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
...