State v. Fuller ( 2015 )

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STATE OF CONNECTICUT v. KEITH FULLER
(AC 36178)
Beach, Keller and Harper, Js.
Argued March 11—officially released July 7, 2015
(Appeal from Superior Court, judicial district of New
Haven, geographical area number twenty-three,
Mullins, J.)
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 Dear-
ington, state’s attorney, and Marc G. Ramia, senior
assistant state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Keith Fuller, appeals from
the judgment of conviction, rendered following a jury
trial, of burglary in the first degree in violation of Gen-
eral Statutes § 53a-101 (a) (3) and larceny in the sixth
degree in violation of General Statutes § 53a-125b (a).1
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 pre-
viously 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 physi-
cally 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.
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 New-
son’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 con-
cerning 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 defen-
dant’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 Ave-
nue and Maple Street, which was approximately one
to two minutes away. There, by means of a show-up
identification procedure,2 Ziebell immediately and posi-
tively identified the defendant as the perpetrator.3 Fol-
lowing Ziebell’s identification, the defendant was
arrested and charged with crimes related to this inci-
dent.4 The defendant appealed to this court following
his conviction of burglary in the first degree and larceny
in the sixth degree.
Because the sole claim of instructional error raised
in the present appeal relates to the evidence of the
identification of the defendant made by Ziebell upon
his arrival at the area of Winthrop Avenue and Maple
Street, we shall turn our attention to the evidence
related thereto. Ziebell testified that, within minutes
after the police first arrived at his residence, he was
transported in the back of a police cruiser to the nearby
area of Winthrop Avenue and Maple Street, where he
was asked to identify a suspect who was in police
custody.
During his direct examination, the following colloquy
between the prosecutor and Ziebell occurred:
‘‘Q. And what happened when you arrived at that
location?
‘‘A. I [saw] . . . that there was officers already on
the scene and that they had somebody in custody. They
had this guy in custody. The guy who was coming out
the front door with the T.V.
‘‘Q. And did they ask you to identify the individual?
‘‘A. Yes, they did.
‘‘Q. The individual that they asked you to identify,
did you recognize the individual—
‘‘A. Immediately.
‘‘Q. —at that point? And how did you recognize
that person?
‘‘A. By his face, his build, base build, clothing.
‘‘Q. And was that the individual that you saw leaving
your residence with your T.V.?
‘‘A. Yeah, he was three feet away from me when I
first confronted him. The length of my dogs.’’
Later, during the state’s direct examination of Ziebell,
the following colloquy between the prosecutor and Zie-
bell occurred:
‘‘Q. Now, when you were brought to Winthrop [Ave-
nue] and Maple [Street] . . . you were asked to identify
the individual. Was there any doubt in your mind that
the individual you saw that evening was the individual
that you saw holding your T.V. on your front porch?
‘‘A. No doubt, whatsoever. I mean, he was . . .
closer than we are apart right now.’’
During their direct examinations by the state, both
Ziebell and Newson identified the defendant, who was
present in the courtroom at trial, as the perpetrator of
the crimes. In this appeal, the defendant does not raise
any claims related to these in-court identifications.
Also relevant to the issue of the show-up identifica-
tion made by Ziebell, the state presented testimony from
Detective Jessica Stone, who was a patrol officer with
the New Haven police department on March 29, 2012.
Stone testified that she responded to the crime scene on
Goffe Terrace, received a description of the automobile
involved, and, within minutes of her arrival, transported
Ziebell to the suspect that the police had in custody
at Winthrop Avenue near Maple Street. The following
colloquy between the prosecutor and Stone occurred:
‘‘Q. And what happened when you arrived at that
particular location?
‘‘A. I conducted a one-on-one ID with my victim and
the suspect.
‘‘Q. And can you explain . . . what a one-on-one
identification is and what the purpose of that investiga-
tion was?
‘‘A. So a one-on-one is when you have a victim in a
vehicle. He stays in the back of my patrol car and we
take our spotlight of our patrol car and we put it on
the person that could or could not be the suspect and
approximately twenty feet from the person that’s sup-
posedly the suspect and you put the light on them and
. . . the patrol officer will take the suspect and he
stands out there and the victim will say . . . if it is or
isn’t a suspect and they’re a hundred percent sure or
they’re not a hundred percent sure.’’ Stone testified that
by means of that procedure, Ziebell positively identified
the defendant as the person whom he had observed
exiting his home.
The defendant did not move to suppress evidence
related to Ziebell’s identification of him on March 29,
2012, nor did he object to the presentation of evidence
concerning the show-up identification. Moreover, the
defendant did not request that the court provide the jury
with any instructions regarding the evidence related to
the identification, including Ziebell’s statements that he
did not have any doubt about his identification. The
court instructed the jury in relevant part that ‘‘the State
must prove each element of each offense including the
identification of the defendant beyond a reasonable
doubt.’’ The court, however, did not provide the jury
with the type of instructions that are at issue in the
present claim, and the defendant did not take an excep-
tion to the court’s charge on this ground.
For the first time on appeal, the defendant claims
that the court erroneously failed ‘‘to provide the jury
with necessary cautions to avoid the risks of misidentifi-
cation from the suggestive show-up procedure . . . .’’
Also, for the first time on appeal, the defendant claims
that the court erroneously failed to instruct the jury
that Ziebell’s confident assessment at trial of his identifi-
cation ‘‘has a weak correlation to [the] accuracy [of his
identification].’’ The defendant characterizes the ‘‘criti-
cal issue’’ in this case as one of identification. He argues:
‘‘The circumstances of Ziebell’s identification of the
defendant constitute[d] an inherently suggestive show-
up identification. The police told [Ziebell] that they had
apprehended someone, took him to that person, who
was in custody, shined a spotlight on the suspect and
displayed the accused surrounded by police officers.
After Ziebell identified the defendant as the robber, the
police kept him on the scene for about half an hour
watching as the officers seized items from him and
brought them to Ziebell for confirmation that these
[items] belonged to him.’’5 Further, he argues that the
record clearly demonstrates that the police had elicited
Ziebell’s identification of him by means of a suggestive
show-up procedure and that the police thereafter had
relied on Ziebell’s positive identification of him.
The defendant raises an unpreserved claim of instruc-
tional error related to the reliability of identification
evidence. The claim is not constitutional in nature. See,
e.g., State v. Bullock, 155 Conn. App. 1, 19–20, 107 A.3d
503, cert. denied, 316 Conn. 906, A.3d (2015),
and cases cited therein. In an attempt to obtain extraor-
dinary review of the claim, the defendant urges us to
exercise our supervisory powers to require that a trial
court deliver cautionary instructions to juries in cases
such as the present case, which he characterizes as
involving a suggestive show-up identification proce-
dure. In so doing, he relies on State v. Ledbetter, 275
Conn. 534, 579, 881 A.2d 290 (2005), cert. denied, 547
U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006), in
which our Supreme Court, in the exercise of its supervi-
sory powers, directed trial courts to instruct juries
about the risk of misidentification in cases in which ‘‘(1)
the state has offered eyewitness identification evidence;
(2) that evidence resulted from an identification proce-
dure; and (3) the administrator of that procedure failed
to instruct the witness that the perpetrator may or may
not be present in the procedure.’’ In his appeal to the
exercise of our supervisory authority, the defendant
urges us to apply the ‘‘reasoning and principles devel-
oped . . . in Ledbetter’’ to the unique facts of the pre-
sent case. In the alternative, the defendant urges us to
interpret Ledbetter such that it required the court to
deliver cautionary instructions in the present case and,
thus, the court’s failure to deliver such instructions
constituted plain error.
I
The state argues that we should decline to review
the defendant’s claim under any appellate standard
because, at trial, he implicitly waived the present objec-
tion to the court’s jury charge by expressing his satisfac-
tion with the court’s proposed charge that did not
include the instruction at issue. Relevant to the issue
of waiver in the context of jury instruction claims, our
Supreme Court stated that ‘‘when the trial court pro-
vides counsel with a copy of the proposed jury instruc-
tions, allows a meaningful opportunity for their review,
solicits comments from counsel regarding changes or
modifications and counsel affirmatively accepts the
instructions proposed or given, the defendant may be
deemed to have knowledge of any potential flaws
therein and to have waived implicitly the constitutional
right to challenge the instructions on direct appeal.
Such a determination by the reviewing court must be
based on a close examination of the record and the
particular facts and circumstances of each case.’’ State
v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).
To determine whether, as is argued by the state, the
Kitchens doctrine of implicit waiver is implicated by
the unique circumstances of this case, we will turn
to a close examination of the record of proceedings
at trial.6
The record reflects that the presentation of evidence
in this case took place on May 29 and May 30, 2013.
On May 29, 2013, the court informed the prosecutor
and the defendant’s two trial attorneys that it would
email the parties a copy of its proposed jury charge
that evening, or provide them with a copy of its pro-
posed charge on the morning of the next day, May 30,
2013. Also, the court instructed the parties to provide
it with any requests to charge on the morning of May
30, 2013, in advance of a charge conference to be held
later that afternoon.
Although it is not clear from the record whether the
court sent a copy of its proposed charge to the parties
on the prior evening or whether the court delivered a
copy to the parties on that day, the record reflects that
at the beginning of the proceeding that commenced on
the morning of May 30, 2013, the parties represented
that they were in possession of a copy of the court’s
proposed charge. Thereafter, prior to the lunch recess,
the state concluded its case-in-chief; the state rested
its case, the court took up the issue of, and ultimately
denied, the defendant’s motion for a judgment of acquit-
tal, and the defense rested its case. Outside of the jury’s
presence, the court held a charging conference on the
record with the attorneys. During this conference, the
court and the attorneys discussed specific instructions
contained in the court’s proposed charge. The court
made reference to specific instructions and provided
the parties with an overview of its charge by referring
to the various instructions set forth in its proposed
charge. During the conference, both of the defendant’s
attorneys voiced objections about various instructions,
or the absence of instructions, in the proposed charge.
Neither party, however, raised any issue with regard
to the lack of an instruction concerning eyewitness
identification evidence. At the conclusion of the confer-
ence, the court asked the parties if they wished to
request any other instructions, to which one of the
defendant’s attorneys replied: ‘‘None from the defense.’’
Following the conference, the court stood in recess
for lunch. During the recess, which lasted approxi-
mately one and one half hours, the court incorporated
changes to the charge that it had discussed with the
parties during its earlier conference. Thereafter, the
court provided copies of its revised charge to the par-
ties. When the proceeding resumed following the lunch
recess, the court reviewed with the parties the extent
of the changes it had made as a result of the charging
conference, and asked the parties if there was ‘‘anything
else’’ to discuss before proceeding to closing argument.
One of the defendant’s attorneys replied: ‘‘Nothing from
the defense.’’ Following closing arguments, the court
delivered its charge to the jury. Neither the prosecutor
nor the defendant’s attorneys took any exceptions to
the court’s charge.
Thus, the record demonstrates that the court actively
circulated and sought review of a proposed charge that
did not contain an instruction addressing the fallibility
of eyewitness identifications. After being afforded a
meaningful opportunity to review the charge,7 the
defendant’s attorneys did not request such an instruc-
tion and did not object to the charge on this ground.
When the court, on multiple occasions, solicited com-
ments from counsel concerning its proposed charge,
neither of the defendant’s attorneys raised the present
concern, but replied that there were no issues with the
charge apart from those concerns that they had raised
previously, which were unrelated to the present claim.
We conclude that, under Kitchens, the defendant
implicitly waived his claim that the court improperly
omitted an instruction related to the fallibility of the
eyewitness identification evidence.
II
Because we have concluded that, at trial, the defen-
dant waived his right to raise the present claim of
instructional error, we reject his argument that the
court committed plain error. As our Supreme Court
observed in Kitchens, ‘‘a valid waiver precludes a find-
ing that a jury instruction constitutes plain error
because a valid waiver means that there is no error to
correct.’’ State v. Kitchens, supra, 299 Conn. 474 n.18;
see also Mozell v. Commissioner of Correction, 291
Conn. 62, 70, 967 A.2d 41 (2009) (reasoning that valid
waiver thwarts ‘‘review’’ under plain error doctrine);
cf. State v. Darryl W., 303 Conn. 353, 371–72 n.17, 33
A.3d 239 (2012) (noting tension between certain
Supreme Court decisions as to whether reversal on the
basis of plain error could be available in cases in which
alleged error is causally connected to defendant’s own
behavior). This court has adhered to the view that
waiver thwarts a finding that plain error exists. See,
e.g., State v. McClain, 154 Conn. App. 281, 293, 105 A.3d
924 (2014); State v. Reddick, 153 Conn. App. 69, 82, 100
A.3d 439, appeal dismissed, 314 Conn. 934, 102 A.3d 85,
and cert. denied, 315 Conn. 904, 104 A.3d 757 (2014);
State v. Cancel, 149 Conn. App. 86, 102–103, 87 A.3d
618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014).
III
Although the state urges us to conclude that the
defendant’s waiver likewise is fatal to his request that
we exercise our supervisory authority to review the
claim, we observe that our case law does not lead us
to conclude that a waiver necessarily precludes a
reviewing court from exercising its inherent supervi-
sory authority, but that such a determination is made
in light of the particular facts of each case. Compare
State v. Revelo, 256 Conn. 494, 502–504, 775 A.2d 260
(after concluding that ‘‘case presents one of the rare
exceptions to the general rule of unreviewability’’ court
exercises supervisory authority to review waived
claim), cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151
L. Ed. 2d 558 (2001); State v. Castillo, 121 Conn. App.
699, 716 n.17, 998 A.2d 177 (court exercises supervisory
authority to review waived claim), cert. denied, 297
Conn. 928, 998 A.2d 1196, cert. denied, 562 U.S. 1094,
131 S. Ct. 803, 178 L. Ed. 2d 537 (2010) with State v.
Opio-Oguta, 153 Conn. App. 107, 120 n.12, 100 A.3d 461
(court concludes that there is ‘‘[no] compelling reason’’
to exercise supervisory authority to review waived
claim), cert. denied, 314 Conn. 945, 102 A.3d 1115
(2014); State v. Gentile, 75 Conn. App. 839, 848, 818
A.2d 88 (court concludes that there is ‘‘no reason’’ to
exercise supervisory authority to review waived claim),
cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).
‘‘Supervisory authority is an extraordinary remedy
that should be used sparingly . . . . Although [a]ppel-
late courts possess an inherent supervisory authority
over the administration of justice . . . [that] authority
. . . is not a form of free-floating justice, untethered
to legal principle. . . . Our supervisory powers are not
a last bastion of hope for every untenable appeal. They
are an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole. . . . Consti-
tutional, statutory and procedural limitations are gener-
ally adequate to protect the rights of the defendant and
the integrity of the judicial system. Our supervisory
powers are invoked only in the rare circumstance [in
which] these traditional protections are inadequate to
ensure the fair and just administration of the courts.
. . . Overall, the integrity of the judicial system serves
as a unifying principle behind the seemingly disparate
use of our supervisory powers. . . . Thus, we are more
likely to invoke our supervisory powers when there is
a pervasive and significant problem . . . or when the
conduct or violation at issue is offensive to the sound
administration of justice . . . .’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Edwards, 314 Conn. 465, 498–99, 102 A.3d 52
(2014); see also State v. Rose, 305 Conn. 594, 607, 46
A.3d 146 (2012) (emphasizing well-settled view that
supervisory authority is an extraordinary remedy to be
exercised sparingly); State v. Wade, 297 Conn. 262, 296,
998 A.2d 1114 (2010) (same); State v. DeJesus, 288 Conn.
418, 482, 953 A.2d 45 (2008) (same).
Assuming that, despite a waiver, a record is adequate
to review a waived claim of error, a waiver does not
otherwise legally or logically preclude a reviewing court
from exercising its supervisory authority to review such
a claim, and, thereafter, to order what, if any, remedy
that it deems appropriate. Waiver, of course, may arise
in a variety of contexts, and ‘‘[t]here is no dispute that,
for reasons of strategy, counsel may knowingly and
intentionally waive a defendant’s constitutional right to
a particular jury instruction despite the fundamental
nature of the defendant’s due process entitlement to
an adequate jury charge.’’ State v. Kitchens, supra, 299
Conn. 533–34 (Palmer, J., concurring). Yet, we recog-
nize that, having waived a claim of instructional error,
even one of constitutional magnitude, an appellant
bears a heavy burden of demonstrating that it is appro-
priate for a reviewing court, in the exercise of its super-
visory authority, to review such a claim on appeal. This
seems to be especially true in cases in which there are
indications that a waiver was the product of a trial
strategy. State v. Berube, 256 Conn. 742, 748–49, 775
A.2d 966 (2001) (discussing waiver of constitutional
rights based on trial strategy). In the interest of fairness,
both to the court and the opposing party, it is appro-
priate that parties to an appeal be bound by the conse-
quences of their trial strategy. ‘‘Our appellate courts
frequently have stated that a party may not pursue one
course of action at trial for tactical reasons and later
on appeal argue that the path he rejected should now
be open to him.’’ (Internal quotation marks omitted.)
State v. Davis, 76 Conn. App. 653, 662, 820 A.2d 1122
(2003). To allow the defendant to seek reversal now
that his trial strategy has failed would amount to
allowing him to induce potentially harmful error, and
then ambush the state and the trial court with that claim
on appeal. State v. Foster, 293 Conn. 327, 339, 977 A.2d
199 (2009); State v. Colon, 272 Conn. 106, 246, 864 A.2d
666 (2004).
Although we may infer from the defendant’s implicit
waiver of any objection to the court’s charge that the
defense assented to that charge, there are even more
compelling reasons that militate against the exercise
of our supervisory authority in the present case. The
defendant takes issue with the court’s charge because,
characterizing the case as resting on the factual issue
of the identity of the individual at his residence on the
evening of March 29, 2012, he argues that the court
should have instructed the jury concerning the fallibility
of Ziebell’s identification of him as that individual. That
is, he now raises as a claim of error that the court did
not proactively deliver an instruction that would have
alerted the jury to the fallibility of Ziebell’s identification
of him during the show-up procedure and Ziebell’s testi-
mony that he was confident in the accuracy of his identi-
fication.
Contrary to the defendant’s present characterization
of the central factual issue before the jury, a review of
what transpired at trial reflects that not only did the
defense not challenge in any meaningful manner the
identification evidence presented by the state or request
the instruction at issue, but that the defendant’s theory
of the case, developed during the presentation of evi-
dence and articulated during closing argument, clearly
was harmonious with the very evidence that is the sub-
ject of the present claim. The theory was that, by virtue
of a consensual agreement between the defendant and
Ziebell, the defendant was involved in the incident at
Ziebell’s home on the evening of March 29, 2012, and
in possession of the items taken therefrom. Thus, at
trial, the defendant effectively conceded the element
of identity.
Specifically, we observe that, at trial, the defendant
presented evidence that Ziebell had a criminal history.
During cross-examination, the defense elicited testi-
mony from Ziebell that he was ‘‘an addict in recovery’’
and that he had a prior felony conviction for robbery
that was related to his substance abuse. The defendant’s
attorney asked Ziebell several questions in an attempt
to demonstrate that he was familiar with the defendant
prior to the events at issue, he was addicted to illegal
drugs at the time of the events at issue, and that the
defendant was present at his house pursuant to an
agreement between the defendant and Ziebell related
to an illegal drug exchange. The defendant’s attorney
asked: ‘‘Isn’t it true that this was more than someone
coming out of your house and, in fact, that you knew this
person was coming to your house?’’ Ziebell answered in
the negative. The defendant’s attorney asked: ‘‘Isn’t it
true . . . you’ve known [the defendant] for a year and
a half?’’ Ziebell answered that this was not true. The
defendant’s attorney asked: ‘‘Isn’t it true that . . . you
allowed him to use an unemployment card before?’’
Ziebell answered that this was not true. The defendant’s
attorney asked: ‘‘Isn’t it true, Mr. Ziebell, that the reason
why you didn’t immediately go into the house and check
on your wife and son is that your wife already had come
out of the house and saw you with the T.V.?’’ Ziebell
replied, ‘‘No.’’ The defendant’s attorney asked: ‘‘Isn’t it
. . . true that the reason why you called the police is
that you had to cover the fact that you were taking
items out of your own home?’’ Ziebell replied, ‘‘No.’’
A review of the defendant’s closing argument reveals
that the theory of defense was to challenge Ziebell’s
credibility and to argue that the most reasonable inter-
pretation of the evidence was that Ziebell was the party
who removed the stolen items from his home and volun-
tarily gave them to the defendant in exchange for illegal
drugs.8 During argument, the defendant’s attorneys
stated: ‘‘The defense all along has contended that this
was a quid pro quo. This wasn’t a burglary. This . . .
didn’t involve threatening or a larceny. This was a quid
pro quo.’’ The defense did not attempt to challenge the
accuracy of Ziebell’s observations or his identification
of the defendant; in no way did the defense suggest that
Ziebell mistakenly identified the defendant. Instead, the
defendant’s attorney devoted the entirety of her argu-
ment to challenging Ziebell’s version of events, sug-
gesting that his account of what had occurred was not
credible in its own right and that his actions during
the purported burglary actually revealed his attempt to
conceal the true nature of what had transpired between
himself and the defendant. The defendant’s attorney
argued that Ziebell had called 911 ‘‘to cover himself.’’
She argued: ‘‘We contend that Mr. Ziebell made the 911
call because he knew that his wife . . . who inter-
rupted this quid pro quo, would be upset with him
because of the fact that he was taking a T.V. out of the
house.’’ The defendant’s attorney referred to evidence
that Ziebell had a history of unemployment and that
his financial circumstances may have been such that
he did not have cash to purchase drugs. She argued: ‘‘I
don’t know if Mrs. Ziebell was working. I don’t know
what their financial situation was. He testified that he
used cash in the past [to purchase drugs], but . . .
quid pro quos happen.’’ She went on to argue that the
evidence supported a finding that Ziebell probably used
illegal drugs at the time of the incident and that this
incident involving the defendant ‘‘was a trade.’’
As reflected by these facts, the theory of the case
advanced by the defense at trial was that the defendant
was present at the alleged crime scene and that the
defendant was in possession of the items purportedly
stolen from Ziebell’s residence as part of a consensual
yet illegal transaction between the defendant and Zie-
bell, the nature of which, at the very least, Ziebell
intended to conceal from his wife by means of falsely
reporting the incident to the police. By calling the occur-
rence ‘‘a trade’’ and ‘‘a quid pro quo,’’ the defense, far
from suggesting that Ziebell was unable accurately to
identify the person present at his residence on March
29, 2012, unmistakably asked the jury to infer that the
defendant and Ziebell knew one another and had
reached an agreement that involved the defendant’s
receipt of the items at issue.
The defendant now claims that the court improperly
failed to instruct the jury concerning the probability
that Ziebell may have misidentified him. The defendant,
therefore, essentially urges us to conclude that the
court, sua sponte, should have provided the jury with
an instruction that would have undermined his theory
of defense by inviting the jury to consider whether
the identification made by Ziebell, that was entirely
consistent with the defense’s theory of what had tran-
spired during the events at issue, was the product of a
flawed identification procedure. Stated otherwise, any
error on the court’s part concerned an issue that, as a
result of defense strategy, was not at issue in the case.
The claim, essentially arguing that the trial court sua
sponte should have taken action that was contrary to
the defense, weighs heavily against the exercise of our
supervisory authority. See, e.g., State v. Ashe, 74 Conn.
App. 511, 527, 812 A.2d 194 (exercise of supervisory
authority to review unpreserved claim of prosecutorial
impropriety unwarranted because claimed impropriety
concerned matter that was not central to the factual
issues disputed by parties), cert. denied, 262 Conn. 949,
817 A.2d 108 (2003).
Additionally, we already have explained that the
defendant argues that the identification procedure in
this case either fell within the ambit of Ledbetter or
that this court should extend Ledbetter such that it
applies in a case involving the type of identification
procedure at issue. Even if it were appropriate for us
to review the claim under any extraordinary means of
review, we observe that the claim would fail because,
in light of the defendant’s theory of the case, it did not
involve a significant risk of misidentification. Ledbetter
applies in cases in which there is a risk of misidentifica-
tion, not in every case involving an identification proce-
dure. Thus, in exercising its supervisory authority to
lessen the risk of misidentification, the court in Ledbet-
ter stated: ‘‘Therefore, unless there is no significant
risk of misidentification, we direct the trial courts of
this state to incorporate an instruction in the charge to
the jury, warning the jury of the risk of misidentification,
in those cases where: (1) the state has offered eyewit-
ness identification evidence; (2) that evidence resulted
from an identification procedure; and (3) the adminis-
trator of that procedure failed to instruct the witness
that the perpetrator may or may not be present in the
procedure.’’ (Emphasis added; footnote omitted.) State
v. Ledbetter, supra, 275 Conn. 579.
The defendant implicitly waived any objection to the
court’s charge on the basis of its failure to instruct the
jury concerning the risk of misidentification. Moreover,
when viewed in light of the defendant’s theory of the
case, which eliminated the risk of misidentification, this
waiver appears to have been part of a rational trial
strategy that provided explanation, contrary to that pre-
sented by the state, for the defendant’s activities at
Ziebell’s residence. The present circumstances do not
call into question the integrity of the judicial system or
implicate any of the other serious concerns that would
warrant the exercise of our supervisory powers to
afford the defendant relief.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court imposed a total effective sentence of fifteen years incarcera-
tion, execution suspended after ten years, followed by five years of proba-
tion. Additionally, we note that the jury returned a verdict of not guilty with
regard to one count of threatening in the second degree in violation of
General Statutes § 53a-62 (a) (2).
2
A ‘‘show-up’’ procedure is ‘‘the presentation of a single suspect to an
eyewitness for possible identification.’’ State v. Findlay, 198 Conn. 328, 337,
502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d
721 (1986).
3
After Ziebell identified the defendant as the perpetrator, Ziebell identified
a number of items that the police had found on the defendant as belonging
to him. These items included a television remote control, two controllers
for a videogame system, a Gameboy system, and prescription medicine. The
police returned these items to Ziebell.
4
The police ascertained the true identity of the defendant, who initially
had falsely identified himself to the police as ‘‘Danny Mobley,’’ by means
of his fingerprints.
5
We observe that, although the defendant uses the word ‘‘robber’’ in
argument before this court, he was not charged with the crime of robbery.
6
To the extent that the defendant argues that Kitchens should be over-
ruled, we observe that such an argument cannot persuade this court. ‘‘As
an intermediate court of appeal, we are unable to overrule, reevaluate, or
reexamine controlling precedent of our Supreme Court.’’ State v. LaFleur,
156 Conn. App. 289, 302, 51 A.3d 1048 (2015).
7
In opposing the state’s reliance on Kitchens, the defendant argues that
the court did not afford the parties a meaningful opportunity to review its
proposed charge. The defendant does not dispute that counsel had a copy
of the court’s proposed charge prior to the time that the proceeding com-
menced on the morning of May 30, 2013, that the court discussed the pro-
posed charge with counsel prior to the lunch recess, that the defendant had
requested certain instructions during that conference, that counsel thereafter
had an hour and a half lunch recess, or that, after the lunch recess but before
it delivered its charge, the court addressed counsel concerning changes it
had made to its proposed charge. Nor does the defendant contest that, at trial,
his trial attorneys expressed satisfaction with the court’s proposed charge.
Our case law does not provide an exact definition of what constitutes a
meaningful opportunity for review under Kitchens. See State v. Kitchens,
supra, 299 Conn. 495 n.28 (‘‘The significance of a meaningful opportunity
for review and comment cannot be underestimated. Holding an on-the-
record charge conference, and even providing counsel with an advance copy
of the instructions, will not necessarily be sufficient in all cases to constitute
waiver of Golding review if defense counsel has not been afforded adequate
time, under the circumstances, to examine the instructions and to identify
any potential flaws.’’); see also State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989). Prior decisions of this court have held that an opportunity
to review a proposed charge overnight amounts to an opportunity for mean-
ingful review. See, e.g., State v. Lee, 138 Conn. App. 420, 453–54, 52 A.3d
736 (2012); State v. Fontaine, 134 Conn. App. 224, 231, 40 A.3d 331, cert.
denied, 304 Conn. 926, 41 A.3d 1051 (2012). There is no basis, however, to
suggest that a meaningful opportunity for review necessarily involves an
opportunity to review proposed instructions overnight.
A close review of the events involving the court’s proposed charge, as set
forth previously in this opinion, reflects that the parties were in possession of
the court’s proposed charge prior to the start of the proceeding on May 30,
2013. During the charging conference that took place prior to the lunch
recess, the court provided counsel with an overview of the instructions set
forth in its proposed charge. During the conference, the defendant’s attor-
neys objected to certain instructions and the absence of other instructions.
The comments made by the defendant’s attorneys demonstrated that they
were, to some degree, familiar with the content of the charge. Thereafter,
the court afforded the parties a lunch recess that was one hour and a half
in duration. When court reconvened, the court indicated that it had revised
its proposed charge in accordance with the charging conference. Both prior
to and following the lunch recess, in response to inquiry by the court, the
defense indicated that it did not have any additional objections to the pro-
posed charge. Beyond their failure to request, either orally or in writing,
the instruction at issue in the present claim, or to state an objection on the
ground that the proposed charge did not contain such an instruction, at no
time did either of the defendant’s attorneys indicate that they did not have
an opportunity to review the proposed charge or that they desired a greater
opportunity to do so.
This trial was neither lengthy nor overly complex, and the same is true
of the court’s charge. Beyond the inclusion of several boilerplate instruc-
tions, the court provided instructions concerning three substantive offenses.
The defendant’s claim concerns the absence of a specific instruction, not
the precise wording of one of the court’s proposed instructions. In light of
all of the factors discussed herein, we are persuaded that the defense had
a meaningful opportunity to review the court’s proposed charge, at least
for the limited purpose of determining whether it included an instruction
concerning the fallibility of eyewitness identification evidence.
8
The defense argued that Newson’s testimony was not credible and that
he had ‘‘an interest’’ in corroborating the version of events related by his
neighbor, Ziebell.