31 A.3d 1283 (R.I. 2011), 2009-149-C.A., State v. Figuereo

Docket Nº:2009-149-C.A.
Citation:31 A.3d 1283
Opinion Judge:ROBINSON, Justice.
Party Name:STATE v. Raquel FIGUEREO.
Attorney:Aaron L. Weisman, Department of Attorney General, for State. Janice M. Weisfeld, Office of the Public Defender, for Defendant.
Case Date:December 09, 2011
Court:Supreme Court of Rhode Island

Page 1283

31 A.3d 1283 (R.I. 2011)




No. 2009-149-C.A.

Supreme Court of Rhode Island.

December 9, 2011

Page 1284

Aaron L. Weisman, Department of Attorney General, for State.

Janice M. Weisfeld, Office of the Public Defender, for Defendant.



ROBINSON, Justice.

On October 16, 2008, a Superior Court jury found the defendant, Raquel Figuereo, guilty of shoplifting. As her sole argument on appeal, the defendant contends that the justice of the Superior Court who presided over that trial erred in declining to instruct the jury that eyewitness certainty is not a reliable indicator of eyewitness accuracy.

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

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Facts and Travel

On September 27, 2007, Raquel Figuereo was charged by criminal complaint with " willfully tak[ing] possession of unpurchased goods to wit, assorted clothing, valued at $303.50, displayed, held, stored and offered for sale by [a retail store known as] Old Navy, with the intention of converting said goods to her own use without paying the purchase price thereof, in violation of [G.L.1956] § 11-41-20." 1 This charge stemmed from an incident involving defendant on September 14, 2007 (as further described below).

On December 11, 2007, after a trial in the District Court, defendant was found guilty as charged. She then opted to appeal to the Superior Court for a de novo trial, as was her right pursuant to G.L.1956 § 12-22-1.

Thereafter, on October 15 and 16, 2008, a jury trial was held in the Superior Court for Kent County; that trial also resulted in a guilty verdict. We describe below what transpired at the Superior Court trial to the extent necessary to provide context for the single issue raised on appeal.


The Testimony of Linda Lewis

Linda Lewis testified at trial that she is employed by the Old Navy store in the Warwick Mall,2 as a " loss prevention agent." She testified that in that capacity she carries out surveillance of the sales floor in an attempt to locate shoplifters. Ms. Lewis stated that, as of the time of trial, she had been employed as a loss prevention agent for two years.

Ms. Lewis went on to testify that, in preparation for becoming a loss prevention agent, she underwent thirty days of " extensive training on apprehension detail [and] surveillance." It was further her testimony that, as a result of her training, she looks for " people who rush into the store [and go] into a certain area." She also testified that she " look[s] for people who come in with empty bags or bags that are not associated [with] the area" as well as for people " who are not asking for customer service or [who are] avoiding the staff in the store." Ms. Lewis stated that she is trained to look for " four steps of proof" when scrutinizing individuals who are suspected of being shoplifters. She specified that those four steps are the following: (1) seeing the customer enter the area and select the merchandise; (2) seeing the customer conceal the merchandise and observing where the merchandise is concealed; (3) seeing the customer attempt to leave the store; and (4) observing the customer pass all points of sales with the concealed items. Ms. Lewis stated that, during her two years of experience as a loss prevention agent, she has never lost sight of a suspected shoplifter once she began to focus on that person.

Ms. Lewis testified that on September 14, 2007 she was working at the Old Navy store in the Warwick Mall. She stated that on that day she was dressed in an " undercover" manner— she explained that term as meaning that she was not clothed in a uniform that would indicate that she was part of store security. She testified that,

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on that day, eighty percent of her time was spent engaging in surveillance of the sales floor in order to look for the presence of the above-referenced indicators of a possible shoplifter.

Ms. Lewis proceeded to testify that, at a particular point in time during her surveillance on September 14, she observed three women enter the store through an entrance on the Old Navy store's " parking lot side." She further testified that two of the women had baby strollers with them and that there were toddlers inside the strollers. It was Ms. Lewis's testimony that all three of the women were " approximately twenty-five to thirty-five years old." Ms. Lewis testified that, upon entering the store, the three women headed directly for the " kids department" and then went to different locations within the store. Ms. Lewis testified that, at that juncture, she kept one of the three women under observation. (At trial, Ms. Lewis identified defendant as being the just-referenced woman whose actions she had kept under observation on September 14, 2007.)

Ms. Lewis testified that she observed defendant enter " the baby girl[s'] shop." She stated that the lighting in the baby girls' shop was extremely bright; she added that there are " hundreds of light bulbs, different light fixtures all throughout that area, throughout the whole store, actually." Ms. Lewis further testified that, while observing defendant, she stationed herself in the store's " maternity area," which was located across the aisle from the baby girls' shop. Ms. Lewis added that, even though there were some display fixtures between the maternity area and the baby girls' shop, she had a " one hundred percent visual throughout the whole area."

Ms. Lewis proceeded to testify that, at that point in her observation of defendant, defendant started to select merchandise and " was placing the items on top of the stroller [which] she had along with her." Ms. Lewis stated that she saw defendant select baby girl items in sizes 3 and 4T. It was Ms. Lewis's testimony that defendant was in the baby girls' shop for approximately ten to fifteen minutes; defendant then entered the boys' shop, which was adjacent to the baby girls' shop.

Ms. Lewis stated that she then observed defendant bend down to pick up her brown purse from underneath the stroller carriage. Ms. Lewis testified that defendant proceeded to remove the hangers from the items that she had selected and began folding those items into her brown purse. Ms. Lewis added that at that point in time she was positioned along the wall of the baby girls' shop while conducting her observation of defendant; she testified that she did " not at all" lose sight of defendant. According to Ms. Lewis...

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