Judicial District of Hartford


      Criminal; Whether the Trial Court's Failure to Give a Ledbetter Instruction on Risk of Misidentification Constituted Plain Error.  The defendant appealed to the Appellate Court from convictions of assault and attempt to commit robbery, arguing that the trial court improperly failed to instruct the jury, sua sponte, as to the risk of misidentification in accordance with State v. Ledbetter, 275 Conn. 534, cert. denied, 547 U.S. 1082 (2005).  In Ledbetter, the Supreme Court held that "unless there is no significant risk of misidentification, we direct the trial courts . . . 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 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."  Although the Supreme Court did not delineate all of the potential factual variations that might result in a finding of no significant risk of misidentification, it noted that one example would be where the witness knew the defendant.  It also noted that the trial court should make its determination as to whether a risk of misidentification exists based on the totality of the circumstances.  Here, the defendant claimed that a Ledbetter instruction was necessary because the victim identified him through a photographic array and the detective failed to warn the victim that the perpetrator might not be depicted in the array.  He sought review of this unpreserved claim under the plain error doctrine.  The Appellate Court (128 Conn. App. 1) rejected the claim, concluding that the failure to give the instruction did not present the type of extraordinary situation warranting reversal under the plain error doctrine.  It stated that even if it were to assume that the trial court erred in not giving the instruction, it could not conclude that the trial was fundamentally unfair or manifestly unjust.  The court reasoned that the victim had the opportunity to view the defendant prior to the crimes, that she recognized him as a prior customer in her store and that her identification was corroborated by fingerprint evidence.  Moreover, it stated that when the detective confronted the defendant with the fingerprint evidence, he became visibly upset and ran out of the interview room.  It therefore determined that a jury could have found consciousness of guilt.  In this appeal, the Supreme Court will determine whether the Appellate Court properly found that the trial court's failure to give a Ledbetter instruction did not warrant reversal under the plain error doctrine.