did not see who shot the victim, and that his father,
who was present at the police station during his state-
ment, and the police pressured him to choose the defen-
dant’s picture. A redacted version of his videotaped
statement was admitted at trial pursuant to State v.
Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479
U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).6
   Pickette testified that he saw the defendant get out
of the rear driver’s side of the car and walk to the rear
passenger side, where the victim was, but on cross-
examination, testified that he did not see the defendant
get out of the car because he was watching the victim
who had come around the car to the passenger side.
He testified multiple times that he did not see whether
the defendant had a gun. He also testified on cross-
examination that he did not see the victim get shot, but
then later testified on recross-examination that he did
see the defendant shoot the victim. He testified that
after the shooting, he ran down the Burger King drive-
through alley to Whalley Avenue and then down to
McDonald’s, not to Orchard Street with the defendant
and Lloyd. Surveillance footage showed, however, that
Pickette crossed Orchard Street and went through the
CVS Pharmacy parking lot before retreating down Whal-
ley Avenue.
  Milton testified that she ran up to the third floor of
her apartment building as soon as she heard gunshots,
and as she was running up the stairs, the defendant
and Lloyd were running behind her. She testified that
she was still hearing gunshots as the defendant and
Lloyd were behind her on the stairs. She also testified
that she never actually saw the defendant with a gun,
which conflicted with what she told the police, but just
assumed that he was giving Amber a gun when she
heard him tell her to ‘‘do something with it.’’ She con-
ceded on cross-examination that somebody, but she did
not know who, gave Amber the gun. A redacted version
of Milton’s videotaped statement was admitted at trial
pursuant to State v. Whelan, supra, 200 Conn. 743. See
footnote 6 of this opinion.
   Kristen Sasinouski, a forensic science examiner for
the state of Connecticut, testified regarding the DNA
and fingerprint evidence found on the gun. She testified
that she tested three areas of the gun for DNA: the grip
area, the cylinder area, and the trigger area. She also
testified that two cartridges were swabbed for DNA as
well, on which no DNA was found. She further testified
that three DNA profiles were found on the gun, none
of which was the defendant’s.7 When asked if that meant
that the defendant necessarily did not touch the gun,
she testified ‘‘[n]o, it does not.’’ She did testify, though,
that given the fact that the shooting occurred in hot
weather in July, and that parts of the gun had an abrasive
surface, she would have expected to find DNA on the
gun of someone who handled it.
   Ultimately, the case was full of inconsistent state-
ments and contradictory testimony, which raise sub-
stantial concerns. There was contradictory testimony
about what color shirt the shooter was wearing, where
the shooter was standing, where the victim was stand-
ing, and where the defendant, Pickette, and Lloyd ran
after the shooting. Accordingly, without Jones’ in-court
identification of the defendant, the state’s case was
not so overwhelming that we can conclude ‘‘it is clear
beyond a reasonable doubt that the jury would have
returned a guilty verdict without the impermissible [evi-
dence] . . . .’’ (Internal quotation marks omitted.)
State v. Dickson, supra, 322 Conn. 453. Therefore, the
erroneous admission of Jones’ in-court identification
was not harmless beyond a reasonable doubt.
  The judgment is reversed and the case is remanded
for a new trial.
      In this opinion the other judges concurred.
  1
     The defendant also claims that the court abused its discretion in denying
his motion for a new trial because the verdict was against the weight of
the evidence, and seeks a reversal of his conviction and a remand for a new
trial. Because we reverse the judgment on the basis of the erroneous inclu-
sion of the first time in-court identification, we need not address this claim.
   2
     The record is unclear as to why the victim went to the passenger side
of the car, but a bat was later found on the floor of the back of the vehicle.
Pickette told the police that he saw the victim retrieving the bat, but at trial
he testified that he did not see the victim doing so. Lloyd told the police
that the victim came to the passenger side of the car to retrieve the bat.
Regardless of whether the victim sought to retrieve the bat, the defendant
did not claim self-defense at trial.
   3
     The defendant did not have a permit to carry a pistol.
   4
     The defendant appealed to the Supreme Court. He submitted his brief
to the court on April 29, 2016, in which he argued that Jones’ first time in-
court identification of him as the shooter was suggestive, and, therefore,
should be analyzed for reliability on state constitutional grounds. He argued
that the court should consider a number of different tests in doing so. While
the defendant’s appeal was pending, however, the Supreme Court released
its decision in State v. Dickson, supra, 322 Conn. 410, in which it held that
‘‘in cases in which identity is an issue, in-court identifications that are not
preceded by a successful identification in a nonsuggestive identification
procedure implicate due process principles and, therefore must be pre-
screened by the trial court.’’ (Footnotes omitted.) Id., 415. In doing so, it
overruled its prior decision in State v. Smith, 200 Conn. 465, 469, 512 A.2d 189
(1986), in which it had determined that ‘‘an in-court testimonial identification
need be excluded, as violative of due process, only when it is tainted by an
out-of-court identification procedure which is unnecessarily suggestive and
conducive to irreparable misidentification.’’
   Subsequently, the defendant moved that he be allowed to file a supplemen-
tal brief addressing the impact of Dickson on his case. The Supreme Court
granted the motion on November 8, 2016, and ordered that the state also
file a supplemental brief, responsive to the defendant’s. The Supreme Court
additionally transferred the defendant’s appeal to this court. The defendant
filed his consolidated reply and supplemental brief to this court on November
28, 2016. The state filed its supplemental brief thereafter.
   5
     The court stated: ‘‘We agree that one-on-one in-court identifications do
not always implicate the defendant’s due process rights, as when identity
is not an issue or when there has been a nonsuggestive out-of-court identifica-
tion procedure. . . . [T]he specific question that we are addressing here
[is] whether the trial court is constitutionally required to prescreen first
time in-court identifications . . . .’’ (Emphasis in original.) State v. Dickson,
supra, 322 Conn. 433.
   6
     ‘‘[I]n Whelan, [our Supreme Court] held that a prior written inconsistent
statement of a nonparty witness is admissible for substantive purposes if
the statement is signed by the declarant, who has personal knowledge of
the facts stated, and the declarant testifies at trial and is available for cross-
examination. See State v. Whelan, supra, 200 Conn. 753. This rule later was
expanded to apply to tape-recorded statements that otherwise satisfy the
Whelan criteria. E.g., State v. Simpson, 286 Conn. 634, 642, 945 A.2d 449
(2008).’’ State v. Carrion, 313 Conn. 823, 825 n.3, 100 A.3d 361 (2014).
  7
    The defendant, the victim, and Lloyd were all eliminated as contributors
of the DNA profiles found on the gun. A DNA sample was never taken from
Pickette, however.
