State v. Figuereo
| Decision Date | 09 December 2011 |
| Docket Number | No. 2009–149–C.A.,2009–149–C.A. |
| Citation | 31 A.3d 1283 |
| Parties | STATE v. Raquel FIGUEREO. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Aaron L. Weisman, Department of Attorney General, for State.
Janice M. Weisfeld, Office of the Public Defender, for Defendant.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
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.
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.
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, 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, defendant was concealing the items in the brown purse and “was looking around the area nervously, looking for any customers or staff.”
Ms. Lewis testified that defendant then walked out of the boys' shop, leaving the hangers behind on top of a display stand. She stated that defendant proceeded to walk through the “Kid's Main Street area,” where she met her companions and “spoke to them for a few seconds, less than thirty seconds.” Ms. Lewis testified that the three women then started walking towards “the mall side of the store;” 3 she added that, at that point, the above-referenced brown purse was under the stroller.
It was Ms. Lewis's testimony that she next observed defendant pass the cash registers located on the mall side of the store. Ms. Lewis testified that she then stopped defendant, along with her companions, at the exit leading to the mall. Ms. Lewis stated that, speaking directly to defendant, she introduced herself and asked defendant to come back into the store with her to discuss “the issue.” Ms. Lewis stated that defendant “got a little emotional” at that time; she added that defendant's “friends [tried] to talk [Ms. Lewis] out of bringing [defendant] back” into the Old Navy store. Ms. Lewis testified that one of defendant's friends then stated that the stroller and the child inside of it belonged to her and not to defendant. Ms. Lewis stated that she then said that the friend could come back into the store as long as defendant and the merchandise also came back. Ms. Lewis stated that at that time defendant told her that “she did not have any of [the store's] merchandise on her.”
Ms. Lewis further testified that she then brought defendant, the friend who had claimed ownership of the stroller, and the baby stroller itself to a back room of the store. Ms. Lewis testified that she removed the purse from underneath the stroller and instructed defendant's friend to leave and to take the stroller; she added that she then took defendant into her office. It was Ms. Lewis's further testimony that she had a witness sit with her while she opened up defendant's purse and emptied everything from it. Ms. Lewis testified that twenty-four items of baby clothing were in defendant's purse.
Ms. Lewis stated that she informed defendant that she intended to prosecute her and would be calling the Warwick Police Department. Ms. Lewis testified that she asked defendant for whom she was stealing the clothes; she specifically asked her “if it was for herself,” to which question defendant responded in the negative. Ms. Lewis proceeded to testify that she had defendant sign certain “paperwork,” in which she admitted the theft. Ms. Lewis added that the just-referenced “paperwork” is what she called a “civil demand notice;” 4 she said that that document is presented to every person who is considered to be a shoplifter. Ms. Lewis testified that by the “civil demand notice,” Gap Inc.5 “ask[s] for the value of the merchandise [to be remitted] back to [it] for the attempted shoplifting of the merchandise.” Ms. Lewis testified that she observed defendant read and sign the civil demand notice.
Ms. Lewis testified that, after having defendant sign the civil demand notice, she photographed her. At the bottom of the photograph, she inscribed the following notation: “24 items, $303.50;” she testified that she did so because it was the practice for loss prevention agents to write the following information on such photographs: “the case number, the value, and the items...
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