Judicial District of Fairfield


      Criminal; Whether Court Improperly Failed to Give Ledbetter Instruction on Risk of Eyewitness Misidentification; Whether Plain Error Review Available for Claim of Instructional Error that was Waived Under Kitchens; Whether Court Conducted Adequate Inquiry Into Possible Juror Bias.  The state charged the defendant with murder in connection with the shooting death of Larry Acevedo.  At trial, the state presented the testimony of several eyewitnesses.  Prior to charging the jury, the court provided counsel with its proposed instructions regarding eyewitness identification.  Defense counsel took no exceptions to those instructions, and the court instructed the jury in accordance with the proposed instructions.  Thereafter, during deliberations, an issue arose regarding possible juror partiality, and the court was informed that a trial spectator had approached one of the jurors in a public place and that the jurors had safety concerns.  When the court sent for the foreperson to conduct an in camera hearing regarding the issue, it learned that the jury had reached a verdict.  Prior to accepting the verdict, the court interviewed the jurors regarding the incident with the spectator, and all of the jurors indicated that the incident did not influence the verdict or their ability to be fair and impartial.  The court then accepted the jury's verdict of guilty.  In this appeal, the defendant argues that the court improperly failed to instruct the jury as to the risk of eyewitness misidentification pursuant to State v. Ledbetter, 275 Conn. 534 (2005).  In Ledbetter, the Supreme Court held that, unless there is no significant risk of misidentification, the court must instruct the jury of the increased risk of misidentification in those cases where (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may not be present in the procedure.  Here, the defendant claims that although the officer who conducted the identification procedure informed an eyewitness that the perpetrator might not be in the photographic array, the officer eliminated the top row of the array and had the eyewitness focus on a particular photograph.  The defendant thus claims that the officer's coaching was the exact type of procedure that the court was concerned with in Ledbetter and that an instruction on eyewitness misidentification was required.  He seeks review of this claim under the plain error doctrine.  The defendant also claims that the court improperly failed to conduct a sufficient inquiry into possible juror bias due to the jurors' safety concerns following the incident with the spectator.  Moreover, he argues that the court improperly excluded him from the in camera hearing concerning possible juror bias, thereby depriving him of his right to be present at all critical stages of his trial and his right to due process.  With regard to the defendant's Ledbetter claim, the state argues that plain error review is not available because the defendant waived the claim under State v. Kitchens, 299 Conn. 447 (2011), in that he was given a copy of the court's proposed instructions on eyewitness identification, had a meaningful opportunity to review them, and affirmatively accepted them.