Argued March 11, 2015
Substitute information charging the defendant with the crimes of burglary in the first degree, threatening in the second degree and larceny in the third degree, brought to the Superior Court in the judicial district of New Haven, geographical area number twenty-three, and tried to the jury before Mullins, J.; verdict and judgment of guilty of burglary in the first degree and larceny in the third degree, from which the defendant appealed to this court.
Convicted of the crimes of burglary in the first degree and larceny in the third degree, the defendant appealed to this court. He claimed that the trial court erred by failing to provide the jury with instructions concerning the reliability of the results of a show-up procedure by which the victim had identified him as the perpetrator of the crimes, and the reliability of the statements made by the victim that he was confident in his identification. The victim had observed the defendant exiting the victim's apartment carrying his flat screen television. The victim chased after the defendant and called the police on his cell phone, and the defendant placed the television on the ground and fled the scene in a vehicle driven by an accomplice. The victim provided the police with a description of the vehicle, which was stopped by the police shortly thereafter. The police then transported the victim to the location of the stopped vehicle, where he immediately and positively identified the defendant as the perpetrator.
1. The defendant could not prevail on his unpreserved claim of instructional error related to the trial court's failure to instruct the jury, sua sponte, concerning the fallibility of eyewitness identification evidence, as the claim was not constitutional in nature; moreover, the defendant implicitly waived at trial his objection to the court's charge, the record having demonstrated that the trial court circulated and sought review of the proposed jury charge, which did not contain an instruction addressing the fallibility of eyewitness identifications, that defense counsel was afforded a meaningful opportunity to review and expressed satisfaction with the jury charge, and that defense counsel neither requested such an instruction nor objected to the charge on that ground despite being afforded multiple opportunities to do so.
2. This court rejected the defendant's claim that the trial court committed plain error in failing to instruct the jury as to the fallibility of eyewitness identification evidence, the defendant having waived his claim of instructional error at trial; the defendant's valid waiver precluded a finding that the jury instruction constituted plain error, as there was no error to correct.
3. This court declined to exercise its supervisory authority to review the defendant's claim that the trial court improperly failed to instruct the jury as to the fallibility of the victim's identification of him during the show-up procedure because the defendant at trial effectively conceded the element of identity, and this court would not conclude that the trial court should have provided the jury with an instruction that would have undermined his theory of defense; although the defendant's claim on appeal was premised on the fallibility of the victim's identification of the defendant at the show-up procedure, at trial the defendant challenged the victim's version of the events, attacked the victim's credibility, and argued that he was in the victim's home with his consent as a result of an agreement between them to exchange some of the victim's possessions for drugs; moreover, this court declined to adopt the defendant's interpretation of State v. Ledbetter (275 Conn. 534, 881 A.2d 290) as requiring a trial court to instruct a jury concerning the concerning the fallibility of eyewitness identification evidence whenever a show-up procedure is used, as Ledbetter applies only in cases in which there is a risk of misidentification, and there was no such risk here in light of the defendant's theory of the case presented at trial.
Adele V. Patterson, senior assistant public defender, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (state).
Beach, Keller and Harper, Js. KELLER, J. In this opinion the other judges concurred.
[158 Conn.App. 379] The defendant, Keith Fuller, appeals from the judgment of conviction, rendered following a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (3) and larceny in the sixth [158 Conn.App. 380] degree in violation of General Statutes § 53a-125b (a). The defendant claims that the court erred by failing to
provide the jury with instructions concerning the reliability of the results of the show-up procedure, by which the victim identified him as the perpetrator of the crimes, and the reliability of the statements made by the victim that he was confident in his identification. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On March 29, 2012, the victim, John Ziebell, along with his wife and his child, were residing in a first floor apartment on Goffe Terrace in New Haven. At approximately 9 p.m., after his wife and child were asleep, Ziebell went for an outdoor walk with his two dogs. Upon returning to his apartment at approximately 9:30 p.m., Ziebell observed the defendant, who previously was unknown to him, exiting the apartment while carrying a flat screen television. Although it was dark outside, the area was well lit by means of street lamps. Ziebell rapidly approached the defendant and said, " excuse me, that's my T.V."
The defendant, while carrying the television, made his way out of the residence, down the porch stairs, and onto the sidewalk. The defendant threatened physically to harm Ziebell and stated that Ziebell would not do anything about it. Using his cell phone, Ziebell reported the incident to the police. He remained on the telephone with the police dispatcher while he pursued the defendant on foot, accompanied by his dogs. The interaction between the two men drew the attention of one of Ziebell's neighbors, Timothy Newson, who exited his residence to investigate what was occurring.
[158 Conn.App. 381] Ziebell screamed to Newson, " Tim, Tim, this guy was in my house, he was in my house." In front of Newson's residence, the defendant carefully placed the television on a grassy surface near the roadway and, in an attempt to flee from Ziebell, hurriedly proceeded on foot away from Ziebell and toward the intersection with Ella Grasso Boulevard. Shortly thereafter, he walked back toward an automobile that was parked in front of Newson's residence. When the defendant was within approximately ten to fifteen feet of the automobile, he shouted " go, go, go." The driver of the automobile drove toward the defendant, who got into the automobile. The automobile left the scene, and the television set remained on the grass where the defendant had left it. Ziebell provided the police with information about the perpetrator's appearance as well as information concerning the marker plate and color of the automobile.
After the automobile drove off, Ziebell entered his residence for a brief time. He observed that his wife and son were safely asleep. Also, Ziebell observed that there was fresh damage to his front door, the defendant's point of entry.
Within minutes after the automobile carrying the defendant left, police officers arrived on the scene. Within a few minutes of their arrival, the officers learned that other officers had stopped an automobile that matched the description of the suspect automobile provided by Ziebell. At that time, the police transported Ziebell in a police cruiser to the area of Winthrop Avenue and Maple Street, which was approximately one to two minutes away. There, by means of a show-up identification procedure, Ziebell ...