text:
    Mildred D. Bunche v. Oscar A. Bunche
    (12670)
    O’Connell, Foti and Cretella, Js.
    Argued September 22
    decision released December 13, 1994

      Stephen E. Nevas, with whom, on the brief, was Leo Nevas, for the appellant (plaintiff).

      Glen A. Canner, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the orders issued by the trial court incident to her motion to have the defendant adjudged in contempt, and from the denial of her requests for statutory interest and attorney’s fees. On appeal, the plaintiff asserts that the trial court improperly (1) refused to find the defendant in contempt, (2) failed to assess statutory interest against the defendant, and (3) disallowed attorney’s fees. We reverse the judgment in part and remand the case for a new hearing.

The record discloses the following facts. The parties were divorced on September 7, 1977. As part of that judgment, the defendant was ordered to pay the plaintiff $1000 per month as unallocated alimony and child support, to be reduced to $666.67 per month as alimony when the minor child reached majority. This order was unlimited as to time. The defendant is a senior executive for IBM.

On January 4, 1993, the court found the defendant to be in arrears on his alimony payments from 1984 through 1992 in the amount of $44,668. The defendant continually failed to pay both the arrearage and his monthly support obligation. The plaintiff then filed a motion against the defendant for contempt and for wage withholding. At the July 12,1993 hearing on that motion, the court found the arrearage had increased to $49,334.69. The defendant and his counsel walked out of the hearing in protest of the court’s assertion of jurisdiction. At the close of the hearing, the court denied the plaintiff’s motion for contempt, denied her request for statutory interest, as well as her request for attorney’s fees. The court did order that a wage execution issue on the current alimony order of $666.66 per month plus $100 per month on the arrearage of $49,334.69.

The plaintiff first argues that because the defendant offered no evidence, and the court made no finding, that he was unable to pay the admittedly accumulated arrearage, a contempt finding was appropriate. She further contends that because the legal standard for contempt had been satisfied and because the circumstances of this matter are outrageous, she was entitled to such a finding.

While we might agree that a finding of contempt is appropriate under these circumstances, our standard of review is quite different. We must determine whether the trial court abused its discretion in failing to find that the actions or inactions of the defendant were in contempt of a court order. See Niles v. Niles, 9 Conn. App. 240, 245, 518 A.2d 932 (1986).

Civil contempt is conduct directed against the rights of the opposing party. Tatro v. Tatro, 24 Conn. App. 180, 185, 587 A.2d 154 (1991). “Contempts of court may be classified as either direct or indirect, ‘ “the test being whether the contempt is offered within or outside the presence of the court.” ’ Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985).” Sgarellino v. Hightower, 13 Conn. App. 591, 595, 538 A.2d 1065 (1988). A finding of indirect civil contempt must be established by “sufficient proof” that is premised on competent evidence presented to the trial court and based on sworn testimony. Id. A trial-like hearing should be held if issues of fact are disputed. Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988).

The plaintiff argues that the defendant has repeatedly disobeyed court orders and has shown no willingness to satisfy his arrearage. The plaintiff claims that the defendant has defied the court and misused its processes in order to deny the plaintiff that to which the court has determined she is entitled. Despite these arguments, the trial court refused to make a finding of contempt. A finding of contempt is a question of fact. State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960). A review of the record shows that the court found no facts to support a conclusion that the nonpayment by the defendant was either wilful or not wilful. The court stated: “I can’t make a finding [of contempt] upon the record that [the failure of the defendant to comply with the court order is] wilful.” After further discussion, the court reiterated: “Well still, I can’t make that finding [of contempt] in view of the present status of the record. So I don’t intend to issue any orders as to interest at the present time.”

While we do not conclude that the trial court abused its discretion in failing to find the defendant in contempt, we do conclude that the trial court failed to exercise that discretion at all. The court denied the plaintiffs motion, but that order was not based on findings of fact. Therefore, no exercise of discretion took place. The evidence as presented to the trial court was sufficient to allow the court to exercise its discretion one way or the other, yet it failed to do so.

An order of the court must be obeyed until it has been modified or successfully challenged. Connecticut National Bank v. Investors Capitol Corp., 29 Conn. App. 48, 56, 613 A.2d 1370, cert. denied, 224 Conn. 902, 615 A.2d 1044 (1992). The record is clear that the defendant neither modified nor successfully challenged the court order regarding alimony payments. Noncompliance with an order of the court alone does not necessarily dictate that a finding of contempt be entered. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). For example, the inability to comply is a good defense to a claim of contempt. Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988). The contemnor must establish that he cannot comply, or was unable to do so. Zivic v. Zivic, 26 Conn. App. 5, 10, 596 A.2d 475 (1991); Tatro v. Tatro, supra, 24 Conn. App. 186. It is within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure. Marcil v. Marcil, supra, 405. The lack of any basis or explanation, however, should reasonably allow the conclusion that the contemmor has the ability to comply with the order of the court.

Here, the defendant has not demonstrated that he was unable to comply with the order of the court. Both the defendant and his counsel excused themselves from participation in the July 12 hearing. The defendant presented no evidence and made no claims. He never denied his noncompliance with the court orders. The defendant submitted a financial affidavit but could not be cross-examined on his current financial status. Before leaving the courtroom, the defendant, through his counsel, indicated that he did not dispute that alimony payments had ceased and that an arrearage of approximately $44,000 existed as of January, 1993. The defendant also did not dispute that the court was able to calculate the arrearage as of the date of the hearing. The defendant was aware that he could dispute the plaintiffs affidavit concerning the arrearage, and cross-examine her current testimony. He chose instead not to participate, and waived his right to do so. Hill v. Hill, 35 Conn. App. 160, 167, 644 A.2d 951 (1994).

Under the circumstances of this case, we conclude that the court failed to exercise its discretion, despite having sufficient evidence before it to do so. This evidence consisted of the plaintiffs testimony, her affidavit from a prior hearing, and the court records. As a reviewing court, we cannot find facts. Fact-finding is a function of the trial court. Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 652, 621 A.2d 1359 (1993).

Because of the necessity of a remand for a new hearing, we find it unnecessary to address the plaintiffs other claims dealing with the court’s denial of her claims for statutory interest and attorney’s fees.

The judgment is reversed only as to the denial of the plaintiff’s motion for contempt and her requests for attorney’s fees and statutory interest, and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed as to the finding of arrearage, the order of payments and the wage execution.

In this opinion the other judges concurred.

       The plaintiff filed a cross appeal after the defendant filed his appeal on July 16, 1993. On October 25, 1993, the defendant’s appeal was withdrawn, leaving the plaintiffs cross appeal, which became the present appeal.

       The defendant filed a “special appearance” so as not to concede jurisdiction. We note that no such procedure is either recognized or required. The defendant subsequently conceded jurisdiction during oral argument before this court.

       The defendant, during oral argument, represented that an agreement existed between the plaintiff and the defendant that excused him from his obligation. The defendant could point to no evidence on the record to support this allegation. He agrees that such an allegation, contained in his objection to the plaintiff’s motion, is not evidence before the trial court.

       The defendant’s financial affidavit claims a gross monthly income of almost $8000 and total assets approaching $125,000. He claims monthly expenses of over $7000.

       The plaintiff daims statutory interest pursuant to General Statutes § 37-3a.

       The plaintiff daims attorney’s fees pursuant to General Statutes § 46b-62. It would appear from the record that the trial court, on June 29, 1993, granted the plaintiff’s motion for attorney’s fees but required “the motion to be redaimed to determine the proper amount.” Thereafter, on July 12,1993, at the completion of the hearing, the plaintiff’s counsel stated: “You will recall that several weeks ago we filed a motion for attorney’s fees filed May 21,1993, concerning the appeal in the amount of $7500. At the time, we had not provided a full itemized bill to the court and the court indicated that it would order the attorney’s fees but in terms of the amount, [it wanted] to see the itemized and detailed statement and we’re prepared to offer that at this time.” The court replied: “You may offer it but I don’t intend to award counsel fees at the present time.” Thereafter, the plaintiff’s counsel requested that the trial court act on another motion for attorney’s fees in the amount of $8819 filed on July 1,1993. The court replied: “Again, counsel, I don’t intend to make any orders for counsel fees.” The court thereupon heard testimony by the plaintiff and denied her requests for counsel fees, without prejudice, and stated, “You could request the court to revisit [both requests for attorney’s fees].”


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Vito A. Rossi, Coadministrator (Estate of Gaetano T. Rossi) et al. v. William H. Stanback et al.
    (11297)
    La very, Landau and Schaller, Js.
    Submitted on briefs October 28
    decision released December 13, 1994

      Kenneth John Laska filed a brief for appellants (plaintiffs).

      Andrew J. O’Keefe and Michael J. Walsh filed a brief for the appellees (defendants).
   Landau, J.

This matter is currently before us on remand from our Supreme Court. Rossi v. Stanback, 230 Conn. 175, 644 A.2d 352 (1994). On appeal from a judgment rendered on a jury verdict in favor of the defendants, William H. Stanback and Savin Brothers, Inc. (Savin), in a cause of action sounding in negligence, the plaintiffs claim that the trial court improperly (1) charged the jury on the applicable standard of care, (2) instructed the jury that it could not consider certain evidence in its deliberations, and (3) recharged the jury regarding proper lookout and due care.

The following facts, set out in Rossi v. Stanback, 31 Conn. App. 703, 626 A.2d 829 (1993), are pertinent to the resolution of this appeal. “On July 20, 1987, the defendant William H. Stanback was employed as a truck driver for the defendant Savin Brothers, Inc., a construction firm under contract with the state of Connecticut to widen Interstate 91 in Hartford. The decedent [Gaetano T. Rossi] was employed'as an inspector by C. E. McGuire. As part of the construction process, Savin transported loads of fill to the construction site. Rossi’s duties were to inspect the loads of fill dumped on the site and to calculate the cubic yardage of fill deposited. John Santos was employed by Savin as a ‘dump man.’ As a dump man, Santos directed the truck drivers on the jobsite, among them Stanback, as they were backing up to dump the loads of fill. The direction was necessary because the truck drivers could not see directly behind their trucks as they were backing up. After the drivers had backed into the position as directed by the dump man, they would raise the truck bodies, drop the fill, and pull forward with the truck ■ bodies raised to allow all the fill to fall from the trucks. The truck drivers would then stop, lower the truck bodies, and latch the tailgates. These maneuvers were directed by hand signals from the dump man to the truck drivers. A blast of a truck horn was a danger signal used by the drivers. Whenever a horn sounded, all truckers were to stop immediately.

“On the day of the accident, Stanback drove onto the dumpsite, made a U-tum, stopped and waited for a signal from Santos. While Stanback got into position, Santos was directing another driver, Willie McDuffie, through his dumping routine. While Stanback was waiting and McDuffie was pulling forward to finish his dump, Rossi walked toward Santos. When Santos finished with McDuffie and turned toward Stanback, he saw that Stanback had begun to back up and was heading directly at Rossi. Santos immediately yelled to both Rossi and Stanback, but neither heard him because of the noise on the site. Santos then ran to McDuffie’s truck and told him to sound his horn, which McDuffie did twice. Stanback did not heed the first warning. Rossi, however, heard the first blast and turned toward Stanback’s truck. As he turned, Stanback’s truck knocked him over and dragged him under the driver’s side rear wheels. Stanback continued to back up. Stan-back heard the second blast and stopped backing up. Santos ran to Stanback’s truck and told him what had happened. Rossi, meanwhile, was caught between the first two sets of tires. Santos told Stanback to pull forward over Rossi so as to render medical attention. Stan-back, however, backed up and over Rossi again. Shortly thereafter, Rossi died.” Id., 704-705.

I

The plaintiffs first claim that the trial court improperly charged the jury as to the applicable standard of care. Specifically, the plaintiffs contend that the trial court refused to instruct the jury in accordance with two of their requests to charge, the combined gist of which was that the degree of care required increases as the risk of harm increases. The result of the court’s failure to so charge, the plaintiffs assert, is that the jury was misled to believe that reasonable care in this case was “simple care” rather than “very great care.” We disagree.

In reviewing the plaintiffs’ claim, we must determine whether the jury instructions “gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 281, 640 A.2d 74 (1994). Moreover, “[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. ...” (Citations omitted; internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994).

Here, while the trial court refused to use the exact words of the plaintiffs’ request, it properly instructed the jury that the degree of care required varies with the specific circumstances of a case. Specifically, the court charged that “in circumstances of great danger, a correspondingly greater amount of care would be required to constitute reasonable care.” The court also instructed that “ [reasonable care is care proportioned to the danger existing in the surrounding circumstances.” The plaintiffs, in their exception, stated that the trial court did not instruct the jury that the right to assume due care correspondingly decreases as the risk of harm becomes more foreseeable. The court, however, made it clear that the degree of care required, a concept that embraces both the duty to foresee risk of harm and the right to assume due care by others, is dependent on the circumstances of the case.

A consideration of the court’s instructions as to this issue, in conjunction with the entirety of the court’s charge, reveals that the trial court properly instructed the jury on the standard of care required of the defendants.

II

The plaintiffs next claim that the trial court improperly charged the jury that, even if it found the actions of Santos to be inappropriate, it could neither use that determination as a basis for finding Savin negligent, nor impute Santos’ actions to Savin. The plaintiffs contend that they established Santos’ negligence, as well as the fact that he was an employee of Savin. Consequently, the jury should have been allowed to impute Santos’ negligence to Savin. The plaintiffs assert that the trial court’s charge prevented the jury from finding liability on the part of Savin based on Santos’ negligence and, therefore, was incorrect as a matter of law. We are unpersuaded.

We are again guided by the settled rule that “[a]s ‘long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury’; Kelley v. Bonney, 221 Conn. 549, 584, 606 A.2d 693 (1992); we will not view the instructions as improper.” Blanchette v. Barrett, supra, 229 Conn. 281.

“ ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [the] complaint.’ ” Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994), quoting Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). Count two of the plaintiffs’ complaint alleges that Savin carelessly, recklessly and negligently caused the death of the decedent through its failure to train, advise, or warn its employees, or to provide for an adequate number of employees on the work site. Count two alleges no breach of duty by Santos as a basis for the plaintiffs’ claim against Savin. Rather, it is exclusively limited to the allegedly negligent actions of Savin.

The plaintiffs specifically assert that paragraph 6 (e) of count two permits the jury to impute the negligence of Santos to Savin. A plain reading of that paragraph reveals that it alleges nothing more than the inadequate instruction of its employees by Savin. A jury finding of negligence on the part of Santos would not support a claim against Savin under paragraph 6 (e). The trial court was correct in instructing the jury that any inappropriate action by Santos could not be used as a basis for finding Savin liable.

Ill

The plaintiffs’ final claim is that the trial court improperly recharged the jury regarding the duty of Stanback, the driver of the truck, to keep a proper lookout. It is unnecessary for us to review this issue, however, because it has not been properly preserved.

Practice Book § 315 “provides that this court is not bound to review claims of error in jury instructions if the party raising the claim did not either submit to the trial court a written request to charge or promptly except to the charge after it was delivered. . . . The purpose of the rule is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992).

Here, the defendants had requested a jury charge concerning proper lookout and the degree of care required of the driver of the truck. After the trial court failed to give the charge, the defendants took an exception, in response to which the court gave a supplemental charge regarding proper lookout. The plaintiffs, who now claim that the trial court acted improperly, did not take an exception to the recharge. Consequently, they have failed to preserve this issue for appellate review. See Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); Terrazzano v. Sporna, 157 Conn. 39, 244 A.2d 599 (1968).

The judgment is affirmed.

In this opinion the other judges concurred.

       In Rossi v. Stanback, 31 Conn. App. 703, 626 A.2d 829 (1993), we reversed the judgment of the trial court and remanded the case for a new trial. The plaintiffs had asserted four claims on appeal, the first of which was that the trial court improperly refused to submit separate plaintiffs’ verdict forms for each count of the complaint. Because we agreed with the plaintiffs’ first claim, we did not address the remaining three. Id., 704. The Supreme Court granted certification; Rossi v. Stanback, 227 Conn. 912, 632 A.2d 695 (1993); reversed our judgment and remanded the case for our consideration of the plaintiffs’ remaining claims. Rossi v. Stanback, supra, 230 Conn. 181.

       The pertinent requests to charge stated:
      “9. ‘As the risk of harm becomes more foreseeable, the duty to foresee that risk increases and the right to assume due care correspondingly decreases.’ In this instance you must determine whether or not it was foreseeable for the Defendant, William Stanback and the Defendant, Savin Brothers, to anticipate individuals or objects behind the dump trucks. In this light, you must consider the standard of care that the Defendants were operating under. That is to say that they testified that a dump truck would not be backed up without the aid of a dump man who at all times stood in the driver’s mirror. If you determine that the risk of an individual being run over by a dump trunk without the aid of a dump man becomes more foreseeable, then the duty to foresee that risk on the part of the truck driver increases and furthermore, the truck driver’s right to assume due care on the part of any individuals in that area correspondingly decreases. Again, where a danger may extend to taking life, reasonable care is very great care.
      “10. There has been testimony that the Defendants knew that there was a blind spot behind these trucks. The Defendants testified that they took certain steps to protect individuals who may have been caught in these blind spots behind the trucks. Namely they placed rear view mirrors on the trucks. Furthermore, they placed audible back up signals on the trucks and in addition to that they also had a requirement that the trucks would not back up without the proper signal from the dump man who at all times was to stand in the driver’s rear view mirror. The Defendants are required to know the common qualities and habits of human beings, insofar as they are a matter of common knowledge in the community. The Defendants may have special knowledge of the qualities and habits of the Plaintiff over and above the minimum that they are required to know or the Defendants may have had special warning that the Plaintiff was negligent or reckless in this particular case. Even without such special knowledge, the Defendants are required to know that there is a certain amount of negligence in the world and that some human beings will fail on occasion to behave as reasonable men would behave. When the possibility of such negligence involves an unreasonable risk of harm, to either a person or an object behind the truck in its blind spot, the Defendants, as reasonable men are required to take that into account and govern their conduct accordingly.”

       This claim goes to the second count of the plaintiffs’ complaint, which was directed against the defendant Savin only.

       The trial court charged the jury as follows: “Now with regard to the complaint, the plaintiffs’ right to recover is limited to the allegations contained in the complaint. This is necessary to maintain a regularity of procedure and to make for just decisions. As a fundamental corollary to this rule, the plaintiffs may not recover for something that is not alleged in the complaint. In other words, the plaintiffs are limited to the allegations of the complaint. Now with regard to the testimony of John Santos and regarding his actions, he has at times been referred to as the dump man. Based on this evidence, you may reach various conclusions relative to the actions of Mr. Santos. However, at no time in the complaint have the plaintiffs alleged any breach of duty by Mr. Santos as a basis for their actions against the defendant, Savin Brothers. Accordingly, I instruct you as a matter of law that even if you find that the actions of Mr. Santos were in some ways inappropriate, you may not use that determination as a basis to find against either defendant in this case. The actions of Mr. Santos may not be imputed to the defendants in this case.”

       Paragraph 6 (e) alleges that Savin is liable “in that, it did not adequately instruct its employees including its truck drivers in the recognition and avoidance of unsafe conditions and the regulations applicable to their work environment to control or eliminate any hazards or other exposure to injury insofar as it related to the backing up of its trucks in violation of OSHA Regulation 29 CFR [§] 1926.21.”

       Practice Book § 315 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”


author: Heiman, J.

text:
    State of Connecticut v. Tony Carswell
    (12688)
    O’Connell, Heiman and Spear, Js.
    Argued September 30
    decision released December 13, 1994

      Roy S. Ward, special public defender, with whom, on the brief, was Philip Russell, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and David I. Cohen, senior assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49. The defendant was also charged with the crime of assault in the first degree in violation of General Statutes § 53a-59. The trial court instructed the jury not to consider the count of assault unless it found the defendant not guilty of criminal attempt to commit murder. On appeal, the defendant asserts that the trial court improperly (1) refused to suppress the victim’s out-of-court identification of the defendant, (2) permitted the victim’s in-court identification of the defendant despite a constitutionally tainted out-of-court identification, and (3) permitted the prosecution to bolster the out-of-court identification of the defendant. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On July 19, 1991, the victim, Arthur Rambert, and four friends left New York on a Metro-North train. They planned to meet friends for a “blind date” at Carlton Court, a housing project in Norwalk. At about 2 a.m., the victim and his friends arrived at Carlton Court, but their dates were not waiting at the appointed place.

The five men then went to the apartment of a person with whom the victim had stayed on prior visits to Carlton Court. She was not home, however, and the men decided to return to New York on the earliest train that morning. They waited at Carlton Court before going to the railroad station.

While the men were waiting, the victim observed a young man riding a bicycle. The victim had met him on a prior visit to Carlton Court and asked permission to take a ride on the bike. He mounted the bike and rode toward the area of building number two, where he observed the defendant talking to some women. The victim rode past the defendant and then turned around intending to return to his friends. As he passed the defendant, the victim heard a gunshot and turned around. He observed that the defendant had discharged a weapon.

The defendant then called to the victim, telling him that he wanted to talk with him. The victim waited and the defendant walked toward him. The area was well lighted by streetlights, and the victim realized that he had met the defendant previously at Carlton Court and knew him as Tyree. As the defendant approached to within inches, the victim asked the defendant what kind of gun he had. The defendant responded that he had a .44 magnum and then shot the victim twice in the hip, causing him to fall off the bicycle. The defendant then stood directly over the victim, and fired three more shots, hitting the victim once in the leg, once in the stomach, and once in the chest. As he fired the third, fourth and fifth shots at the victim, the defendant said, “You all people from New York City got to get out of here.” The defendant then ran inside building two.

The police and an ambulance crew were summoned and arrived at the scene five or six minutes after the shooting. When questioned by the police, the victim stated that the defendant appeared to be between five foot nine inches and six feet in height, “real slim,” and was wearing a black hooded sweatshirt and black sweatpants. He described the defendant’s hair as shaved on the sides and cut flat on top with the sides black and the top dyed blond. The victim also informed the police that the individual who had shot him was named Tyree.

On July 22, 1991, while recuperating at Norwalk Hospital, the victim picked a photograph of the defendant from a police photo array as the person who had shot him. In addition, at trial, the victim identified the defendant as his assailant.

I

The defendant first asserts that the trial court improperly denied his motion to suppress the victim’s out-of-court identification of the defendant. The defendant posits that the array of photographs presented to the victim at Norwalk Hospital was unnecessarily suggestive and in violation of his right to due process. We are unpersuaded.

The following additional facts are necessary for a proper resolution of this issue. Detective Nelson Alicea of the Norwalk police department was assigned to investigate the shooting at Carlton Court. On the basis of his investigation, Alicea learned that the suspected assailant was known by the name of Tyree. Alicea knew the defendant as Tyree and developed a photographic array that included the defendant’s picture. The photographic array was comprised of eight black and white photographs of different individuals, including the defendant, placed in a folder fashioned in such a way as to permit the viewer to see all eight photographs at the same time. Because the Norwalk police department did not have a photograph of the defendant, all of the photographs in the array were obtained from the Bridgeport police in the interests of consistency.

On July 22,1991, Alicea and Sergeant Thomas Mattera went to Norwalk Hospital to question the victim. Alicea informed the victim that they had a possible suspect and wanted the victim to examine a group of photographs to see if the person that had committed the offense was in the group. Neither Alicea nor Mattera insisted that the victim choose one of the pictures, nor did they suggest to the victim which picture to choose. Within seconds, the victim identified the photograph of the defendant as that of the person who had shot him. Alicea asked the victim to sign the photograph that he had identified as that of his assailant. The victim complied with the request.

The defendant moved to suppress the victim’s out-of-court identification as unnecessarily suggestive. After a full evidentiary hearing, the trial court denied the defendant’s motion to suppress the out-of-court identification. We agree with the determination of the trial court.

“The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence . . . when the identification procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification.” (Internal quotation marks omitted.) State v. Biggs, 13 Conn. App. 12, 17, 534 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 73 (1988), citing Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979); see also State v. Fields, 31 Conn. App. 312, 320, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).

“It is well settled that [i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 206, 544 A.2d 1199 (1988); see also State v. Gant, 231 Conn. 43, 70, 646 A.2d 835 (1994); State v. Arena, 33 Conn. App. 468, 474, 636 A.2d 398, cert. granted on other grounds, 229 Conn. 918, 644 A.2d 914 (1994).

It is the burden of a defendant who moves to suppress identification evidence to establish that the identification resulted from the use of an unconstitutional procedure by the authorities. State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991); State v. King, 35 Conn. App. 781, 786, 647 A.2d 25 (1994). Our review of the record leads us to conclude that the defendant failed to meet his burden and that the trial court acted properly in denying the motion to suppress.

“The presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure in the absence of any unfairness or other impropriety in the conduct of the exhibit. . . ."(Citation omitted; internal quotation marks omitted.) State v. White, 229 Conn. 125, 162, 640 A.2d 572 (1994). The trial court, therefore, had sufficient evidence before it to support its finding that the procedures employed by the police were not impermissibly suggestive.

“There was no evidence from any [witness] that the array was a stacked deck with the defendant being one giant among a group of Lilliputians. . . . There [was] no evidence that the police in any way suggested to the [witness] which person [he] should identify. ..." (Citations omitted; internal quotation marks omitted.) State v. Biggs, supra, 13 Conn. App. 19. The eight photographs had a common origin that made them consistent in appearance and they were placed in a folder in such manner as to make them all visible at once. Nothing in the evidence before the trial court supports a finding that the out-of-court identification by the victim was in any way tainted by any form of impermissible suggestion or direction.

The defendant, therefore, failed to meet his initial burden of establishing that the out-of-court identification resulted from some impermissibly suggestive identification procedure on the part of the police. Because we have concluded that the out-of-court identification was not tainted by any impermissibly suggestive conduct on the part of the authorities, we need not address the issue of reliability under the totality of the circumstances. State v. Gant, supra, 231 Conn. 43.

The trial court’s denial of the defendant’s motion to suppress was proper.

II

The defendant next claims that the trial court improperly permitted the victim’s in-court identification of the defendant. The defendant posits that the in-court identification was unreliable and tainted by the claimed constitutionally impermissible out-of-court identification. Because we have concluded, however, that the out-of-court identification procedure was not constitutionally impermissible, we need not address this claim. State v. Correia, 33 Conn. App. 457, 465, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208 (1994).

Ill

The defendant next asserts that the trial court improperly permitted the state to bolster the victim’s out-of-court identification of the defendant by permitting Alicea to testify that the victim selected the defendant’s photograph from the array presented to him at the hospital.

The defendant concedes, as he must, that this claim was not preserved at trial because no objection was interposed to the question that permitted the officer to testify as to the selection of the defendant’s photograph by the victim. The defendant posits, however, that he is entitled to a review of this claim pursuant to the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In support of his claim for Golding review, the defendant asserts that Alicea’s testimony deprived him of his fundamental constitutional right to a fair trial. We are unpersuaded.

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will faü. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances.” (Emphasis in original.) Id.

We note that the defendant has failed to provide us with an analysis to support his bare assertion that the action of the trial court deprived him of his right to a fair trial. In addition, the defendant has failed to satisfy his burden of establishing that his claim is, in fact, a violation of a fundamental constitutional right and therefore cannot satisfy the second Golding prong. Id., 240.

Our Supreme Court has held that there exists an exception to the hearsay rule for out-of-court identifications that are reliable and can be tested by cross-examination of the relevant witnesses. State v. Weidenhof, 205 Conn. 262, 274, 533 A.2d 545 (1987); State v. McClendon, 199 Conn. 5, 11, 505 A.2d 685 (1986). When the testimony at issue falls within a firmly rooted hearsay exception, and is both reliable and tested by cross-examination, such claim raises an evidentiary and not a constitutional issue and is not entitled to Golding review. State v. Bruens, 18 Conn. App. 459, 461, 557 A.2d 1290, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989).

While the defendant has claimed that the underlying out-of-court identification of the defendant by the victim was unduly suggestive, we have rejected that claim and concluded that it was not in any way improper. Additionally, the defendant was afforded an ample opportunity to cross-examine both the victim and the police officer. Thus, the defendant is not entitled to a review of this claim because he cannot satisfy Golding’s second prong because he has failed to demonstrate that his claim alleges the violation of a fundamental constitutional right. “Robing garden variety claims of [an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” State v. Gross, 35 Conn. App. 631, 637, 646 A.2d 933, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994), quoting State v. Reddick, 33 Conn. App. 311, 331-32, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides in pertinent part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-49 provides in pertinent part: “criminal attempt .... (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       The defendant also claimed that the trial court improperly failed to charge the jury that it could draw an adverse inference from the failure of the state to call Sergeant Thomas Mattera of the Norwalk police department as a witness pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). This claim was expressly withdrawn by the defendant at the time of oral argument and, consequently, will not be considered.

       See part I of this opinion.


author: Schaller, J.

text:
    State of Connecticut v. Maceo Troy Streater
    (13079)
    O’Connell, Heiman and Schaller, Js.

      Argued September 19
    decision released December 13, 1994

      John R. Williams, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly (1) denied the defendant his constitutional right to confront his accusers, (2) charged the jury that it could draw an adverse inference from the defendant’s failure to call a particular witness, (3) charged the jury regarding “consciousness of guilt,” and (4) denied the defendant’s motion to suppress out-of-court identification testimony tainted by unnecessarily suggestive procedures. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Terrance Gamble, was riding a bicycle in the area of Munson and Dixwell Avenues in New Haven at approximately 9 p.m. on May 8, 1990. The victim was with Donnie Andrews and Teverace Bellamy when they encountered an acquaintance, Joseph Preston. Preston and the victim separated from the others and rode their bicycles up Shelton Avenue.

Four young African-American males, including the defendant, approached the victim on foot. An argument ensued between the victim and the defendant, while Preston stood fifteen to twenty feet away. Preston recognized the defendant and noted that he was wearing a white shirt and black pants. The argument between the victim and the defendant continued and, at a time that Preston was looking the other way, Preston heard gunshots. When Preston turned, he saw the defendant standing in the middle of the street shooting at the victim. The victim died as a result of his injuries.

The New Haven police were notified. Detective Joseph Howard observed the body of the victim lying in the street. Howard overheard some onlookers comment that the people responsible for the shooting had fled down Argyle Street toward Dixwell Avenue. While Howard was canvassing the neighborhood for possible witnesses, Carol Cheek motioned him to the rear of a building, and provided him with information that led him to check outside the defendant’s home for a faded red compact car.

Detectives Anthony DiLullo and John Greene were also dispatched to the shooting scene and arrived at about 9:25 p.m. Howard called DiLullo and Greene over to his car to meet Cheek. Cheek told the officers that earlier in the evening she had heard gunshots and had seen four young African-American men running from the area where she had heard the shots. The men entered a faded red or maroon automobile parked on Dixwell Avenue. Cheek identified the defendant as one of the men she had seen running. He lived across the street from her, and she had known him for about twenty years. Cheek also told the officers she had seen the defendant with the maroon automobile on other occasions, and that it was normally parked outside his house on Dixwell Avenue.

Later that evening, Howard observed a faded Buick Skyhawk in front of the defendant’s house. The next evening, at about 11 p.m., Howard stopped the Sky-hawk after the defendant and another man entered the vehicle and began to drive away. Howard arrested the defendant, not for the shooting, but on unrelated pending warrants.

Preston was contacted by the police several days later regarding the shooting. He reviewed a tray of photographs of African-American males and selected the defendant’s photograph as that of the person who had shot the victim.

On May 10,1990, DiLullo and Greene tape-recorded a statement from Cheek at her apartment. On May 16, Cheek met with the detectives to read and review her statement. She read and corrected her statement, initialed each correction and signed the last page.

At trial, Cheek testified that she did not remember being outside her house on May 8. She also stated that she did not approach Howard that night, that she did not recall whether she gave the police a taped statement on May 10, and that looking at the transcript of the statement did not help because she could not read. She acknowledged that the signature on the statement was hers, although she did not remember signing it. Cheek listened to the tape recording of the statement, but denied that the voice was hers.

On cross-examination, Cheek said that two officers were putting pressure on her to provide information about the shooting. On redirect examination, although Cheek said she had no recollection of the events of May 8, she did recall trying to get herself and her children out of the way of gunshots.

At trial, Andrews testified that minutes before the shooting he had seen the defendant with three African-American men in a maroon car. After the victim left, Andrews began walking home when he heard gunshots. He and Bellamy went back to Shelton Avenue, arriving shortly before the police. At about 3 a.m. on May 9, Andrews gave a taped statement to the police. He selected the defendant’s photograph from a tray of about 150 photographs of African-American men as that of the person he had seen arguing with the victim.

The defendant testified on his own behalf and raised an alibi defense. He testified that he did not recall all of his activities of May 8, but that, at some time after dark, he drove to First Calvary Baptist Church to look for his brother Chuck. He admitted that he was driving a cranberry Skyhawk. He did not recall the time he arrived at the church. While inside the church, the defendant saw Chuck, Randy Hodges, and the Reverend Boisy Kimber. The defendant knew Hodges, but he was not a friend. On cross-examination, the defendant said that Hodges was in jail at the time of trial.

I

The defendant claims that, on three separate occasions, the trial court improperly denied the defendant his constitutional right to confront witnesses against him as guaranteed under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The court first refused to permit him to review Andrews’ juvenile records. In the other two instances, the court prohibited cross-examination of Greene and DiLullo regarding alleged instances of misconduct in other unrelated prosecutions.

The following additional facts are necessary to resolve this claim. Prior to Andrews’ testimony, the defendant sought permission to review Andrews’ juvenile records. The trial court reviewed the records in camera and declined to disclose them to the defendant. The court stated that the records contained no adjudications, but did reflect both dismissed and pending juvenile cases. With regard to the dismissed cases, the court reviewed not only the files but also the underlying, police reports. The court found that there was nothing in the records “that would be probative in the issue of truth or veracity.”

The defendant claims that the denial of access to Andrews’ juvenile records was erroneous because it prevented him from impeaching Andrews on the basis of bias and also from introducing prior acts of misconduct directly relevant to Andrews’ credibility.

A

Andrews was twelve years old at the time of the shooting, and fifteen at the time of trial. His juvenile records were presumptively confidential pursuant to General Statutes § 46b-124. See In re Sheldon G., 216 Conn. 563, 583 A.2d 112 (1990). Section 46b-124 (a) protects the confidentiality of “[a]ll records of cases of juvenile matters as defined in section 46b-121, or any part thereof, including studies and reports by probation officers, social agencies and clinics . . . .”

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution ‘to confront the witnesses against him.’ ” State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985), quoting Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); because cross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested. State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). Cross-examination concerning “motive, interest, bias or prejudice ... is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991). “Our cases have consistently recognized the right of an accused, during cross-examination, to place before the jury the fact that criminal charges are pending against the state’s witnesses.” State v. Ortiz, 198 Conn. 220, 223, 502 A.2d 400 (1985); State v. Lubesky, supra, 482; see also State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. Wilson, supra, 720; State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Annunziato, 174 Conn. 376, 380, 387 A.2d 566 (1978). The denial or undue restriction of the right to confrontation constitutes constitutional error. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Ouellette, 190 Conn. 84, 101, 459 A.2d 1005 (1983).

In Davis v. Alaska, supra, 415 U.S. 308, the Supreme Court of the United States found that, in some circumstances, a defendant’s sixth amendment right to impeach a witness will prevail over the confidentiality of juvenile information. See, e.g., State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985). Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), however, which clarified the Davis decision, is controlling in this matter. Ritchie, like this case, involved a defendant’s attempt to gain access to a child’s records, the confidentiality of which were protected by state law. The trial court in Ritchie reviewed the records in camera and denied the defendant’s request. On appeal, the Supreme Court of the United States held that disclosure of the child’s records was not required by the confrontation clause. “The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. . . . Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Pennsylvania v. Ritchie, supra, 52-53.

In this case, the trial court reviewed the juvenile records in camera and provided the defendant with the information he needed to explore the issue of bias. The defendant was informed that there were pending juvenile cases against the witness and that there were no juvenile adjudications in the records. Further, the court allowed defense counsel to interview Andrews privately prior to his testimony. Despite these measures, the defendant never attempted to cross-examine Andrews regarding the pending matters or to impeach him concerning his bias or interest.

The trial court provided the defendant with the information regarding pending cases and did not restrict the defendant’s cross-examination of Andrews. The defendant’s confrontation clause rights were not infringed. In balancing the juvenile’s right to confidentiality against the defendant’s right to cross-examination, it is not necessary for a court to turn over the juvenile records to the defendant for examination. Id. The trial court employed the procedure endorsed by the Supreme Court in Ritchie when it reviewed the records in camera, disclosed the results of the inspection and afforded appropriate cross-examination.

The defendant next argues that his access to the juvenile records was required to provide information regarding misconduct that might be useful to attack the witness’ credibility. Pennsylvania v. Ritchie, supra, 480 U.S. 39, disposes of this issue as well. The Supreme Court of the United States concluded that a defendant’s “interest (as well as that of the [state]) in ensuring a fair trial can be protected fully by requiring that the [confidential] files be submitted only to the trial court for in camera review.” Id., 60. The confrontation clause is not violated by withholding the records.

In State v. Harris, 227 Conn. 751, 631 A.2d 309 (1993), our Supreme Court applied the Ritchie analysis to a claim that an in camera review by a trial court was insufficient to protect the defendant’s right to confrontation. “Access to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Citations omitted; internal quotation marks omitted.) Id., 762; State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983); State v. Piskorski, 177 Conn. 677, 737, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The defendant’s rights were sufficiently protected by the trial court’s initial screening of the confidential records.

After an in camera inspection, the trial court must determine whether the information in the records is “probative of [the witness’] capacity to relate the truth or to observe, recollect and narrate relevant occurrences.” State v. Harris, supra, 227 Conn. 767. If the court finds that the files do not contain any material that would be helpful to the defendant in those respects, the defendant’s request for access to the confidential information should be denied. Id.

The trial court in this case properly followed this procedure. The court examined the records, disclosed the materials of probative value to the defendant, and maintained the confidentiality of information that was not significantly helpful to the defendant. The procedures employed by the trial court fully safeguarded the defendant’s confrontation rights. We conclude that there was no abuse of discretion by the trial court in withholding Andrews’ juvenile records from the defendant.

B

The defendant next claims that the trial court improperly restricted the defendant’s cross-examination of Greene and DiLullo in violation of his right to confrontation. We do not agree.

The following additional facts are necessary to resolve this issue. Greene testified regarding his May 8 interview of Cheek, and the taking of her statement two days later. On cross-examination, the defendant sought to voir dire Greene regarding the possible existence of police department or prosecution memos concerning Greene’s intimidation or threatening of witnesses in other cases. The defendant indicated that he wanted to offer prior bad acts evidence to show that Greene had a propensity for such conduct, and could have used intimidation in his questioning of Cheek.

The court did not allow that line of questioning by the defendant. The court determined it to be irrelevant and stated that, even if such memos did exist, such an inquiry would not be permitted. The defendant, however, cross-examined Greene at length regarding his interviews with Cheek.

DiLullo was recalled by the state and questioned regarding the circumstances surrounding the taking of Cheek’s statement. The defendant argued, outside the presence of the jury, that DiLullo was the defendant in three pending federal civil rights actions that included allegations of coercion and intimidation. The defendant offered the evidence as probative of bias, interest or motive under Davis v. Alaska, supra, 415 U.S. 308. The trial court sustained the state’s objection and excluded the evidence.

Cross-examination concerning “motive, interest, bias or prejudice ... is a matter of right and may not be unduly restricted.” (Internal quotation marks omitted.) State v. Lewis, supra, 220 Conn. 621. “The denial or undue restriction of the right to confrontation constitutes constitutional error.” State v. Lee, 229 Conn. 60, 70, 640 A.2d 553 (1994); see also Davis v. Alaska, supra, 415 U.S. 318. However, “[i]t does not follow . . . that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Lee, supra, 70. “Thus, the confrontation right is ‘not absolute and is subject to reasonable limitation.’ ” State v. Lee, supra, 70-71, quoting State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992); State v. Moye, 214 Conn. 89, 94, 570 A.2d 209 (1990).

In this case, the defendant was afforded sufficient latitude in cross-examination of the detectives to comply with the confrontation clause requirements. The defendant questioned Greene about any allegations of past misconduct, attempting to impugn his reliability in the eyes of the jury and to elevate the credibility of Cheek’s version of the events following the shooting. This line of questioning, in conjunction with the testimony of Cheek, gave the defendant ample opportunity to present the issue of credibility to the jury. The questioning regarding the memos was properly determined to be irrelevant as it did not illuminate past disciplinary proceedings or complaints against Greene, but raised only the possible existence of internal memos questioning his conduct in earlier, unrelated cases.

The limitation on the cross-examination of DiLullo also was not improper. The defendant sought to introduce evidence of pending civil rights actions, not on the issue of general credibility, but under the reasoning of Davis v. Alaska, supra, 415 U.S. 308, to show bias on the part of DiLullo. “[A]s a general rule cross-examination of the prosecuting witness should be allowed to show the pendency, existence and status of civil action against the accused arising out of the same sét of circumstances as those which served as the basis for the criminal prosecution.” (Internal quotation marks omitted.) State v. Milum, 197 Conn. 602, 610, 500 A.2d 555 (1985). In this case, the pending civil actions against DiLullo did not involve the defendant, nor did they demonstrate any bias the witness might have toward the defendant.

In State v. Moore, 23 Conn. App. 479, 486-87, 581 A.2d 1071 (1990), cert. denied, 217 Conn. 802, 583 A.2d 132 (1991), we upheld the trial court’s determination that it need not inspect a police officer’s personnel records based on an allegation that the officer was once named a party in a civil suit brought by other parties, arising from a separate matter. By analogy, we conclude that, in this case, “there was an insufficient nexus between the information requested and the case at hand”; id., 487; and, therefore, the trial court did not abuse its discretion in denying the defendant’s request.

II

The defendant next claims that the trial court improperly instructed the jury that it could draw an adverse inference from the defendant’s failure to call Randy Hodges as a witness. We do not agree.

The defendant’s primary defense at trial was alibi. He testified that he stopped at First Calvary Baptist Church sometime after dark on May 8, and saw his brother Chuck, the Reverend Boisy Kimber, and Randy Hodges. Both his brother and Kimber testified at trial that they had seen the defendant at the church on May 8.

Hodges was on the defendant’s original list of possible alibi witnesses. At the time of trial, Hodges was in state custody in connection with an unrelated crime. The defendant did not call Hodges as an alibi witness at trial. The court, over the defendant’s objection, instructed the jury that it could draw an adverse inference from the defendant’s failure to call Hodges as a defense witness.

The defendant failed to preserve this issue at trial for appellate review. Practice Book § 852 provides in pertinent part that “[t]he [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.” See State v. Ulen, 31 Conn. App. 20, 36, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Our Supreme Court has found that “[t]he failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal.” State v. Utz, 201 Conn. 190, 208, 513 A.2d 1191 (1986). Practice Book § 4185 provides in relevant part that we are not “bound to consider a claim unless it was distinctly raised at the trial. . . .” We have noted that “[t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” State v. Utz, supra, 207.

The defendant took an exception to the giving of the adverse inference instruction, but gave no reason or basis for his exception. We find that this claim was not distinctly raised at the trial and, therefore, does not merit review by this court. State v. Ulen, supra, 31 Conn. App. 36. We will not review this unarticulated, unpreserved claim. See Voll v. Lafayette Bank & Trust Co., 223 Conn. 419, 435, 613 A.2d 266 (1992).

Ill

The defendant next claims that the trial court improperly instructed the jury on consciousness of guilt. He asserts that evidence of the defendant’s flight from the scene is not a sufficient basis for a consciousness of guilt jury instruction. We do not agree.

The jury was instructed that the evidence of the defendant’s flight from the scene of the shooting could be considered as tending to show consciousness of guilt. The court also instructed the jury that the defendant claimed not to have been at the scene and, if the state failed to prove that the defendant was present and committed the crime, he must be found not guilty. The jury was also instructed that although it was permitted to draw an inference of consciousness of guilt from the defendant’s flight it was not required to do so.

This claim was not preserved properly for appellate review. In order for this court to review a claim involving the giving of, or the failure to give, an instruction, a party must either make a written request to charge or take an exception immediately after the charge is given. Practice Book § 852. If the party chooses to take an exception, the party must “state distinctly the matter objected to and the ground of objection.” Id.; see also State v. Ulen, supra, 31 Conn. App. 36. Once an exception is taken and the ground stated, a party is limited on appeal to raising that claim on the same basis as stated at trial. See Practice Book § 4185.

The defendant took an exception to the trial court’s instruction as to consciousness of guilt. The defendant, however, gave no basis for his exception. By failing to give his reasons for excepting to the trial court’s instruction, the defendant failed to preserve this issue for appeal.

IV

The defendant claims, finally, that the trial court improperly admitted into evidence the out-of-court identification of the defendant by Cheek. We do not agree.

The following additional facts are necessary to dispose of this claim. Cheek told police on May 8 and 10 that she saw the defendant running from the scene of the shooting. She had known the defendant for about twenty years and was his neighbor. On May 10,1990, she identified a photograph of the defendant as the person whom she knew as Troy Streater.

At the defendant’s first trial, he had moved to suppress the pretrial identification and any in-court identification on the ground that the identification procedures were impermissibly suggestive. The motion was denied by the court after an evidentiary hearing.

At that evidentiary hearing, Cheek testified that on May 10, police detectives had come to see her at her home. She told them that she had heard gunshots on May 8, and that she had seen a lot of people running. She also told them that, after the gunshots, she had seen the defendant running with the other people. The officers showed her three or four black and white photographs, all the same size, and she identified a picture of the defendant as that of Troy Streater. Cheek signed the photograph. Cheek also testified that she had spoken to one officer on the night of the shooting, and had told him that she had not seen anything. The trial court concluded that the identification was not unnecessarily suggestive and denied the motion to suppress.

“The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence — including, as here, an in-court identification and testimony concerning a pretrial photographic identification — when the identification procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). . . .” (Citation omitted; internal quotation marks omitted.) State v. Biggs, 13 Conn. App. 12, 17, 534 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 73 (1988).

“To determine whether a pretrial identification procedure . . . violated a defendant’s due process rights, ‘the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily-suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the “totality of the circumstances.” ’ ” State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

To determine whether an identification that resulted from an unduly suggestive procedure is nevertheless reliable, we must weigh the corrupting effect of the suggestive procedure in light of certain factors such as “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [that person’s] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Internal quotation marks omitted.) State v. Theriault, supra, 182 Conn. 373-74; State v. Lago, 28 Conn. App. 9, 18, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992).

The defendant, as the one seeking to suppress identification evidence, bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991); State v. Johnson, 28 Conn. App. 645, 649, 612 A.2d 799, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). We conclude that the defendant has failed to establish that the photographic array was impermissibly suggestive. See State v. Hamele, 188 Conn. 372, 377-78, 449 A.2d 1020 (1982). In light of this conclusion, we need not address the reliability of the out-of-court identification. State v. Outlaw, 216 Conn. 492, 503, 582 A.2d 751 (1990); State v. Holliman, 214 Conn. 38, 49, 570 A.2d 680 (1990). Accordingly, the trial court did not abuse its discretion in admitting evidence of the pretrial photographic identification.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon Ms person, except when such person is within Ms dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on Ms person while carrying such pistol or revolver.”

       The defendant’s first trial on the same two counts ended in a mistrial. At the first trial, Cheek’s statement was admitted as a full exhibit and was read to the jury. In the statement, Cheek said that on May 8, at about 10 p.m., she had heard gunshots and had seen the defendant and three people she did not know run to a car parked in front of the laundromat. The defendant was wearing black pants and a white shirt. The car was an older, burgundy model. She recognized the defendant because she had known him for twenty years.
      Cheek testified that the police were “chasing after her” following the incident, and that Detective Green had come to her house several times. She also said that he had stopped the tape several times during her statement to tell her what to say, and that the statement was not true.

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       Although the defendant has framed his claim under both the state and federal constitutions, he has not provided an independent analysis of our state constitutional provisions. In the absence of any such analysis by the defendant in this case, we confine our analysis to a discussion of his rights under the federal constitution. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992); Phillips v. Warden, 220 Conn. 112, 131 n.15, 595 A.2d 1356 (1991). Our “declination, however, does not mean that we are not able to review [a state constitutional claim] if we choose to do so. ” State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992).

       General Statutes § 46b-121 defines “[j]uvenile matters” to include not only delinquency proceedings, but also “all proceedings concerning uncared-for, neglected or dependent children,” proceedings concerning the termination of parental rights, and matters concerning families with service needs.

       See Secondino v. New Haven, 147 Conn. 672, 675, 165 A.2d 598 (1960).

       We also note that this claim does not merit review under the Golding criteria. See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We have held that issues involving the propriety of a Secondino instruction do not rise to the level of a constitutional challenge. See State v. Hudson, 14 Conn. App. 463, 470, 541 A.2d 534, cert. denied, 209 Conn. 803, 548 A.2d 439 (1988).

       This claim also fails to merit review under Golding. See State v. Golding, supra, 213 Conn. 239-40. The defendant does not claim that the consciousness of guilt instruction denied him any state or federal constitutional right. The claim is one involving instructional error; State v. Smith, 219 Conn. 160, 165-66, 592 A.2d 382 (1991); State v. Carter, 34 Conn. App. 58, 90, 640 A.2d 610, cert. granted, 229 Conn. 919, 644 A.2d 915 (1994); and does not warrant review under Golding.