State v. Fuller

STATE OF CONNECTICUT v. KEITH FULLER

AC 36178

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued March 11, 2015

July 7, 2015

Beach, Keller and Harper, Js.

(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 Dearington, 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 General 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 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.

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,² Ziebell immediately and positively identified the defendant as the perpetrator.³ Following Ziebell's identification, the defendant was arrested and charged with crimes related to this incident.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 Ziebell occurred:

"Q. Now, when you were brought to Winthrop [Avenue] 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 identification 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 investigation 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 supposedly 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 exception 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 misidentification 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 identification "has a weak correlation to [the] accuracy [of his identification]." The defendant characterizes the "critical 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...