text:
    Adolph Luciani et al. v. The Stop & Shop Companies, Inc.
    (4612)
    Borden, Bielüch and O’Connell, Js.
    Argued November 10, 1987—
    decision released August 9, 1988

      Jeffrey J. Mirman, with whom, on the brief, was Peter Schwartz, for the appellant (defendant).

      William F. Gallagher, with whom, on the brief, were Frank M. Gazioso and Robert P. Borquez, for the appellees (plaintiffs).
   O’Connell, J.

The defendant corporation appeals from the judgment rendered on a plaintiffs’ verdict in an action for property damage and conversion of fixtures arising out of a commercial lease dispute. The defendant alleges that the trial court erred (1) in not charging the jury that the plaintiffs were required, as a matter of law, to demand return of the property in order for an action in conversion to obtain, (2) in charging the jury on the issue of punitive damages, and (3) in improperly presenting the plaintiffs’ claims to the jury in its instruction. We find error in part.

The jury could reasonably have found the following facts. The plaintiffs were the successors in interest to a corporation which entered into a commercial lease with the defendant in 1961. Pursuant to the lease, the plaintiffs constructed the premises in question in accordance with the defendant’s specifications. Article XII of the lease, regarding removal of fixtures, provided in pertinent part that all equipment installed “by and at the expense of [the defendant] and susceptible of being removed from the demised premises without substantial injury thereto, shall remain the property of [the defendant], and [the defendant] may, but shall not be obligated to, remove the same or any part thereof at any time or times during the term hereof.”

The defendant operated a supermarket on the premises in question for more than eighteen years. In 1979, the defendant ceased its operation at that location. The defendant removed its inventory, equipment and fixtures from the store pursuant to article XII of the original lease, which remained in effect during a move to a new location. The defendant followed its established “Store Closing Procedure Guide” in vacating the premises, and engaged several subcontractors to remove the fixtures which are the subject of this appeal. The defendant had determined the fixtures were its own; however, the plaintiffs claimed the fixtures as their property.

At trial, the plaintiffs alleged that they had been denied access to the premises during the store closure and that, upon being allowed entry, they discovered that the defendant had removed not only its own property, but also property claimed to be owned by the plaintiffs. The plaintiffs further alleged damages resulting from removal of the defendant’s sign from the exterior front “parapet wall” of the building, and from abuse of the premises beyond the “fair wear and tear” allowed under the terms of the lease agreement.

At the close of the plaintiffs’ case, the plaintiffs moved to amend their complaint to expand their claim for punitive damages. Despite the defendant’s objection, the amendment was allowed. The jury returned a plaintiffs’ verdict on the breach of contract and conversion counts, and awarded the plaintiffs compensatory damages of $43,946.03 and punitive damages of $31,830.15, the amount of the plaintiffs’ attorney’s fees.

I

The defendant’s first claim that the trial court erred in instructing the jury that, under the facts of the present case, the plaintiffs were not required to make a demand upon the defendant in order to establish their cause of action in conversion. We disagree.

The tort of conversion boasts a well established definition which is not disputed by the parties. “Conversion occurs when one, without authorization, assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner’s rights. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983).” Epstein v. Automatic Enterprises, 6 Conn. App. 484, 488, 506 A.2d 158 (1986). The seminal case in this state regarding conversion is Coleman v. Francis, 102 Conn. 612, 129 A. 718 (1925), cited by both parties in their briefs. Coleman established that there are two “general classes” of conversion: (1) that in which possession of the allegedly converted goods is wrongful from the onset; and (2) that in which the conversion arises subsequent to an initial rightful possession. Id., 615.

In the latter class, the one at issue in the present case, there are three forms which conversion may take. Classification of a particular conversion into one of these three forms determines whether a demand is required for the establishment of a cause of action. “The second class is where the possession, originally rightful, becomes wrongful by [1] reason thereafter of a wrongful detention, or [2] a wrongful use of the property, or [3] the exercise of an unauthorized dominion over the property. In the last two groups of this class, the wrongful use and the unauthorized dominion, constitute the conversion; therefore no demand for the return of the personal property is required. ” (Emphasis added.) Id., 616. Demand is only required in the “detention” scenario because, by definition, a rightful possession cannot become a “detention” until a possessor fails to comply with a request to quit possession made by the rightful owner. “[Sjince the possession is rightful . . . there can be no conversion until the possessor refused to deliver up the property upon demand.” Id. The wrongful use or dominion which characterize the remaining forms of conversion after rightful possession, however, change the character of the possession itself. Therefore, these actions, when taken by a possessor, constitute sufficient demarcation of a substantial change in the status of the relationship of the parties to each other, and to the property in question. Accordingly, the requirement of demand is unnecessary. See Epstein v. Automatic Enterprises, supra, 488-89, where “the defendants’ assertion that the plaintiff was required to demand the return of the machines to recover in conversion [was] without merit. . . . Under the facts of this case, the jury could readily find that a conversion occurred by a wrongful taking or an illegal assumption of ownership wholly unauthorized by the plaintiff.”

The conversion which occurred in the present case originated in rightful possession and was consummated by the destruction of the plaintiffs’ property. We conclude that it was of the form of conversion characterized by the court in Coleman v. Francis as “wrongful use.” By destroying the plaintiffs’ property, the defendant “ ‘ “exercise[d] the right of ownership over goods belonging to another, to the exclusion of the owner’s rights.” ’ ” Falker v. Samperi, supra, 419; Epstein v. Automatic Enterprises, supra, 488. As more explicitly stated in 1 Restatement (Second), Torts § 226: “One who intentionally destroys a chattel or so materially alters its physical condition as to change its identity or character is subject to liability for conversion to another who is in possession of the chattel or entitled to its immediate possession.” A review of the record indicates that the defendant’s employees and agents intentionally destroyed the property in question. Such an intent, despite the absence of an intent to harm the plaintiffs’ interests, is sufficient to establish an action in conversion. “The intention required is an intention merely to exercise a dominion or control over the chattel which in fact seriously interferes with the right of another to control it. It is not an intention to interfere with the rights of the other; and the defendant may be liable for conversion where he has in fact exercised dominion or control, although he may be quite unaware of the existence of the rights with which he interferes. Thus, he may be a converter when he dispossesses another of a chattel in the entirely reasonable belief that it is his own, or where he innocently buys stolen goods.” 1 Restatement (Second), Torts § 224, Nonfeasance & Negligence, comment c. Intention.

We further note that even if the defendant’s employees and agents mistakenly believed that they were destroying only the defendant’s property, such belief is of no consequence. “An actor is not relieved of liability to another for trespass to a chattel or for conversion by his belief, because of a mistake of law or fact not induced by the other, that he (a) has possession of the chattel or is entitled to its immediate possession, or (b) has the consent of the other or of one with power to consent for him, or (c) is otherwise privileged to act.” Id., § 244, Effect of Mistake. The record indicates that the jury could reasonably have found that destruction of the plaintiffs’ property was already substantially effected by the time the plaintiffs were allowed access to the premises. The record further indicates that one of the plaintiffs remarked to one of the defendant’s subcontractors at the site that the subcontractor was dismantling the property of both the defendant and the plaintiffs. We conclude, however, that at that point the plaintiffs’ property was “so materially alter[ed in] its physical condition as to change its identity or character,” and, therefore, the conversion had already occurred. Id., § 226. At this point in the chronology of events, and, more importantly, with this form of conversion, demand was not a requisite element of the cause of action. “It is clear from the authorities that demand and refusal are necessary only where no conversion has yet taken place and evidence of conversion is required.” Pascack Valley Bank & Trust Co. v. Ritar Ford, Inc., 6 Conn. Cir. 489, 501, 276 A.2d 800 (1970). “ ‘Demand and refusal are never necessary, except to furnish evidence of the conversion, and when, without these, the circumstances are sufficient to prove the conversion, they are superfluous.’ ” Coleman v. Francis, supra, 616; 18 Am. Jur. 2d, Conversion § 84. Under the facts of the present case, we conclude that the plaintiffs were not required to issue a demand before an action in conversion would lie, and conclude that the trial court’s failure to instruct the jury that a demand was required, was not erroneous.

II

The defendant next claims that the trial court erred in instructing the jury with regard to punitive damages. We agree.

“As a general matter, ‘[pjunitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.’ Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967); see also Kenny v. Civil Service Commission, 197 Conn. 270, 277, 496 A.2d 956 (1985); Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). ‘In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966).’ Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983).” Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 654-55, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986).

The record in the present case is devoid of any evidence that the actions of the defendant, in failing to allow the plaintiffs immediate access to the premises, in removing the plaintiffs’ fixtures, in removing its own property, and in allegedly failing to leave the premises in good repair, constituted reckless indifference or an intentional and wanton violation of the plaintiffs’ rights.

The amendment of the plaintiffs’ complaint during trial, to allege that the actions of the defendant constituted reckless indifference or intentional and wanton violations of the plaintiffs’ rights, simply did not suffice to justify the instruction on punitive damages. “To furnish a basis for recovery [for punitive] damages, the pleadings must allege, and the evidence must show wanton or wilful malicious misconduct. . . .’’(Emphasis added.) Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985); see Vandersluis v. Weil, supra, 358. The plaintiffs complied with only one portion of the requisite burden of proving that punitive damages were warranted. Simply stating that the actions constituted conduct of the degree required for an award of punitive damages, without demonstrating how those actions did so, does not justify the instruction.

Ill

The defendant’s final claim of error is that the trial court’s instruction to the jury was erroneous, as it presented the plaintiffs’ claims to the jury as proven, but failed to present the defendant’s claims in the same manner. Upon reviewing the charge, we conclude that the instruction was not “ ‘so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.’ ” Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 591, 356 A.2d 873 (1975). We further conclude that the trial court, at several points during the charge to the jury, gave cautionary instructions, reminding the jury that it was its perception of the facts, and not the court’s, which was to serve as the basis for its deliberations. We acknowledge that while such corrective instructions will not cure an unfair charge, such cautionary instructions do “tend to remove any doubts that the court properly discharged its duty of leaving the jury free to determine the facts and draw their own conclusions therefrom.” Id., 594. We find no error in the trial court’s instruction.

There is error in part, the award of punitive damages is set aside and the case is remanded with direction to render judgment consistent with this opinion.

In this opinion the other judges concurred.

       See footnote 4, infra.

       Although the defendant’s complaint alleged both, only the verdict regarding the allegation of conversion is on appeal.

       The defendant also alleges as a subissue that .the trial court abused its discretion in allowing the amendment of the complaint during trial, to add an allegation that the defendant acted recklessly in denying the plaintiffs access to the premises in question, in removing the plaintiffs’ property and in damaging the premises. Our review of the record indicates that the defendant has failed to demonstrate a clear showing of abuse of discretion in the trial court’s actions. Sansone v. Lettieri, 4 Conn. App. 466, 467, 495 A.2d 720 (1985); Wadsworth v. Zahariades, 1 Conn. App. 373, 375, 472 A.2d 29 (1984). We decline to address the claim further, in light of our conclusion that the trial court erred in allowing the instruction on punitive damages.

       In addition, the defendant alleged in a footnote that the trial court abused its discretion in allowing the plaintiffs to reopen their case-in-chief to present evidence of their status as successors-in-interest to Luciani Realty, Inc., the original lessor of the premises at issue. We agree with the rationale propounded by the venerable Chief Justice Maltbie in Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940), which provides in pertinent part that “[Ijf a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” The record indicates that the trial court viewed the motion to reopen in this light, and acknowledged that it was “[the trial court’s] function to see that justice is done,” and characterized the plaintiffs’ failure to present evidence as “a mere technicality.” Accordingly, we conclude that the trial court did not abuse its discretion. Cf. Poly-Pak Corporation of America v. Barrett, 1 Conn. App. 99, 104, 468 A.2d 1260 (1983) (the discretionary denial of a motion to open was not error when the trial court determined that plaintiff’s failure to present evidence did not constitute inadvertence or mistake).


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. William McNellis
    (4558)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued April 12—
    decision released August 9, 1988

      James E. Swaine, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2), 53a-59 (a) (1), and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) (2) and 53a-134 (a) (2), and larceny in the first degree in violation of General Statutes §§ 53a-119 (8) and 53a-122 (a) (3).

The defendant claims that the trial court erred (1) in denying his motions to dismiss and to suppress physical evidence on the ground that his arrest was not based on probable cause, (2) by instructing the jury on the missing witness rule; Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); and by allowing the state to argue missing witness inferences prior to the court’s ruling on such inferences, (3) in denying the defendant a right to be present during the court’s voir dire of the individual jurors concerning jury tampering, and in denying the defendant’s subsequent motion for a mistrial, (4) in denying his motions for a mistrial filed on the ground that he was denied a fair trial by the trial court’s allowing the testimony of a state trooper that a gun in evidence in this case was also test-fired and compared to bullets in another criminal matter, and allowing the testimony of a criminalist, as to the existence of a red stain on an alleged accomplice’s pants which were seized at the time of arrest, when the state had failed to disclose that evidence pursuant to discovery orders, (5) in refusing to allow the defendant to proceed on his motion to suppress identification testimony and in allowing into evidence identification testimony which had been tainted by a prior allegedly suggestive show up, and (6) in illegally imposing sentence upon the defendant and in refusing to hear the merits of his motion to vacate the alleged illegal sentence. We find no reversible error.

The jury could reasonably have found the following facts. Two men wearing ski masks and gloves robbed a branch office of the Jefferson Federal Savings Bank located at the Bella Vista apartment complex in New Haven. At the time of the robbery, three bank tellers and several customers were inside the bank. The tellers were able to testify as to the descriptions of the two robbers. One of the perpetrators was described as a tall, thin man, with mustache hairs protruding through his mask, wearing a green jump suit and blue and white high-topped sneakers. The other perpetrator was described as a shorter man with a heavier build, fair skin, very light eyes, and a harsh voice, wearing old, bell-bottomed blue jeans, a checked tweed coat over a dark sweatshirt, and grey suede shoes.

Both of the perpetrators were armed with handguns. They emptied the contents of the cash drawers and a vault drawer into a green duffel bag and a pillowcase. Among the stolen contents was bait money, which contained exploding red dye packets.

Maintenance personnel had seen two masked men get out of a green Thunderbird, which was parked in the bank driveway with its motor running, and then enter the bank. A building superintendent got into the Thunderbird and started to drive it away from the bank. When the robbers came out of the bank, they chased after the automobile, banged on it, and then fired several shots. At that time, the dye packets in the bait money exploded, discharging a red dye into the air. The perpetrators were then observed fleeing across the street and into a bushy area near a building diagonally across from the bank.

After the superintendent told a security guard to call the police, he and another superintendent saw the defendant, who was breathing heavily, perspiring, and had a leaf stuck to his cheek, emerge from the bushy area at the top of the embankment. It had been raining heavily that day, but at the time of the robbery it was only misting. Behind the defendant was a taller man, later identified as Raymond Flinter. The defendant stated: “Did you see ’em? They robbed the bank.” The superintendent asked in which direction the robbers went, and the defendant responded that the robbers had gone down the hill, away from the area, and that one of the perpetrators was a black man.

Flinter, who was wearing white and blue high-topped sneakers, started walking rapidly toward another building. He was subsequently apprehended by a uniformed police officer responding to the robbery alarm. Upon noticing that Flinter was in police custody, the superintendent suggested that the defendant inform the police that his friend was not involved in the robbery incident. The defendant responded that he did not know the man, but had only just met him as they came up the hill. The defendant then walked hastily away. The superintendent and other persons congregating in the area pointed out to Officer George Hill, who had just arrived on the scene, that one of the perpetrators was around the corner of a building. Hill proceeded around the corner of the building and saw the defendant walking away from the commotion, looking wet or sweaty, muddy, and unkempt. Hill then identified himself as a police officer and took the defendant into custody. At the time of his arrest, the defendant was wearing a dark sweatshirt, denim jeans, and grey suede shoes. These articles of clothing were seized from his person pursuant to a search incident to his arrest.

I

The defendant first claims that the trial court erred in denying his motion to suppress evidence seized at the time of his arrest, on the ground that there was no probable cause to arrest him, as there existed no facts known to the officer to conclude that he was one of the bank robbery perpetrators. Accordingly, the defendant contends that the search incident to that arrest violated his right to be free of unreasonable searches and seizures under the federal and state constitutions. We disagree.

We recognize the principle that subject only to a few well defined exceptions, a search conducted without a warrant issued upon probable cause is an unreasonable search. State v. Badgett, 200 Conn. 412, 423, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). A specifically established exception to this rule provides, however, that where evidence obtained without a warrant is obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence is not illegally obtained and is therefore admissible. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Cobuzzi, 161 Conn. 371, 377-79, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). It is the state’s burden at trial to establish this exception. State v. Badgett, supra 424; State v. Lizotte, 11 Conn. App. 11, 17, 525 A.2d 971, cert. denied, 204 Conn. 806, 528 A.2d 1154 (1987). The issue that we must decide, then, is whether the search of the defendant was incident to a lawful warrantless arrest.

Pursuant to subsection (b) of General Statutes § 54-lf, a police officer is authorized to arrest, without a warrant, “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” The term “reasonable grounds,” within the meaning of § 54-lf (b), has been interpreted to mean “probable cause,” as that term has been defined by judicial opinion. State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983). Probable cause, sufficient to support a warrantless arrest, exists when “ ‘ “ ‘the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony had been committed’ ” ’ ”; State v. Dennis, supra, 431; State v. Gaspano, 194 Conn. 96, 105, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985); State v. Wilson, 178 Conn. 427, 435-36, 423 A.2d 72 (1979); and that the person arrested committed the felony. State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980).

“ ‘The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.’ ” State v. Dennis, supra. In this case, we consider solely the knowledge of Hill, the arresting officer, at the time of the arrest because that is the only evidence pertaining to the issue of probable cause. Hill was aware of certain facts prior to the defendant’s arrest. On the day of the bank robbery, Hill was on duty and was assigned to the street crime division of the New Haven police department. As a member of the street crime division, Hill was mainly involved with crimes concerning robbery or narcotics. At approximately 1:30 p.m., on May 31,1984, Hill and his partner heard a radio alarm that came over the police communication system, signalling them that a bank robbery had occurred at the Jefferson Federal Savings Bank located at the Bella Vista apartment complex. They responded to that location and Hill dropped off his partner at the bank. Hill had intimate knowledge of the Bella Vista housing complex because his mother lived there. Hill noticed that it had just stopped raining, that the air was moist, and the ground muddy. He then heard a second radio transmission that one officer was at the top of the hill, that a bank robbery had occurred, and that two white males had exited the bank and were running up the hill into some bushes. Hill went to the top of the hill where another officer had Flinter in custody. Hill then heard a third radio broadcast describing one of the perpetrators as a tall, thin man. The broadcast also informed Hill that one of the perpetrators was wearing a long tan overcoat and the other a long purplish-color overcoat. Hill noticed that the man in custody, Flinter, was a tall, thin man.

At this time, there were numerous people gathered around the area and some of them said to Hill that “another subject was fleeing that way,” and pointed around the comer to the direction of the back of another building. Hill went to the rear of the building where he saw the defendant. Although the defendant was not wearing the clothes described in the radio broadcast, Hill noticed that the defendant, a white male, was walking away from all of the action. He was shorter and stockier than Flinter, appeared to be sweating profusely, was unkempt, his hair was in a disarray, twigs and leaf debris were on his clothes, and his shoes were muddy. The people in the area continued to point to the defendant as the perpetrator. Hill drew his service revolver, told the defendant to put his hands against the wall, and then placed him under arrest.

We conclude that these facts and circumstances provided reasonable grounds for Hill to believe that the defendant was one of the two persons who had committed the robbery at the bank. The information possessed by Hill reasonably singled out the defendant from all other persons in the area as a perpetrator of the robbery. See United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). Although the clothing description did not match the clothing that the defendant was wearing, Hill was able to deduce from all of the other evidence, based upon his skill and experience as a member of the street crime division, that there was probable cause to believe that the defendant had committed the robbery. The trial court did not err in concluding that there was probable cause to arrest the defendant. The defendant’s motions to dismiss and to suppress were, therefore, properly denied.

II

The defendant next raises three challenges to the “missing witness” instructions given to the jury. The defendant argues that the trial court erred (1) in giving a missing witness instruction as to Robert Apicella, a longtime friend of the defendant, and as to the defendant’s father, on the ground that the requirements for the giving of a Secondino instruction were not met, (2) in sua sponte giving a missing witness instruction as to the defendant’s father without either party-requesting it and without notice, and (3) in allowing the state’s attorney to argue, in his rebuttal, a missing witness inference without prior approval from the court. We find no reversible error with respect to these claims.

“ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928).” State v. Carrione, 188 Conn. 681, 686, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). An unfavorable inference charge is permissible if two conditions are satisfied: “The witness must be available, and he must be a witness whom the party would naturally produce.” Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The requirement that a witness must be one whom “the party would naturally produce,” does not include a witness whose testimony is either relatively unimportant, cumulative, or inferior to testimony already produced at trial. State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975); 2 J. Wigmore, Evidence (3d Ed.) § 287. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra, 675. “To charge the jury on the rule, the party claiming the benefit of the rule must show that he is entitled to it.” Doran v. Wolk, 170 Conn. 226, 229, 365 A.2d 1190 (1976).

We first address the adverse inference charge with respect to Apicella. The defense offered the testimony of several witnesses, including the defendant, as evidence that the defendant had been in the area of the bank for a legitimate business reason. The defendant testified that he and Flinter had gone to the housing complex to meet a plumber. The defendant further testified that they drove there in a rented blue Buick automobile and parked the automobile in a parking area located up the Bella Vista driveway entrance at the top of the hill. On cross-examination, the defendant was unable to describe exactly where he had parked the car.

The defense then offered the testimony of Frank Fabbri, who testified that the defendant, subsequent to his arrest, telephoned him and requested that Fabbri come from Torrington to New Haven to pick up a rental car that he had driven to the Bella Vista. Fabbri testified that because he was unfamiliar with the New Haven area he had a friend, Apicella, accompany him to New Haven. Apicella drove Fabbri to the Bella Vista where they located the rental car. Fabbri was unable to recall exactly where they had found the car and on cross-examination stated that Apicella “could probably tell you better than I could” where the car was located. Fabbri stated that he had not paid attention to any location, but had relied on Apicella to locate the car. Fabbri further testified that Apicella was a longtime, good friend of the defendant who resided in Waterbury.

The state presented rebuttal evidence that the rented Buick automobile was not among the cars parked at the Bella Vista visitors parking area nor along the street, and was not a car the license plate numbers of which had been recorded by the police on the day of the robbery. Upon this evidentiary foundation, the state requested, and the court gave, a missing witness instruction regarding the defendant’s failure to call Robert Apicella.

On appeal, the defendant does not claim that Apicella was not available. He claims, rather, that the second Secondino requirement, namely, that the state must show that Apicella is a person whom the defendant would naturally produce, was not satisfied because (1) Apicella’s testimony would have been cumulative to that offered by Fabbri, and (2) he was equally available to the state as a witness.

We disagree with the defendant’s assertion that Apicella’s testimony would have been merely cumulative. “The testimony of an additional witness upon a significant disputed issue can hardly be characterized as cumulative. State v. Reid, 193 Conn. 646, 662, 480 A.2d 463 (1984).” State v. Ruiz, 202 Conn. 316, 325, 521 A.2d 1025 (1987). Apicella’s testimony was significant because it presumably would have supported the defendant’s claim that he was at the Bella Vista for a legitimate business reason.

The defense centered around the defendant’s legitimate business reason for being at the Bella Vista. The existence of the rental car was a matter raised by the defendant to support his explanation of his presence at the Bella Vista. The state, on the other hand, contended that the defendant had arrived at the scene in the getaway car. Because there was testimony of prosecution witnesses that the two robbers had a getaway car parked in front of the bank with the engine running, the existence of the rental car was crucial to the defense. Therefore, Apicella’s testimony about the existence of and location of the rental car would have, if credible, strengthened the defendant’s case. If the jury believed that the defendant had his own transportation to the Bella Vista, then his entire defense was made more credible. Apicella’s recollection of where the rental car was located was allegedly superior to that of Fabbri. The failure to call Apicella to corroborate Fabbri’s testimony was proper to call to the jury’s attention.

We also reject the defendant’s argument that the opportunity of the state to call Apicella as a witness negates the view of the trial court that Apicella was a witness that the defendant would naturally produce. “Though each party ordinarily is empowered to place an available witness on the stand, such a witness often may be expected to furnish testimony more favorable to one side than the other.” State v. Ruiz, supra, 325, citing State v. Reid, supra, 662-63, and Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191, 510 A.2d 972 (1986).

The trial court did not err in giving a Secondino instruction as to Apicella. Because of our disposition of this issue, any error with regard to the prosecution’s reference to Apicella as a missing witness is rendered harmless and we therefore need not discuss that issue further.

We next address the adverse inference charge with respect to the defendant’s father. The trial court sua sponte gave a missing witness instruction permitting the jury to draw an adverse inference from the defendant’s failure to call his father. The court combined this charge with the missing witness charge on Apicella. A review of the transcript reveals that although the defendant excepted to the charge, he only proffered grounds for this exception with regard to Apicella. The defendant failed to make a proper exception to the charge. See Practice Book § 288. There is no plain error; see Practice Book § 4185; nor is the Evans bypass rule applicable. See State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1975). We decline to review the defendant’s claim further.

HI

The defendant’s third claim is that the trial court erred in prohibiting the defendant from being present in the courtroom during the court’s voir dire of the individual jurors concerning jury tampering and in denying the defendant’s subsequent motion for a mistrial. The defendant claims that his exclusion from the voir dire proceeding violated his right to be present under the confrontation clause of the sixth amendment to the United States constitution and his right to a fair trial under the due process clause of the fourteenth amendment to the federal constitution. He also claims that his exclusion from the voir dire proceeding violated his right to be present under Practice Book § 967. We address the merits of the defendant’s constitutional claims which were raised below but we decline to address the merits of the alleged violation of the rules of practice since that claim was not made in the trial court. Practice Book § 4185; see, e.g., State v. Miller, 186 Conn. 654, 672, 443 A.2d 906 (1982); State v. Devanney, 12 Conn. App. 288, 290-91, 530 A.2d 650 (1987).

After a weekend recess and prior to the resumption of the defendant’s presentation of his case, it was brought to the attention of the court that over the weekend one or more of the jurors had received anonymous telephone calls concerning the case. The court informed the prosecutor and defense counsel in chambers about the situation. The parties and the court agreed to conduct an individual voir dire of each juror to determine exactly what had happened. The court preferred to conduct an in-chambers voir dire; see, e.g., State v. Sims, 12 Conn. App. 239, 241, 530 A.2d 1069 (1987); but defense counsel requested a public proceeding, which the trial court granted.

Counsel also requested that the defendant be allowed to be present at the voir dire proceeding to avoid any possible prejudice that might result on account of his absence from the proceeding. The trial court denied the defendant’s request, explaining: “I don’t think that he should be present and I don’t want any possibility of coercion or intimidation. And I’m not saying that your client made those phone calls or [that] he had anybody make them . . . [but] under the circumstances I feel [that] these jurors should be questioned without his presence.” Thus, during the proceeding, which remained open to the public, the state’s attorney, assistant state’s attorney, and defense counsel were present, but the defendant was excluded.

The court permitted the defendant to remain in an adjacent room where he could listen to the proceedings over a loudspeaker system. The court further ordered the reporter to make a transcript of the entire proceeding for the defendant and his counsel. The trial court examined the jurors individually, and ascertained that three of the six regular jurors and the two alternate jurors had received telephone calls and that all of the jurors had discussed the matter that morning among themselves. The person making the phone calls basically mentioned the named juror called, stated that the state’s ballistic test was used in a homicide, and then hung up. The telephone calls were all anonymous and presumably related to the testimony of Marshall Robinson, a Connecticut state trooper, who had testified one week earlier about the testing of a gun found in the area of the bushes located near the bank. Robinson testified before the jury that he had been requested to compare test bullets from the weapon with bullets in another case. Subsequently, in the absence of the jury, counsel for the defendant conducted a voir dire of Robinson concerning the testing of that gun. Robinson stated on the record that he had test-fired the gun for a homicide that had taken place in Í980. The fact that the other case was a homicide was never mentioned to the jury.

Upon questioning by the court, each juror affirmatively testified that neither the phone calls nor the jury’s discussion about them would in any way influence his or her decision. The jurors themselves characterized the subject matter of the phone calls as “totally unrelated” to this case, “didn’t make any sense,” and “didn’t seem to have any point to it.”

The trial court offered to give a cautionary instruction to the jury to disregard the defendant’s absence. Although the state had no objection, the defendant expressly requested that such an instruction not be given to the jury. The trial court denied the defendant’s motion for a mistrial because it concluded that the voir dire revealed no basis for any doubt that all of the jurors maintained the ability to remain impartial. On appeal, the defendant claims error in his exclusion from the voir dire proceeding, arguing that it was a critical stage of trial and a deprivation of his constitutional rights to be present. He claims that his absence could have suggested to the jury that he had something to do with the attempted tampering caused by the anonymous phone calls.

A

We first examine the defendant’s constitutional claim with reference to the right to be present under the confrontation clause of the sixth amendment to the federal constitution. The sixth amendment provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This right extends to defendants in state as well as federal criminal proceedings. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

During the voir dire proceeding, the court asked all jurors (1) whether they received a phone call, (2) whether they discussed the phone calls with other members of the jury, (3) what was the content of the phone calls, and (4) whether they could remain impartial or whether the phone calls would influence their decision in any way. These questions specifically addressed the competency of the jurors to remain impartial. Where, as here, the proceeding did not involve examination of witnesses or the presentation of evidence against the defendant, such as testimony of a witness on an issue at trial, the defendant’s rights under the confrontation clause were not violated by his exclusion. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987); United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985); Snyder v. Massachusetts, 291 U.S. 97, 105-106,108, 54 S. Ct. 330, 78 L. Ed. 674 (1934).

B

The United States Supreme Court has also recognized a defendant’s right, under the due process clause of the fourteenth amendment to the federal constitution, “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyder v. Massachusetts, supra, 105-106. “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id., 107-108; see also Faretta v. California, 422 U.S. 806, 819 n.15, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). “Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, supra, 745.

The voir dire of the jurors concerning possible jury tampering was a critical stage of the criminal proceeding. The only question that we must resolve, then, is whether the defendant’s presence would have contributed to the fairness of the procedure. “The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication. Rushen v. Spain, 464 U.S. 114, 125-26, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (Stevens, J., concurring in judgment).” United States v. Gagnon, supra, 526. As the court cautioned in Snyder v. Massachusetts, supra, 115, however, the exclusion of a defendant from a proceeding should be considered in light of the whole record. In this case, the trial had already been in progress for several weeks and the defendant had at all times been present. In fact, the defendant had been actively assisting his counsel and participating in the defense. The exclusion of the defendant at a time when the court was inquiring about jury tampering, could have called the attention of the jurors to the defendant’s absence.

Moreover, the Supreme Court has emphasized that for the purposes of procedural due process a defendant’s presence is required in proceedings concerning jury tampering. The trial court “should determine the circumstances, the impact . . . upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties . . . . ” (Emphasis added.) Remmer v. United States, 347 U.S. 227, 229-30, 74 S. Ct. 450, 98 L. Ed. 654 (1954); see also Smith v. Phillips, 455 U.S. 209, 216-17, 217 n.7, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) (defendant’s presence required in a “Remmer-type” hearing); cf. Rushen v. Spain, supra, 126-27 (Stevens, J., concurring) (defendant has a right to be present incident to his right to a hearing in cases of jury tampering).

The mid-trial voir dire proceeding bore a substantial relationship to the defendant’s ability to defend himself because the line of questioning pursued by the court centered on the ability of each individual juror to remain impartial throughout the trial and then to render a verdict based solely on the evidence presented at trial. The questions were directly related to each juror’s ability to render a verdict untainted by the fact of the telephone calls. The exclusion of the defendant from the courtroom violated his right to be present under the due process clause of the fourteenth amendment. It is necessary, therefore, to undertake a harmless error analysis. We do so because the defendant concedes that a harmless error analysis applies in a situation where a defendant is excluded from a critical stage of the proceedings in which his presence would contribute to the fairness of the proceeding. We therefore, need not decide whether the fourteenth amendment right to be present under the due process clause is so central to the requirement of a fair trial that its violation per se requires that the conviction from which it arose be set aside. See, e.g., Kentucky v. Stincer, supra, 747 n.21.

The record establishes that defense counsel was present to safeguard the defendant’s interests; see Mann v. Dugger, 817 F.2d 1471, 1476 (11th Cir. 1987); United States v. Stratton, 649 F.2d 1066, 1080-81 (5th Cir. 1981) (attorney’s presence relevant to the harmless error analysis); the defendant listened to the examination of the individual jurors; the trial court ordered transcripts of the proceeding to be given to the parties; and the court permitted the defendant and his counsel to confer about the matter. Furthermore, the defendant expressly refused any instruction by the court to the jury that the jury disregard his absence. Most important, the transcript of the voir dire establishes each juror’s ability to remain impartial. Defense counsel acknowledged at trial that the juror’s responses were straightforward. The defendant’s claim is, in essence, that his absence from the courtroom could lead to an inference by the jury that he had prompted or made the phone calls. Because the content of the calls was not in the defendant’s interest, the jury could not reasonably have made such an inference. Furthermore, the responses of the jurors indicate that they were confused as to the purpose of the calls, characterizing them as “totally unrelated,” “didn’t make any sense,” and “didn’t have any point.”

The state has met its burden of proving harmlessness beyond a reasonable doubt; Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); and, therefore, the defendant’s exclusion from the voir dire proceeding was not reversible error.

IV

In his fourth claim of error, the defendant argues that the trial court erred in denying his motions for a mistrial based on the prejudicial nature of certain testimony of two state’s witnesses. Robinson testified that a gun in evidence in this case was also test-fired and compared to bullets in another case. Deborah Baughn, a criminalist from the state forensic laboratory, testified as to the existence of a red stain on pants worn by Flinter, an alleged accomplice, and seized at the time of arrest. We find no reversible error.

A

The state presented the testimony of Robinson, a firearms expert, who examined two guns retrieved from the bushes, and three cartridges found in the road. After the witness identified the weapons and cartridges from the state’s exhibits, the prosecutor asked: “And what did you do, first of all, with the weapons?” Robinson replied: “The Walther, state’s exhibit WW, was test-fired on an earlier date than the Smith and Wesson because I was requested to compare test bullets from it to evidence in a different case. Then in December I examined and test-fired the Smith and Wesson pistol with the intent to compare the test bullets and cartridge cases to test bullets and cartridges submitted in this case.”

The defendant did not object to this testimony but subsequently requested a mistrial on the ground that the testimony was prejudicial in that the jury could speculate that the gun was used in another case. Although the trial court denied the defendant’s motion, it did allow defense counsel to voir dire the witness concerning the test-firing. Upon examination, Robinson revealed that the Walther gun had been test-fired to compare with bullets in a homicide case, which proved negative. The court offered to give a curative instruction to the jury so that it would know that the gun was not involved in another criminal matter. The defendant expressly requested that the court not so instruct the jury and the court acquiesced.

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.” State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); Practice Book § 887. The ultimate question on a motion for mistrial is whether the alleged offense resulted in “ ‘substantial and irreparable prejudice to the defendant’s case.’ ” State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985), quoting the standard set forth in Practice Book § 887. A motion for a mistrial is directed to the trial court’s “broad discretion.” State v. DeMatteo, 186 Conn. 696, 704, 443 A.2d 915 (1982).

The testimony concerning the test-firing of the gun was not relevant or probative of any issue before the jury. If improper evidence has “ ‘a tendency to excite the passions, awaken the sympathy, or influence the judgment of the jury,’ ” it is prejudicial to the defendant. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970), quoting State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 (1961). In Ferraro, a state’s witness testified that a detective found pistols, ammunition and a ski mask in the defendant’s apartment, evidence which was later determined by the court to have no connection to the case being tried. The court failed to give a curative instruction even though the defendant had requested that one be given. On appeal, a new trial was ordered because the evidence could not be considered harmless: “At the very least the jury could have believed that these defendants were violent individuals. The inflammatory nature of the testimony may well have affected the jury’s judgment. In addition to being highly inflammatory, the retention of the testimony in the record, and the refusal to instruct the jury to disregard it, combined to permit the jury to indulge in guess, surmise and speculation.” State v. Ferraro, 45-46.

The testimony in the present case, however, is not unduly prejudicial. It had no tendency to excite the passions or awaken the sympathy of the jury. Nor did it have any tendency to influence the judgment of the jury.

Second, the gun was already in evidence. This is not a case where prejudicial physical evidence was admitted. See, e.g., State v. Girolamo, 197 Conn. 201, 207, 496 A.2d 948 (1985); State v. Onofrio, 179 Conn. 23, 31, 425 A.2d 560 (1979); State v. Addin, 171 Conn. 105, 115, 368 A.2d 212 (1976). Third, the testimony did not directly connect the defendant to the gun or to the unrelated crime for which the gun was test-fired. The challenged testimony was merely one statement in a lengthy trial.

Finally, and most important, the defendant declined a cautionary instruction on the matter. The trial court could have decided that the testimony, even if prejudicial enough to warrant an instruction, did not call for a mistrial. Defense counsel cannot opt for a mistrial instead of a curative instruction, as if the two were interchangeable. “If defense counsel decides to move for mistrial and altogether eschews the instruction, the trial court cannot be compelled by that decision to go further than it otherwise would.” State v. Hawthorne, 176 Conn. 367, 374, 407 A.2d 1001 (1978); see also State v. Maldonado, 193 Conn. 350, 357-58, 478 A.2d 581 (1984); State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976) (prejudice to defendant could have been remedied by court’s striking of the improper testimony and instructing the jury to disregard it and, therefore, trial court did not abuse its discretion in denying motion for mistrial).

The court concluded that, under the circumstances, the testimony of Robinson did not warrant the extreme remedy of a mistrial. We agree with the trial court’s determination that the testimony did not deprive the defendant of a fair trial. We find nothing in the record to indicate that the court was wrong in its conclusion, or that those remarks in any way contributed to the verdict. We hold, therefore, that the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

B

The defendant next claims that the trial court erred in denying his motion for mistrial which he based on Baughn’s testimony on cross-examination. Specifically, the defendant claims that the trial court erred in allowing her testimony as to the existence of a red stain on Flinter’s pants which were seized at the time of arrest, because the state failed to disclose that finding pursuant to discovery orders.

Prior to trial, Baughn, examined the pants and sweater worn by Flinter at the time he was taken into custody. Pursuant to Practice Book § 741 (6), the defendant filed a motion for discovery seeking the disclosure of all the reports and findings of expert witnesses in the case, which motion was granted. In compliance with that discovery order, the state disclosed two reports prepared by Baughn. The reports made no finding of red stains on the pants and stated that “[n]o red dye residue was observed” on the pants. The defendant’s own four experts had access to the state’s evidence, including the pants, which they photographed and examined.

On direct examination at trial, Baughn testified as to the chemical properties of the red dye used in the exploding bait-money packets from the bank. She also testified as to a comparison of those chemical properties with red stains that were found on several clothing exhibits. Out of the presence of the jury, the trial court sustained the defendant’s objection to the state’s proffer of evidence of the testing performed on Flinter’s sweater and pants. Thus, on direct examination, Baughn did not testify as to any testing of those articles of clothing. On cross-examination, however, defense counsel referred to Baughn’s written reports and questioned her about the pants seized from Flinter: “And with regards to that other pair of pants, you also found no red stains, is that correct?” The witness replied: “The other pair of pants that we got in the laboratory, there were red stains on them but after testing them there we could not get enough off the pants to get a positive result.”

The defendant moved for a mistrial on the ground that Baughn’s written reports did not indicate the presence of red stain on Flinter’s pants, and that her testimony was prejudicial to the defendant. The trial court denied the motion and noted that the defendant had raised the issue of testing Flinter’s pants. The question before us, once again, is whether the trial court abused its discretion in denying the motion for mistrial.

The United States Supreme Court has made clear that “there is no general right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). “In the absence of a statute or court rule to the contrary, a person accused of .a crime is not, as a matter of right, entitled to inspection or disclosure of evidence in the possession of the prosecution.” State v. Festo, 181 Conn. 254, 263, 435 A.2d 38 (1980). The trial court, pursuant to Practice Book § 741 (6), ordered the state to disclose copies of the “results or reports of scientific tests, experiments or comparisons made in connection with the particular case.” The state complied with this order when it turned over to the defendant the two written reports prepared by Baughn. Practice Book § 741 (6) does not require the state to disclose a physical description of an item subjected to testing, nor must it disclose details of the testing procedure.

“ ‘The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial.’ State v. Festo, supra, 265.” State v. Cosgrove, 186 Conn. 476, 489, 442 A.2d 1320 (1982). From the reports, the defendant was aware that Flinter’s pants had been tested and that no “red dye” had been found on them. By his objection, the defendant kept that specific information from the jury during Baughn’s direct testimony. On cross-examination, apparently deciding to pursue that issue, defense counsel went outside the findings of Baughn’s report and inquired as to whether the pants contained any “red stain,” a condition not addressed by the report. The defendant’s expert witnesses had access to the pants themselves prior to trial. When defense counsel was asked at oral argument in this court whether he saw a red stain on the pants, he replied that he would have to say that he “saw something.” Under these circumstances, the defendant can hardly claim surprise. See, e.g., State v. Summerville, 13 Conn. App. 175, 183, 535 A.2d 818 (1988). We hold that the trial court properly denied the defendant’s motion for a mistrial.

V

In his fifth claim of error, the defendant argues that the trial court erred in denying his motion to suppress identification testimony, and in allowing into evidence identification testimony which had been tainted by a prior suggestive show-up.

Prior to trial, the defendant had filed a motion to suppress identification testimony on the ground that it was tainted by an impermissibly suggestive show-up of the defendant. This motion was continued to the time of trial. At trial, the state did not offer any evidence of the pretrial identification. Instead, it offered the bank tellers’ testimony about their observations of the robbers during the commission of the crime. The record reveals that immediately after the robbers exited the bank, the tellers, in accordance with bank procedure, made written notes of their observations to aid in later identification. These notes, together with the tellers’ written statements made to the police, were turned over to the defendant during the trial. Thus, although no visual in-court identification of the defendant was made at trial, several eyewitnesses testified as to the perpetrators’ race, sex, height, weight, body build and clothing.

During the cross-examination of one of the bank tellers, the defendant renewed his motion to suppress and made motions to strike and for a mistrial. The trial court allowed the defendant to make an offer of proof and to voir dire the witness outside the presence of the jury. The court then denied these motions on the ground that the state had not elicited any testimony of the show-up procedure and because the witness had not made a visual in-court identification of the defendant.

Our review of the record, transcripts, and appellate briefs in this case reveals that there was no testimony about the show-up procedure used and that no visual in-court identification of the defendant was made by the state’s witnesses. The record merely reveals that the testimony of bank tellers described the robbers according to each witness’ recollection of what had occurred at the time of the robbery. As the defendant accurately stated at oral argument, none of the witnesses visually identified the defendant in the courtroom as being the same individual who robbed the bank, or as exhibiting the same or similar characteristics as one of the robbers was described as possessing. See also State v. Graham, 13 Conn. App. 554, 561-62, 538 A.2d 236 (1988).

Contrary to the defendant’s belief, this case is not one where an in-court identification is challenged on the ground that it was tainted by an impermissible out-of-court identification procedure. See State v. Mitchell, 204 Conn. 187, 200, 527 A.2d 1168, cert. denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Parker, 197 Conn. 595, 597, 500 A.2d 551 (1985). There is simply no in-court identification to suppress in this case. Because there was no visual in-court identification, any suggestiveness of the show-up procedure and out-of-court identification is not at issue. Accordingly, the trial court did not err in denying the defendant’s motions to suppress, to strike, and for mistrial.

VI

The defendant’s final claims of error concern the eighty year effective sentence imposed by the trial court. The defendant claims that one trial court, Quinn, J., erred in imposing sentence in an illegal manner, and that another trial court, Kinney, J., erred in refusing to hear the merits of his motion to vacate the sentence. We conclude that the trial court did not impose the defendant’s sentence in an illegal manner and, therefore, we do not need to address the defendant’s claim with respect to his motion to vacate his sentence.

The defendant does not argue, nor could he, that the trial court imposed an illegal sentence. An “illegal sentence” is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. See 8A J. Moore, Federal Practice, para. 35.03[2], pp. 35-35 through 35-36. The sentence imposed upon each count is within the statutory limits set forth in General Statutes § 53a-35a (4).

The defendant does argue, however, that his sentence was imposed in an “illegal manner.” Sentences imposed in an illegal manner have been defined as being “within the relevant statutory limits but . . . imposed in a way which violates defendant’s right... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . . ” 8A J. Moore, supra, pp. 35-36 through 35-37.

A

The defendant raises three specific grounds in support of his claim that the trial court imposed sentence in an illegal manner. The defendant’s first ground is that the trial court, subsequent to the jury’s verdict but prior to the sentencing, visited the scene of the crime without giving notice to the defendant or to defense counsel. He argues, as a result, that his constitutional right to due process of law was violated because the court’s failure to give notice to him of its visit afforded him with no opportunity to challenge or to rebut the conclusions and inferences drawn by the court during its ex parte investigation of the crime scene.

At the sentencing hearing, the trial court stated: “It just seems to me that the evidence that was presented in this case was overwhelming. There was no question in my mind that the evidence that was put on by Mr. McNellis in his own defense was something that he dreamed up .... I think that whole story that he presented to this jury was as wild a story as I ever heard. To show you my concern for it I did go out to the location after the trial was all over, and I went over the route that his witnesses said they went on. I observed from the points where his witnesses said they observed. There was no way that any of their story could ring true with what they testified to and the actual site itself.”

We begin our analysis with the principle that “a sentence imposed . . . within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). It has long been the practice in this state to permit the sentencing court to exercise a wide discretion as to the sources and types of information used to assist it in determining the sentence to be imposed within the limits fixed by law. State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). Such practice facilitates the penal philosophy that sentences ought to be individualized to fit not only the crime but also the criminal. United States v. Grayson, 438 U.S. 41, 48, 98 S. Ct. 2610, 57 L. Ed. 2d 582 (1978). “[BJefore making a [sentencing] determination, a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, supra, 446.

Consideration of many sources of information is possible because “ ‘due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial.’ ” State v. Huey, supra, 127, quoting United States v. Robelo, 596 F.2d 868, 870 (9th Cir. 1979).

The defendant claims that it was error for the trial court to rely on such information at sentencing when it failed to give notice to the defendant of its ex parte investigation of the crime scene, thereby violating his federal constitutional right to procedural due process. We know of no case, nor has either party cited any authority, which would serve as guidance in deciding this issue.

This is not a case where the court engaged in an ex parte communication, or denied the defendant the right to challenge statements in a report of a presentence investigation. That right is insured by our practice of giving the defendant a copy of such report in advance of the sentencing hearing so that he may controvert or explain the facts reported therein. See, e.g., State v. Harmon, 147 Conn. 125, 129, 157 A.2d 594 (1960); see also American Bar Association Standards for Sentencing Alternatives and Procedures § 18-6.9, Judicial Restraint, and Comment thereto. This case, rather, involves an ex parte and solo view of a crime site.

The trial court, in its remarks at sentencing, stated that it did not believe the defendant’s defense. The court also told the defendant that it went to the site of the crime “to show you my concern,” and concluded that the testimony of the defendant and his witnesses did not “ring true” based on the court’s observation of the site. The court, therefore, in essence, told the defendant that the purpose of its view was for the benefit of the defendant. The remarks of the court indicate that its view of the scene reinforced the court’s belief that the jury’s guilty verdict was correct. The viewing, therefore, did not add or detract anything from what the trial court believed the evidence to show about the defendant’s guilt. There is no indication from the court’s remarks that the visit to the crime scene in any way affected the term of the sentence imposed upon the defendant. The failure to give notice that the court would visit the scene was not tantamount to a violation of due process of law in this case because we con-elude that the trial court did not rely on such information to enhance the defendant’s sentence. Therefore, we cannot hold that the sentence was imposed in an illegal manner.

B

The second ground the defendant raises in support of his claim that his sentence was illegally imposed is his contention that the sentencing court enhanced his sentence on the basis of false information of past criminal conduct. The defendant contends that “[t]he court here placed great emphasis on its belief that Mr. McNellis had committed an assault and was not properly punished for it and enhanced his sentence because of it.” The defendant claims that although he was convicted and sentenced in 1969 for carrying a dangerous weapon, he had not assaulted anyone in connection with that offense, but that the sentencing court had the false belief that he had assaulted someone in 1969.

When a defendant is actually prejudiced by the prosecution’s submission of misinformation regarding his prior criminal record, or by the court’s careless misreading of that record, a defendant is denied due process of law and the conviction cannot be sustained. Townsend, v. Burke, 334 U.S. 736, 740-41, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). A sentence premised on a materially untrue criminal background of the defendant would be constitutionally infirm. In this case, however, we cannot know the actual facts of the defendant’s criminal involvement.

The record on appeal is inadequate to allow this court to decide whether the sentence was imposed in an illegal manner. We have examined the trial court file, the record on appeal, the transcripts, and all appellate briefs. Our inquiry reveals that the defendant has failed to supply us with (1) a copy of the presentence investigation report which allegedly contains the police report concerning the defendant’s arrest in 1969, (2) a copy of the motion to vacate illegal sentence, (3) a transcript of the imposition of sentence for the 1969 offense wherein the prosecuting authority allegedly states that “there was no assault by Mr. McNellis,” and (4) a clear statement of the facts relevant to this issue. We are unclear as to whether the defendant is claiming that an inaccurate report of the 1969 assault incident was before the sentencing court or whether the sentencing court received accurate police reports but carelessly misinterpreted them in coming to the erroneous belief that the defendant had committed the assault.

This court cannot respond to claims based on allegations extraneous to the formal record; Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 27-28, 453 A.2d 769 (1983); Chaplin v. Balkus, 189 Conn. 445, 448, 456 A.2d 286 (1983); nor to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record. See Gould v. Gould, 164 Conn. 387, 389, 321 A.2d 443 (1973). “It remains the appellant’s responsibility to secure an adequate appellate record, and under normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied. Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982).” Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982). The defendant has not given this court sufficient facts pertinent and necessary to resolving this issue. Such failure leaves this court with a factual record which is inadequate for appellate review. See, e.g., Aetna Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 436, 476 A.2d 577 (1984); State v. Anderson, 178 Conn. 287, 290-91, 422 A.2d 323 (1979).

C

The third ground the defendant asserts in support of this claim is that the sentencing court penalized him for exercising certain rights, and therefore the sentence was imposed in an illegal manner. The defendant directs this court’s attention to remarks made by the trial court. The remarks, when read in context of the entire sentencing hearing, do not show that the court enhanced the defendant’s sentence on account of defense counsel’s request for a daily change of clothes for the defendant or on account of the defendant’s testimony about his incarceration. Rather, the transcript indicates that the sentencing court referred to the defendant’s conduct and demeanor during the trial. A sentencing court may legitimately consider the evidence heard at trial, as well as the conduct and demeanor of the accused. United States v. Grayson, supra, 50; Chaffin v. Stynchcombe, 412 U.S. 17, 22, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973). The trial court did not rely on considerations not in the record. See 8A J. Moore, supra, pp. 35-36 through 35-37. We hold, accordingly, that the court did not impose the defendant’s sentence in an illegal manner.

There is no error.

In this opinion the other judges concurred.

       The fourth amendment to the United States constitution provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . ” This constitutional right is made applicable to the states through the fourteenth amendment to the United States constitution. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       Article first, § 7 of the Connecticut constitution provides in pertinent part: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . . "In support of his state constitutional claim, the defendant directs this court’s attention to the decision in State v. Kirnbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), as support for the proposition that the state constitution affords more substantive protection to citizens than does the federal constitution in the determination of probable cause to arrest. The defendant has failed, however, to provide any analysis to distinguish or to amplify his state rights with respect to this issue. We decline to undertake such an analysis. See State v. Carey, 13 Conn. App. 69, 72 n.2, 534 A.2d 1234 (1987).

       Practice Book § 967 provides in pertinent part: “The defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing, except as provided in Sec. 966. Whenever present, the defendant shall be seated where he can effectively consult with his counsel and can see and hear the proceedings.”

       The right to be present at all stages of a criminal trial, “may be waived by the defendant’s voluntary and deliberate absence from the trial without good cause, or by his conduct or misconduct. Illinois v. Allen, [397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)]; State v. Parham, 174 Conn. 500, 505, 391 A.2d 148 (1978); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976);” State v. Giorgio, 2 Conn. App. 204, 206-207, 477 A.2d 134 (1984). Also, in Remmer v. United States, 347 U.S. 227,229-30, 74 S. Ct. 450, 98 L. Ed. 654 (1954), the Supreme Court stated; “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial .... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140, 148-50 [13 S. Ct. 50, 36 L. Ed. 917 (1892)]; Wheaton v. United States, 133 F.2d 522, 527 [1943].”

       Where the trial court’s error does not implicate constitutional protections, the burden of establishing harm sufficient to warrant a reversal rests with the defendant appellant. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Truppi, 182 Conn. 449, 465, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981).

       Practice Book § 887 provides in pertinent part: “foe prejudice to DEFENDANT
      “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case.”

       Practice Book § 741 (6) requires the state, upon written motion by the defendant, to disclose “[c]opies of results or reports of scientific tests, experiments or comparisons made in connection with the particular case which is known to and obtainable by the prosecuting authority and within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial . . . .”

       Under the rule announced in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), however, the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . . .” Id., 87; see also State v. Grayton, 163 Conn. 104, 108, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972). The defendant in this case does not claim that the testimony of Baughn concerning a red stain on Flinter’s pants is in any way exculpatory. In fact, the parties appear to be in agreement that this evidence could only be considered as inculpatory. Thus, the Brady doctrine is inapplicable to this case. See, e.g., State v. Festo, 181 Conn. 254, 263 n.4, 435 A.2d 38 (1980).

       At some point during the trial, the defendant, in an apparently spontaneous utterance, spoke out loud in the courtroom. One of the state’s witnesses, a teller at the bank, based on that courtroom utterance, made a voice identification of the defendant on redirect examination. This in-court voice identification is not at issue on appeal.

       After sentencing, the defendant made a motion to vacate the sentence pursuant to Practice Book § 935, which provides that a court “may at any time correct an illegal sentence . . . or it may correct a sentence imposed in an illegal manner . . . . ” That motion was based on exactly the same grounds as are now before this court on appeal.

       We are aware that the scene of a crime, particularly an outdoor scene covering a fairly large area, is not immutable. Landmarks, such as rocks, bushes and trees, extant at the time of the crime, may no longer be present at a subsequent viewing of the scene. The contours of the land itself may also be different. It would, therefore, under ordinary circumstances, be advisable that a trial court not conduct, ex parte, its own investigation of a crime scene. See Decko v. Wood, 6 Conn. App. 95, 96-97, 503 A.2d 185, cert. denied, 199 Conn. 801, 505 A.2d 1249 (1986).

       At the sentencing hearing, the court stated: “The man is not fit to walk the street. There’s no question. I read one of these [police] reports, and I couldn’t get over it, I was amazed. He was arrested on a charge of assault where he got out of a car with chains and beat some poor guy who happened to be there, beat him with chains. He pleaded guilty to carrying a dangerous weapon. He should have gone to prison for twenty years at that time.”

       A transcript of the hearing on the motion to vacate the sentence is filed with this court.

       It is clear from a reading of the sentencing transcript that the defendant and his counsel received in advance a copy of the presentence investigation report. No objection was made as to any statement in it concerning the 1969 incident. Our rules provide that defense counsel should bring to the court's attention “any inaccuracy in the presentence report of which he is aware or which the defendant claims to exist.” Practice Book § 925.

       At the time of trial, the defendant was incarcerated. Defense counsel made motions requesting a daily change of civilian clothes. In its sentencing remarks, the court stated: “[At the start of trial,] I was rather amazed to find out that this is a man accused of all these offenses. But then I started to get an inkling of a man you have here, and right off the bat he started trouble. He wanted a change of clothes every day and that set the tone from there on out. Mr. McNellis was insisting that the jury should not know that he was incarcerated, that he had a constitutional right to a change of clothes every single day no matter what the inconvenience or what the rules were of the prison or of the sheriffs department and in going through all that he finally managed to have a change of clothes every day. How he did it, I don’t know. Then he takes the stand and proceeds to tell the jury he is in jail. So all that hullabaloo in the very beginning was just a waste of time. That’s what this man is, a waste of time.”


author: Foti, J.

text:
    Town of Plainfield v. State Board of Mediation and Arbitration et al.
    (5833)
    Daly, Stoughton and Foti, Js.
    Argued May 17—
    decision released August 9, 1988

      Edward T. Lynch, Jr., for the appellant (plaintiff).

      Robert J. Murray, Jr., for the appellee (defendant Local 564, International Brotherhood of Police Officers).
   Foti, J.

The dispositive issue of this appeal is whether the trial court correctly concluded that the issue of the arbitrability of the collective bargaining agreement was a question for the arbitrators.

The facts relevant to this appeal are not in dispute. The plaintiff and the defendant union have been parties to a collective bargaining agreement since 1983. On September 13, 1984, the town discharged Gary Suprenant, a police officer who was covered by the agreement. Suprenant filed a grievance with the town which was denied on September 20, 1984. The union subsequently filed a demand for arbitration of the grievance with the state board of mediation, which the board received October 2,1984, more than ten days after the grievance had been denied. The union did not file a copy of the demand with the town at the time it gave notice to the board of mediation as required by the collective bargaining agreement.

The town subsequently brought suit in the Superior Court seeking a determination of the arbitrability of the grievance. The town moved for summary judgment, claiming that there was no issue of material fact because the union admitted that it had filed its demand more than ten days after the town denied the grievance and because the union failed to give the town notice of its demand for arbitration, and that both of these steps are preconditions to arbitration. The court denied the town’s motion, and, after a hearing on the merits, rendered judgment for the defendant. The trial court, relying on Wiley & Sons v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964), concluded that because the dispute was procedural, the arbitrability of the grievance should be decided by the arbitrators and not the court. We disagree.

In Wiley, the court concluded that procedural questions are properly considered in the context of the substantive claims raised by the parties, as procedure does not exist in a vacuum. “Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute . . . .” Wiley & Sons v. Livingston, supra, 557. The Wiley court reached this conclusion only after it determined that the particular collective bargaining agreement did not limit the scope or nature of issues that were subject to arbitration. The court reasoned that “just as an employer has no obligation to arbitraté issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all.” Id., 547. Thus, the court in Wiley reached the conclusion that the procedural questions were subject to arbitration only after it reached the conclusion that the collective bargaining agreement was binding on the employer, and that no issues were excluded from arbitration by the express terms of the agreement.

Our Supreme Court has recently reaffirmed the fundamental principle that it is the collective bargaining agreement that determines which issues are subject to arbitration. “In Gary Excavating, Inc. [v. North Haven, 164 Conn. 119, 318 A.2d 84 (1972)], this court stated that whether arbitrators or courts should resolve questions of timeliness and waiver must be decided on a case by case basis depending on the language of the contract. ‘In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.’ . . . ‘[T]he agreement between the parties remains the focal point for determining whether timeliness and notice requirements are matters for arbitration.’ ” (Citations omitted.) East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656, 539 A.2d 125 (1988). The court reached its conclusion that the arbitrators could decide the procedural questions of timeliness and waiver after finding that there were “no restrictions in the collective bargaining agreement on what issues may be decided by the arbitrators.” Id.

Neither Wiley nor East Hartford, stands for the proposition that once the court determines that a procedural dispute underlies the substantive claim, the entire matter is necessarily arbitrable. To the contrary, both Wiley and East Hartford reiterate the basic tenet that the contract controls which issues the arbitrators can decide. See also Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, 15 Conn. App. 332, 333-34, 544 A.2d 256 (1988) (discussing the centrality of contract provisions in determining which issues are subject to arbitration).

In this case, article 16, § 10 (b) of the collective bargaining agreement provides in relevant part: “In any instance elected by the Town, it may seek a Court determination of arbitrability.” We conclude that this express language of the agreement is clear and unambiguous. Where, as in this case, the express language of the agreement provides for the judicial determination of arbitrability then that provision is controlling and cannot be shifted to the arbitrators by characterizing it as procedural or substantive.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The town withdrew its complaint against the state board of mediation and arbitration, leaving Local 564 of the international brotherhood of police officers the sole defendant.

       The following provisions of the collective bargaining agreement provide the procedure for demanding arbitration: “Article 16, Section 4.
      “If the Union is not satisfied with the decision of the Chief or his designee and elects further processing, the Union shall submit a written demand tor arbitration within ten (10) calendar days of the decision of the Chief or his designee to the Connecticut State Board of Mediation and Arbitration, and by filing a simultaneous copy of the demand with the Town.”
      “Section 10.
      “If a grievance is not submitted within the prescribed time limit as stated, it shall be deemed settled. If the Town fails to render its decision on a grievance within the time limits specified, such grievance shall be processed to the next step. . . .
      “Section 10. (b) Arbitration
      “The arbitration hearing will be held in accordance with the rules of the Board of Mediation and Arbitration. However, the arbitrator or the arbitration panel shall have no power to add to, subtract from, alter or modify this Agreement, or to grant matters which were not obtained in the bargaining process, or to impose any remedy or right of relief for any period of time prior to the effective date of this Agreement, or to grant pay retroactively for more than thirty (30) calendar days prior to the date the grievance was submitted at Step 1.
      “The arbitrator or arbitration panel shall render its decision in writing no later than thirty (30) calendar days after the conclusion of the hearing unless the parties jointly agree otherwise. The arbitrator’s decision shall be final and binding on the parties in accordance with Connecticut General Statutes Section 52-418, provided, however, neither the submission of questions of arbitrability to any arbitrator in the first instance nor any voluntary submission shall be deemed to diminish the scope of judicial review over arbitrable awards, including awards on competent jurisdiction to construe any such awards as contravening the public interest. In any instance elected by the Town, it may seek Court determination of arbitrability.”


author: Spallone, J.

text:
    In re Lea T. et al.

    (6163)
    Dupont, C. J., Borden and Spallone, Js.
    Argued April 5—
    decision released August 16, 1988

      Judith Dixon, with whom, on the brief, was Marcia Tannenbaum, legal intern, for the appellant (respondent father).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

      Paul R. Whalen, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Spallone, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights. The respondent’s sole claim on appeal is that the trial court erred in finding, by clear and convincing evidence, that the respondent had failed to rehabilitate himself under the standards set forth in General Statutes § 17-43a (b) (2). We find no error.

The following facts, as found by the trial court, are relevant to this appeal. The respondent is the acknowledged father of two minor children, a daughter born on September 7,1981, and a second daughter born on May 23,1983. The respondent never married the children’s mother and discontinued his live-in relationship with her soon after the birth of his second daughter in 1983. The two girls were placed in foster care in early October, 1984, and were adjudicated uncared-for on December 20, 1984. The respondent was not a member of the household at the time of this adjudication, but was sent administrative review notices by the petitioner, the department of children and youth services (DCYS). On August 2, 1985, the petitioner filed petitions to terminate the parental rights of both the mother and the respondent.

A full trial was held before the court on various dates in January and February, 1987. By memorandum of decision issued June 2,1987, the court found that the petitioner had established, by clear and convincing evidence, grounds for the termination of parental rights in the children, and thereby ordered that such rights be terminated. Only the respondent father has appealed from the court’s judgment.

The respondent claims error in the court’s finding, by clear and convincing evidence, that the statutory criteria for the termination of parental rights had been met. See footnote 1, supra. We are unable to consider this claim on its merits due to the respondent’s failure to provide us with an adequate appellate record.

Although seven witnesses testified in the trial court, the respondent has provided us with the transcribed testimony of only three witnesses. The trial court stated in its memorandum of decision that ample testimony had been introduced through the seven witnesses to support its conclusion that the “clear and convincing evidence” standard was satisfied. The court specifically identified each witness and included brief summaries of the contents of each witness’ testimony which provided support for its decision. We cannot review a claim of insufficient evidence where, as here, we have not been afforded the opportunity to review fully all of the evidence which was before the trial court. “[T]he validity of any claim that the trial court’s decision is not supported by the evidence may be tested only by reference to the record together with the transcripts and exhibits filed in the case; see Morningside Assn. v. Morningside Development, Inc., 172 Conn. 60, 63, 372 A.2d 141 (1976).” (Emphasis added.) McGaffin v. Roberts, 193 Conn. 393, 409, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). “ Tt is the responsibility of the appellant to provide us with an appellate record that adequately supports his claim of error. Practice Book § [4061].’ ” (Citations omitted.) Taylor v. American Thread Co., 200 Conn. 108, 110-11, 509 A.2d 512 (1986), quoted in Commissioner v. Youth Challenge of Greater Hartford, Inc., 206 Conn. 316, 322, 537 A.2d 480 (1988).

A claim of error cannot be predicated on an assumption that the trial court acted incorrectly. Long v. Loughlin, 171 Conn. 291, 292-93, 370 A.2d 925 (1976). Rather, we must assume that, absent evidence to the contrary, the trial court acted properly. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 17-43a (b) provides in pertinent part: “The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that ... (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child . . . .”

       The most harmful of the respondent’s omissions is his failure to provide us with the testimony of the children’s foster mother upon which the trial court relied heavily in its decision that termination of the respondent’s parental rights was in the best interest of the children.