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State v. Griffin

Court of Appeals of Connecticut

September 11, 2018

STATE OF CONNECTICUT
v.
MADELINE GRIFFIN

          Argued April 25, 2018

         Procedural History

         Substitute information charging the defendant with two counts of the crime of insurance fraud, and with the crimes of arson in the first degree and conspiracy to commit arson in the first degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Pavia, J.; thereafter, the court denied the defendant's motion to suppress certain evidence; verdict and judgment of guilty, from which the defendant appealed. Reversed in part; judgment directed; further proceedings.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and David R. Applegate, assistant state's attorney, for the appellee (state).

          Sheldon, Keller and Lavery, Js.

          OPINION

          KELLER, J.

         The defendant, Madeline Griffin, appeals from the judgment of conviction, rendered after a jury trial, of one count each of the crimes of arson in the first degree in violation of General Statutes §§ 53a-100, 53a-111 (a) (3) and 53a-8 (a); conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 (a), 53a-100 and 53a-111 (a) (3); insurance fraud in violation of General Statutes § 53a-215 (a) (1); and insurance fraud in violation of General Statutes § 53a-215 (a) (2). On appeal, the defendant claims that (1) the trial court improperly denied her motion to suppress the pretrial and in-court identifications of her because they were the result of unnecessarily suggestive photographic arrays, and (2) the state presented insufficient evidence to convict her of arson, conspiracy to commit arson, and the insurance fraud charge pertaining to the homeowner's insurance policy of her mother. We agree with the defendant's second claim as it pertains to the insurance fraud count and, accordingly, reverse in part the trial court's judgment. We otherwise affirm the judgment.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. At about 2:45 p.m. on May 28, 2011, the defendant set fire to her mother's house in Stratford. Neighbors, including Carmen Febles, Juan Febles, and Karen Wakeley, heard an explosion and saw flames coming from the house. The defendant appeared among the neighbors, barefoot, claiming that she had been mowing the lawn when the fire started. At least one of the neighbors was familiar with the defendant. The defendant, who spoke English and Spanish, identified herself as the homeowner's daughter, and then used Carmen Febles' cell phone to call her mother's cell phone and asked the person on the other line, ‘‘Where are you?'' Approximately thirty minutes later, two unidentified individuals drove to the scene, picked up the defendant, and drove away.

         Meanwhile, emergency personnel arrived at the scene to extinguish the fire and investigate its origins. They determined that the fire was started intentionally through the use of gasoline as an accelerant. A K-9 unit alerted to several areas of the house where an accelerant was used, and a partially melted gasoline container was found in the house. At about the same time, a tracking K-9 searched the neighborhood. Another neighbor, Debra Hirth, who had not witnessed the fire, alerted an officer to a pair of sandals smelling of gasoline that appeared to have been thrown onto her property. The sandals were then presented to the other K-9 unit, which alerted to the sandals as containing accelerants.

         The defendant returned to the scene while police were still there and voluntarily provided a written statement to police. She claimed to have been at her home in Danbury during the fire, but had left her car parked in her mother's garage. The following items were found inside her car: a cell phone; two televisions; trophies; frozen and canned food; a safe containing multiple valuables and documents, including the mother's marriage license and jewelry; and a pocketbook containing the defendant's passport, multiple identification cards, and multiple social security cards.

         The defendant later filed an insurance claim with Esurance for damage to her car. The defendant's mother filed an insurance claim with Homesite Insurance Company (Homesite) for damage to the house.

         Carmen Febles and Juan Febles met with police on May 31, 2011, and gave statements concerning their encounter with the defendant on the day of the fire. Stratford police separately administered photographic arrays to Carmen Febles and Juan Febles. Both identified the defendant as the woman they encountered at the fire scene. Wakeley likewise gave a statement to police, and also identified the defendant in a photographic array as the woman she talked to at the fire scene.

         In an amended information, the state charged the defendant with arson in the first degree as a principal and an accessory, conspiracy to commit arson in the first degree, and two counts of insurance fraud. Prior to trial, the defendant filed a motion to suppress the pretrial identifications made by the Febleses and Wakeley, and sought to prevent them from making in-court identifications. The court denied the motion.

         After a jury trial, the defendant was convicted on all counts. The defendant was sentenced to a total effective term of twenty years of incarceration, execution suspended after twelve years, and five years of probation. One of the conditions of the defendant's probation was that she pay $337, 000 in restitution to the insurer of her mother's home, Homesite Insurance Company. This appeal followed.

         I

         The defendant first claims that the court improperly denied her motion to suppress identifications made by the Febleses and Wakeley. Specifically, the defendant argues that the identification procedure used by police was suggestive and unreliable, and, therefore, the trial court should have suppressed the pretrial and in-court identifications of the defendant by these witnesses. We are not persuaded.

         The following additional facts are relevant to the present claim. As we stated previously in this opinion, prior to trial, the defendant filed a motion to suppress evidence of pretrial identifications made by Carmen Febles, Juan Febles, and Wakeley. Additionally, she asked the court to prevent these witnesses from making in-court identifications. On October 29, 2015, the court held a hearing on the defendant's motion at which it heard testimony from two Stratford police officers, Edward Leary and Lawrence Overby, and a Milford police officer, Bruce Carney.[1] All three witnesses were shown arrays consisting of the same eight photographs appearing on a single sheet of paper, although the arrangement of the photographs in each array was different. The cover sheet attached to each array was identical, each cover sheet reflected the witness' sworn statement that he or she had identified the person he or she had encountered at the fire scene, and each cover sheet contained instructions that had been initialed by each witness.[2]

         Leary testified in relevant part that he administered the photographic array to Carmen Febles. He lacked a recollection of the circumstances surrounding the array, but, relying on the array and the cover sheet attached to it, he testified that he had administered the array to Carmen Febles, that he followed standard police procedures for administering the array, and that Carmen Febles had identified the defendant. He testified that it would have been the normal practice for the Stratford police to have had two officers present during the administration of the array. Moreover, Leary testified that standard police procedure would entail his reading the instructions on the cover sheet to the witness and having the witness sign his or her initials next to each instruction. He stated his belief that this procedure was followed with Carmen Febles because the cover sheet attached to the array reflected the witness' initials next to each instruction set forth thereon, and his signature appeared on the cover sheet, indicating that the witness swore before him that she understood the instructions and had identified the person selected from the array as the person she had encountered at the fire scene. Leary testified that the standard instructions indicated that a suspect may or may not be depicted in the array. Leary asserted that he would have followed protocol in administering the array and would not have directed Carmen Febles to choose any particular photograph. Leary also testified that Carmen Febles indicated her understanding of the instructions, and had selected the defendant's photograph from those appearing in the array by circling the defendant's photograph and signing her name near it.

         Overby testified at the suppression hearing that he took part in administering the photographic array to Juan Febles. Overby testified that although another police officer, Jeff Nattrass, had administered the array to Juan Febles, he nonetheless ‘‘notarized'' Juan Febles' statement that appears on the cover sheet of the array that the photograph he had selected was that of the person he had observed at the fire scene. Overby testified that, in accordance with standard police procedure, the cover sheet of the array reflects that Juan Febles had initialed next to each of the standard array instructions, one of which stated that ‘‘[t]he person you saw may or not be in the photograph.'' Moreover, the array reflected that Juan Febles circled the defendant's photograph in ...


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