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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 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 notrequest 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 attrial 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 showup 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 defendantraises an unpreserved claim of instructional 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 extraordinary 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 procedure. 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 supervisory 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 procedure; 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 developed . . . in Ledbetter’’ to the unique facts of the present 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 objection to the court’s jury charge by expressing his satisfaction 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 provides counsel with a copy of the proposed jury instructions, 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 proposed 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 acquittal, 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 conference, 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 approximately 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 parties. 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 instruction and did not object to the charge on this ground.

When the court, on multiple occasions, solicited comments 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 defendant 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 finding 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 supervisory 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]ppellate 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. . . . Constitutional, statutory and procedural limitations are generally 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 orlogically 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 recognize that, having waived a claim of instructional error,

even one of constitutional magnitude, an appellant

bears a heavy burden of demonstrating that it is appropriate for a reviewing court, in the exercise of its supervisory 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 appropriate that parties to an appeal be bound by the consequences 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 testimony that he was confident in the accuracy of his identification.

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 orrequest

the instruction at issue, but that the defendant’s theory

of the case, developed during the presentation of evidence and articulated during closing argument, clearly

was harmonious with the very evidence that is the subject 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 testimony 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 interpretation of the evidence was that Ziebell was the party

who removed the stolen items from his home and voluntarily 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 argument to challenging Ziebell’s version of events, suggesting 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 interrupted 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 Ziebell, 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 occurrence ‘‘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 transpired 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 misidentification, not in every case involving an identification procedure. Thus, in exercising its supervisory authority to

lessen the risk of misidentification, the court in Ledbetter 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 ofthe 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 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 presented 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 incarceration, execution suspended after ten years, followed by five years of probation. 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 overruled, 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 commenced on the morning of May 30, 2013, that the court discussed the proposed charge with counsel prior to the lunch recess, that the defendant had

requested certain instructions during that conference,that counselthereafter

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 contestthat, attrial,

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-therecord 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 meaningful 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 attorneys 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 proposed 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 instructions, 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.