Whether the trial court should have excluded Carlton Hritsco's identification of Christopher Ramirez

QUESTIONS PRESENTED 1. In Perry v. New Hampshire, 565 U.S. 228, 232 (2012) the Court held the Fourteenth Amendment right to due process requires exclusion from trial an identification where “the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime,” and circumstantial “indicia of reliability are [not] strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances.” The Court has not determined whether a faulty identification that results from suggestive state action but also involves non-state action is subject to exclusion under the federal constitution. Whether the trial court should have excluded Carlton Hritsco’s identification of Christopher Ramirez where the police conducted two photographic arrays within 24 hours that included photographs of Ramirez, and Hritsco did not identify Ramirez, Hritsco subsequently viewed Ramirez on television as the suspect, and nearly two years later the prosecution conducted an in-court identification during trial where Hritsco identified Ramirez, the defendant? 2. Whether an aggravating circumstance, which is an element of a crime under the Sixth Amendment, that is found by the jury must be stricken if no notice is provided in advance of trial, even where the aggravating circumstance has not been used to enhance the sentence? i