author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. RAYMOND PHIDD
    (13999)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued November 27, 1995
    officially released May 23, 1996

      Mary Miller Haselkamp, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Donald Browne, state’s attorney, and Cornelius Kelly, assistant state’s attorney, for the appellee (state).

       May 23, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   DUPONT, C. J.

The defendant appeals from the judgment of conviction, following a jury trial, of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). On appeal, the defendant claims that the trial court (1) denied him his state and federal constitutional rights to conflict free representation by failing to inquire of him about a possible conflict of interest arising because he and a codefendant were jointly represented for a time at his trial by the same counsel, and (2) denied him his right to due process and a fair trial by failing to declare a mistrial as a result of the alleged conflict of interest. We affirm the judgment of conviction.

Certain facts serve as the background for the issues raised. On August 6, 1990, a member of the Bridgeport police department witnessed drug activity on the comer of Stratford and Union Avenues. After observing three individuals for approximately fifteen minutes and believing that he had probable cause to arrest the individuals, he radioed for backup. Two additional officers arrived and arrested two of the three suspects, the defendant and David Bell.

The defendant and Bell were originally codefendants in a trial that began on May 29, 1991, in which both were represented by the same attorney. After the state presented its evidence against both, the state entered a nolle in Bell’s case because it believed that the evidence was insufficient to support a conviction as to him. The attorney, as Bell’s counsel, agreed not to make a motion to dismiss the case against Bell until after the jury returned a verdict in the defendant’s case. The defendant’s counsel at the close of the state’s case moved for a judgment of acquittal on behalf of the defendant based on a claim of insufficient evidence, which the trial court denied.

The trial proceeded against the defendant only, and the jury was made aware of that fact before the defendant presented his case. The defense called both the defendant and Bell as witnesses. Bell’s testimony was favorable to the defendant. Bell testified that he was walking up Stratford Avenue, from the direction of Carol Avenue, where he met the defendant and where he and the defendant talked for several minutes before departing. The defendant testified that he was walking to his girlfriend’s house that night when he encountered Bell and, after a brief discussion, began walking down Union Avenue where he was arrested. The jury returned a verdict of guilty on May 31, 1991, and the defendant was sentenced on August 29, 1991. No direct appeal was taken from the judgment of conviction.

On July 7,1992, the defendant, pro se, filed a petition for a writ of habeas corpus, alleging that “my lawyer didn’t file the paper,” “the lawyer didn’t follow through,” and that the defendant had “no knowledge of what my lawyer was obligated to do for me.” On May 20, 1994, the habeas court, Sferrazza, J., pursuant to a stipulation between the parties, restored the defendant’s appellate rights. On August 26,1994, another trial court, McGrath, J., waived fees, costs, and security necessary for taking the appeal. The defendant appealed from the judgment of conviction on September 13, 1994.

I

HABEAS COURT’S POWER TO RESTORE APPELLATE RIGHTS

Before addressing the defendant’s claims on appeal, we must first address the issue of the jurisdiction of the habeas court to accept the stipulation and to extend the time for appeal to this court by restoring the defendant’s right to appeal his conviction. This necessarily requires an answer to the question of whether the habeas court had the power to restore an appellate right to appeal not previously exercised by the defendant. The issue of whether a habeas court can grant the relief of restoration of an appeal right, upon stipulation of the parties, has not yet been definitively resolved in this state. See Douglas v. Warden, 218 Conn. 778, 791, 591 A.2d 399 (1991).

The stipulation provided: “The parties in the above-captioned case hereby stipulate that the Petitioner’s right to appeal his conviction(s) in Docket Nos. CR-54545 and CR-54534, from the Judicial District of Fair-field at Bridgeport, GA 2, be restored in full; and that the Petitioner’s application for a writ of habeas coipus, now pending, is withdrawn without prejudice. Said application for a writ of habeas corpus may be reinstated upon completion of the Petitioner’s appeal, if necessary.” The effect of the acceptance of the stipulation by the court was to restore the defendant’s right to a direct appeal that had expired nearly three years previously.

Our analysis begins with the recognition of two relevant principles. First, the time within which to bring an appeal when established by judicial rule is not a jurisdictional limit; New England Savings Bank v. Meadow Lakes Realty Co, 235 Conn. 663, 668 A.2d 712 (1996); second, there is no constitutional right to an appeal, but rather a statutory right. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). The significance of the former is that we are not dealing with a situation in which the trial court has attempted to thrust jurisdiction on us where no jurisdiction could exist, and the significance of the latter is that, although we are not dealing with a deprivation of a constitutional right to appeal, we are dealing with a cure for an allegedly unconstitutional deprivation of rights where a statutory right to appeal exists. If a state grants a statutory right to appeal judgments of conviction, the procedures relating to the appeal must conform with due process, including the right to have competent counsel to prosecute the appeal. Id.

Our analysis must also include the fact that the writ of habeas corpus is the subject of a statute, General Statutes § 52-470 (a), which gives the habeas court the power to “dispose of the case as law and justice require” and that another statute, General Statutes § 51-14, provides that the appellate rules of practice cannot abridge, enlarge or modify any substantive right or the jurisdiction of the courts.

There is a paucity of Connecticut cases that discuss, either directly or indirectly, this issue of whether a habeas court has jurisdiction to reinstate appellate rights of a defendant that would otherwise have been lost because of untimeliness. In Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756 (1965), the issue of a habeas court’s ability to reinstate aright to appeal a judgment of conviction was addressed. In Fredericks, the petitioner sought a writ of habeas corpus claiming that his constitutional right to counsel was violated because his counsel had allowed his direct appeal to be dismissed for lack of diligence. The court, relying on Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), found that “the plaintiff had been denied his right to counsel to perfect his appeal and directed his discharge from prison unless, at his further request, counsel was appointed to pursue his appeal and necessary extensions of time in which to perfect the appeal were granted.” (Emphasis added.) Fredericks v. Reincke, supra, 503.

The respondent warden cross appealed in Fredericks claiming that the habeas court was without authority to allow a late appeal. Id., 506.

The court, after stating that ordinarily the Superior Court lacks authority to allow a late appeal, reasoned that if, in a habeas case, it has been properly determined that an appeal would have existed to complain of the denial of a right granted by the federal constitution, any rule restricting an appeal merely because of lapse of time would necessarily be ineffective. Id., 508. Thus, the Fredericks court recognized that a habeas court has the power in some instances to reinstate an appeal. The rationale for the Fredericks reinstatement of the defendant’s appeal is that because the defendant was constitutionally entitled to competent counsel to represent him on appeal, no rule can absolutely prevent the habeas court from reinstating that appeal where the appeal had been dismissed for a failure of counsel to prosecute it.

Fredericks involved a request for a reinstatement of an appeal that had previously been dismissed whereas the present case involves the restoration of the right to take a direct appeal, no appeal having ever been taken. Under the circumstances of the present case, there is no significant difference between an order of reinstatement by the habeas court and the order of restoration because the claim in Fredericks and in this habeas appeal is the ineffective assistance of appellate counsel.

In LaReau v. Reincke, 158 Conn. 486, 490, 264 A.2d 576 (1969), our Supreme Court addressed the issue of whether the petitioner’s failure to file an appeal from a habeas court’s action within the requisite twenty day period constituted a jurisdictional defect stripping the appellate courts of power to entertain the appeal, or whether the respondent’s failure to object in a timely manner to an untimely appeal within ten days constituted a waiver. The court found that the twenty day time period was a rule of court and not a constitutionally or statutorily created condition precedent for a court’s jurisdiction. Id., 492. Because the rule did not affect an appellate court’s jurisdiction, the court concluded that the respondent waived his ability to object by failing to file a motion to dismiss in a timely manner. Id., 494, citing Lengel v. New Haven Gas Light Co., 142 Conn. 70, 75, 111 A.2d 547 (1955).

In State v. Stead, 186 Conn. 222, 490 A.2d 299 (1982), decided before the change relating to the time to file an appeal in Practice Book § 3097, now § 4040 (a), it was determined that the rules did not allow the trial court to grant a defendant’s motion for an extension of time to file an appeal after the time for filing had expired. The Supreme Court, however, in the exercise of its supervisory powers allowed the late appeal. Although the trial court on the facts of Stead was without power to grant an extension, the court, in a footnote, states as dicta that if it is determined in a habeas case that a defendant was deprived of a constitutional right that could have been asserted in a direct appeal, then a trial court would be authorized to allow a late appeal. State v. Stead, supra, 226 n.6.

The rules of practice are not determinative of our issue, however, but rather our statutes, the historical use of a writ of habeas corpus and case law more recent than State v. Stead, supra, 186 Conn. 222, LaReau v. Reincke, supra, 158 Conn. 486, State v. Brown, 157 Conn. 398, 254 A.2d 570 (1969), and Fredericks v. Reincke, supra, 152 Conn. 503, control.

In State v. Robinson, 10 Conn. App. 520, 523 A.2d 1365, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987), cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988), this court addressed the issue of a habeas court’s authority to grant a conditional remedy of discharge in the event the direct appeal of the petitioner was not reinstated “within forty-five days.” The habeas court’s order was rendered pursuant to a stipulation of the parties. The petitioner, in accordance with the order, filed a motion to reinstate the appeal, which was granted by the Appellate Court. We recognized the habeas court’s power to order discharge of a petitioner from custody in the event an appeal was not reinstated, but noted that the broad power vested in the trial court in a habeas coipus action “does not include the trial court’s unnecessary intrusion into an appellate court’s supervision and control of its own rules of procedure.” Id., 524. We, therefore, vacated the habeas court’s order of discharge and struck the time limitation contained in the order. Id., 527. The order in Robinson, which reflected the stipulation, permitted the petitioner to seek reinstatement of an appeal that had previously been dismissed for failure of his appellate counsel to file a brief, whereas, in the present case, the order that reflected the stipulation “restored in full” the petitioner’s right to appeal, which right had not been exercised previously. The order in the present case is silent as to how the restoration was to be accomplished. The defendant did not move to file a late appeal in this case, but simply filed one. The appeal form, which is dated September 13, 1994, on its face states that the appeal is from ajudgment of August 29,1991. This court did not question the lapse of time until the case was assigned for oral argument.

The Appellate Court has considered two recent cases in which petitioners sought reinstatement of their appellate rights due to their trial counsel’s failure to file an appeal, in which the habeas court denied the relief sought, on the ground that the evidence supporting the claim of ineffective assistance of counsel was not believable. On appeal by the petitioners, we upheld the habeas court’s ruling in each case, stating that there was insufficient evidence to support a claim of deprivation of a constitutional right, and affirmed the habeas court’s dismissals of the petitions. Williamson v. Commissioner of Correction, 39 Conn. App. 773, 667 A.2d 562 (1995); Davis v. Commissioner of Correction, 39 Conn. App. 735, 667 A.2d 560 (1995). In neither opinion did we take issue with the relief that the petitioners had sought from the habeas court, i.e., the restoration of their appellate rights.

A dismissal of an appeal for failure of a defendant’s counsel to prosecute an appeal with due diligence does not, per se, deprive a defendant of his constitutional rights because a defendant may proceed subsequently with a habeas corpus petition, seeking the opportunity to file a new appeal. State v. Weber, 221 Conn. 84, 86-87, 602 A.2d 963 (1992). This clearly implies that a habeas court has jurisdiction to allow a new appeal, thereby reinstating a defendant’s appellate rights.

By statute, the habeas courts are granted jurisdiction to dispose of cases as “law and justice require”; General Statutes § 52-470 (a); and the rules of practice cannot abridge that right. General Statutes § 52-14. Jurisdiction is defined by statute; Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993); and it is not the rules of practice that confer jurisdiction. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 761, 628 A.2d 1303 (1963). Time constraints that are created by court rule can be waived by courts, such as the limitation on the time for taking appeals, but jurisdiction cannot be expanded or contracted. Id.

A writ of habeas corpus seeks a special and extraordinary remedy for illegal restraint. The remedy may be an absolute discharge, a denial of all relief or a discharge conditioned on an event, such as appellate review or a new trial. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Fredericks v. Reincke, supra, 152 Conn. 506-507. The statutory language “dispose of the case as law and justice require” gives the habeas court the power to conform a remedy to the particular facts. We conclude that a habeas court may choose a remedy of the restoration of appellate rights as a condition of discharge. This conditional discharge is a necessary power when a habeas court, on the basis of the facts, determines that a denial of all relief would be inequitable and that an absolute discharge from custody is equally inequitable. An order for a new trial or an order for appellate review of the first trial for alleged constitutional improprieties may be warranted, failing which the petitioner may be discharged. See Dowd v. United States ex rel Cook, 340 U.S. 206, 209, 71 S. Ct. 262, 95 L. Ed. 215 (1951); see State v. Nash, 149 Conn. 655, 657-58, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962).

The next question we must decide is whether the restoration of appellate rights can arise by stipulation of the parties, without the necessity of any hearing or finding by the habeas court, as to the reason for the lapse of time to assert the right of appeal or as to whether the petitioner deliberately bypassed a direct appeal. We are not aware of any Connecticut case that discusses this issue. State v. Brown, supra, 157 Conn. 398, makes it clear that if there is no finding by a habeas court that a petitioner has not deliberately bypassed a direct appeal or that the denial of an appeal violated his constitutional rights, the court is without authority to restore appellate rights. Unlike in the present case, there was, however, no stipulation by the parties in Brown. Nor was there a stipulation in Vena v. Warden, 154 Conn. 363, 225 A.2d 802 (1966), which also holds that a petitioner in a habeas case must allege and prove the reason for a failure to take a direct appeal.

A stipulated judgment is a contract between the parties and not an adjudication on the merits. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 468 A.2d 1230 (1983), citing Owsiejko v. American Hardware Corp., 137 Conn. 185, 75 A.2d 404 (1950). In the present case, the parties did not stipulate to any facts, but rather stipulated to a remedy, without any determination or agreement that a constitutional deprivation occurred at trial or that the petitioner had not deliberately bypassed a direct appeal, or that he was denied effective assistance of appellate counsel.

The scope of a habeas court’s authority to furnish a remedy as justice requires is limited to the constitutional deprivation found. “ ‘In adjudication of petitions for habeas corpus, the remedies available to a court depend upon the constitutional rights that are being vindicated.’ Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984).” Copas v. Warden, 30 Conn. App. 677, 686, 621 A.2d 1378, on appeal after remand, 234 Conn. 139, 662 A.2d 718 (1995). In ordering the restoration of appellate rights, the habeas court here made no findings on the merits. The question is whether the stipulation can be treated as a substitute for findings by the habeas court.

Although the issue in State v. Robinson, supra, 10 Conn. App. 520, originated from a stipulation entered between the parties, which formed the bases for the order of the habeas court, and although the Appellate Court did not vacate the order on the ground that a constitutional violation must be found before a remedy is furnished, we stated that “[i]t is important to note that in reaching this conclusion [to vacate the order], we are not reviewing the propriety of the trial court’s action in a collateral habeas corpus proceeding not presently before this court.” (Emphasis in original.) Id., 525. We also stated that a habeas court has considerable discretion to frame a remedy when disposing of a case as law and justice require. Id., 523-24. The case, however, does not serve to endorse a habeas court’s power to grant a stipulated remedy without making its own findings of fact to support the stipulation.

The rationale for the holding of Vena v. Warden, supra, 154 Conn. 363, namely, that the determination of whether a prisoner has deliberately bypassed the orderly process of an appeal must be made based on the facts of each case, is that unless such a procedure is followed, a long term prisoner could defer a habeas action until all evidence of conviction has disappeared so that if he is successful on a habeas corpus petition, he would be released regardless of the evidence originally available to prove his guilt. Id., 366; see Fay v. Noia, supra, 372 U.S. 440. Where the state, however, has agreed by stipulation that a petitioner’s right of statutory appeal should be restored, that rationale is diluted.

General Statutes § 52-470 (a) provides that a “habeas court shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment . . . .” The proceeding is “summary” in the sense that it should be heard promptly, without continuances; see Hogewoning v. Hogewoning, 117 Conn. 264, 265, 167 A.2d 813 (1933); but the use of the word also implies that the proceeding should be short, concise and conducted in a prompt and simple manner, without the aid of a jury, or in other respects out of the regular course of the common law. Kredi v. Benson, 1 Conn. App. 511, 514 n.2, 473 A.2d 333 (1984).

A formal stipulation of facts by the parties constitutes a judicial admission and should usually be adopted by the court deciding the case. King v. Spencer, 115 Conn. 201, 161 A. 103 (1932). An admission concedes the truth of some fact so that no evidence need be offered to prove it. State v. Rodriquez, 180 Conn. 382, 396, 429 A.2d 919 (1980). Here, the stipulation does not relate to a fact, but to the conclusion that the defendant’s appellate rights should be restored. In civil cases, conclusoiy admissions are not binding on a court because a court may be justified in deviating from the conclusions if they are unsupported by underlying facts placed in evidence.

In this habeas case, no underlying facts were placed in evidence and no fact in support of the conclusion was conceded or admitted. The state is not like a party in the usual civil case, however, because it exercises the public’s interest in vindicating its criminal laws. State v. Rodriguez, supra, 180 Conn. 397. In performing that role in the present case, the state had to decide in this case whether, in the event a new trial was ordered, after the restoration of the defendant’s appeal rights, it was likely the defendant could be prosecuted again. The state had knowledge of the case, it having already been tried, and knowledge of whether the defendant’s claims arising out of his trial merited review, as well as knowledge of whether the state’s evidence for the original conviction had grown too stale for a second conviction. This knowledge, coupled with the state’s role as a keeper of the public trust in seeing that justice is done, places the state, vis-a-vis the habeas court, in a different position from other parties vis-a-vis a trial court. The habeas court could take these factors into account in deciding whether to accept a conclusory stipulation. The state impliedly agreed with the defendant that he did not knowingly waive rights that would otherwise be appropriate for review by a direct appeal, and the court was entitled to rely on that agreement because of the special status of the state and because § 52-470 (a) contemplates a summary proceeding.

II

THE APPEAL

The defendant claims that the trial court’s failure to inquire of him about a possible conflict of interest of his trial counsel violated his constitutional right to conflict free representation. Although this claim appears to be more appropriate for a habeas proceeding because the constitutional right at issue deals with the trial counsel’s ability to represent his client effectively; see State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); it may be pursued on direct appeal because the defendant is challenging the actions of the trial court, not the actions of his counsel. The defendant alleges that an omission of the trial court deprived him of a fair trial and violated a constitutional right.

The United States and Connecticut constitutions have afforded individuals certain minimum rights in criminal proceedings. The trial court safeguards these rights and ensures that none is violated during a criminal prosecution. State v. Brown, 235 Conn. 502, 527, 668 A.2d 1288 (1995). “The trial judge plays a crucial role in ensuring that a criminal defendant receives a fair trial by an impartial jury, and must be ever vigilant, throughout the course of the trial. . . . In a criminal trial, the judge is more than a mere moderator of the proceedings. It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). . . . State v. Brigandi, [186 Conn. 521, 542, 442 A.2d 927 (1982)]. ...” (Citations omitted; internal quotation marks omitted.) State v. Brown, supra, 235 Conn. 527. As an appellate body, we are responsible for reviewing claims arising from the trial court’s acts or omissions that violate constitutional lights and affect the trial proceedings itself.

The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution* guarantee a defendant the right to effective assistance of counsel in a criminal proceeding. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 2d 158 (1932); State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). “ ‘Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.’ Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).” Festo v. Luckart, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983). The underlying right to conflict free representation is effective assistance of counsel. See Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991).

The importance of safeguarding this right led to the requirement that, under certain conditions, the trial court must explore the possibility of a conflict. Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Festo v. Luckart, supra, 191 Conn. 629. “Moreover, one of the principal safeguards of this right is the rule . . . that [a trial] court must explore the possibility of a conflict . . . when it knows or reasonably should know of a conflict . . . .” (Internal quotation marks ommitted.) Festo v. Luckart, supra, 629; State v. Martin, 201 Conn. 74, 79, 513 A.2d 116 (1986). In order to safeguard these federal and state constitutional rights, the United States Supreme Court and Connecticut courts have placed a duty on a trial court to inquire about a possible conflict in certain circumstances. Its failure to do so can lead to a claimed violation of a constitutional right. Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Martin, supra, 78. Although rooted in the right to effective assistance of counsel, such a claim seeks to address the actions of the trial court during a criminal proceeding, not the actions of counsel.

The difference between a claim of ineffective assistance of counsel brought in a habeas proceeding and a claim involving the failure of a trial court to safeguard a defendant’s right to effective assistance of counsel when questioned in a direct appeal is that the former requires a showing to the habeas court that the defendant in fact received ineffective assistance of counsel, whereas the latter requires an appellate determination that the trial court was alerted to a possible conflict and failed to investigate it. In Stale v. Martin, supra, 201 Conn. 81-83, after concluding on direct appeal, that the trial court was alerted to a possible conflict by the defendant’s attorney and that the trial court failed to investigate the attorney’s claim, the Supreme Court ordered a new trial, but did not determine whether an actual conflict existed.

The actions of a trial court are unlike the trial strategy of counsel. The activities of counsel may not be apparent on the record but the words and rulings of a trial court are readily reviewable from the record itself. When a defendant, therefore, alleges that the trial court’s failure to inquire about a possible conflict of interest led to the deprivation of a constitutional right during the criminal prosecution, the claim is proper for a direct appeal.

The defendant’s claim that the trial court failed to inquire about a possible conflict of interest when it was required to do so was not raised at trial and, therefore, he can prevail only by satisfying all of the conditions established by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), one of which is that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. He has failed to demonstrate that such is the case. Festo v. Luckart, supra, 191 Conn. 629, established a duty on the trial court to “explore the possibility of a conflict when it appoints a single attorney to represent multiple defendants and, in other cases, when it knows or reasonably should know of a conflict.” The trial court here did not appoint the private attorney involved in this case to represent both persons and was not automatically required to inquire into the possibility of a conflict.

The defendant must show that the trial court, on the basis of the facts available to it, should have known that a possible conflict existed before a duty of inquiry would arise. “In the context of representation of multiple codefendants by one attorney, we have defined a conflict of interest as existing where the attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of the other defendant. See Festo v. Luckart, [supra, 191 Conn. 631].” Phillips v. Warden, supra, 220 Conn. 135-36. The defendant does not argue and the record does not show that evidence existed that implicated one defendant and exculpated the other, that motions to sever the trial or for a mistrial were made that would alert the trial court to a possible conflict, that a plea bargain offered to one defendant was conditioned on that defendant’s testifying against the other, that trial counsel emphasized to the jury that certain evidence implicated only one defendant and not the other, that one defendant’s role was subordinate to the other’s, or that a defense for one defendant would have implicated the other. The record does not indicate the existence of any of those circumstances that would have alerted the trial court to a possible conflict of interest.

The defendant argues that his counsel did not adduce evidence, when Bell testified, that would have alerted the jury as to why the case against Bell was taken from its consideration. The test of a possibility of a conflict of interest is whether Bell and the defendant had adverse interests. State v. Martin, supra, 201 Conn. 81. Bell testified for the defendant, and they had no discemable adverse interest at the time.

The defendant also argues that once the charges had been nolled against Bell, the trial court should have been alerted to a possible conflict because Bell’s and the defendant’s interests diverged at that point and because counsel acquiesced in the trial court’s decision not to inform the jury of the disposition of Bell’s case. The defendant essentially argues that had the defendant’s attorney moved for a judgment of acquittal for Bell before Bell testified as a witness, this information would have bolstered Bell’s credibility because the jury would know that Bell had not entered into a plea bargain and had not pleaded guilty. Assumptions do not create a conflict of interest. Furthermore, the jury had been told not to speculate about the absence of Bell as a defendant. Even if the jury disregarded the court’s admonition, the jury could as easily have believed that Bell’s case was dropped because he had no involvement in the crime, which might have helped the defendant.

The defendant is attempting to place himself in a better position than he would have been in had he and Bell been represented by separate counsel. If the defendant were represented by separate counsel, that counsel would have been unable to alter the state’s agreement with Bell. Here, the defendant’s attorney did not inform the trial court of any potential conflict of interest, and the facts imposed no duty on the trial court to inquire of the defendant about the alleged conflict.

The defendant next argues that the trial court denied him a fair trial and due process under the fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution because it failed to declare sua sponte a mistrial. Because the defendant failed to raise this claim at trial, he can prevail only by satisfying all of the conditions established by State v. Golding, supra, 213 Conn. 239-40. “In the absence of any one of [the four Golding requirements], the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240.

The defendant has failed to show that a constitutional violation clearly exists, as required by the third prong of Golding. Id., 239-40. The defendant argues that because the disposition of the codefendant’s case was not explained to the jury and the alleged conflict of interest in the joint representation should have alerted the trial court that the defendant would not receive a fair trial, and therefore, the trial court should have ordered a mistrial, sua sponte.

“The decision as to whether to grant a motion for a mistrial, or to grant a mistrial on the court’s own motion, is one that requires the trial coúrt to exercise its judicial discretion. See State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984). [T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion . . . there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion .... Gori v. United States, 367 U.S. 364, 368-69, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961).” (Internal quotation marks omitted.) State v. Lucci, 25 Conn. App. 334, 341, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991). “It is axiomatic that a mistrial should be granted only if something occurs in the course of the trial that makes it apparent to the court that a party cannot have a fair trial and the whole proceedings are vitiated. State v. Peary, 176 Conn. 170, 172-73, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).” State v. Lucci, supra, 341. On the facts of this case, there was no abuse of discretion because the court did not declare a mistrial.

The judgment of conviction is affirmed.

In this opinion the other judges concurred.

       The following discussion, outside the presence of the jury, took place among Cornelius Kelly, the state’s attorney, William T. Browne, the defendant’s attorney, and the trial court:
      “Mr. Kelly: Your Honor, with respect to David Bell, docket number CR-954534, based upon the information the state has at this point and evidence that is presented, the state enters a nolle against—with respect to Mr. Bell’s case.
      “The Court: All right, that is within your prerogative.
      “Mr. Kelly: We will be proceeding with the matter against Mr. Phidd.
      “Mr. Browne: Preliminarily discussed, at the end of Mr. Phidd’s case, I might ask Mr. Bell’s nolle be made into a dismissal, at least I will make the motion to that effect.
      “The Court: You may make the motion now, he’s been put in jeopardy.
      “Mr. Browne: I asked Neil [the state’s attorney] about that and he would prefer I would not make the motion.
      “The Court: All right, make it at the end of the case, whichever way you want.
      “Mr. Browne: I don’t want to louse up what we talked about.
      “Mr. Kelly: Fine. Once Mr. Phidd’s case is disposed of.
      “Mr. Browne: I would like to use Mr. Bell as a witness.
      “The Court: There is no problem.
      “Mr. Browne: Okay. Just so . . .
      “The Court: You’re not precluded from that.
      “Mr. Browne: Thank you, Judge.”
      On the following day the issue again arose:
      “Mr. Browne: I would not pursue a motion to dismiss until the entire case is completed. Your Honor expressed an opinion since the defendant Bell may be put in jeopardy, motion to dismiss stands at anytime. I don’t want to do anything I didn’t agree to. I do intend to call Mr. Bell as a witness. I don’t know if that creates any problems.
      “The Court: It creates a problem for me. I’ll tell you what the problem is. As of this time he is still, in fact, a defendant.
      “Mr. Browne: Yeah.
      “The Court: Now, in putting on your case, if he testifies—does he testify as a defendant or a person not as a defendant—
      “Mr. Browne: If the case is—If the charges are no longer pending against him, he is no longer in jeopardy. He is just a witness, not a defendant.
      “The Court: Unless there is some strategy I am not aware of, I don’t understand the difference between . . . “Mr. Browne: Mr. Kelly and I almost jokingly said, if a motion to dismiss is granted and Bell got on the stand and said, I did it all and Mr.—did not do nothing.
      “The Court: That is a valid point.
      “Mr. Browne: I would not do anything like that. I wouldn’t do that. Leave it to Mr. Kelly to think of that.
      “The Court: That is a concern.
      “Mr. Kelly: That is a concern I had, but I think . . .
      “Mr. Browne: That’s not going to happen.
      “The Court: Why don’t we indicate that the state nolled it and you just postpone your motion to the end of the case.
      “Mr. Browne: That’s what . . .
      “The Court: Basically what . . .
      “Mr. Browne:—is what we agreed to.”
      The charge against David Bell was dismissed on June 5, 1991.

       The trial court informed the jury as follows: “At this point, this case only concerns the defendant Phidd. You are not to speculate as to the matter—why the defendant Bell’s matter was taken away from your consideration. It should not have any effect on your deliberations of the case against Mr. Phidd.”

       The state made no timely motion to dismiss the appeal on the ground that the appeal was not filed within twenty days of the claimed restoration of the defendant’s appellate rights. Pursuant to LaReau v. Reincke, 158 Conn. 486, 264 A.2d 576 (1969), any right to object on the ground of a late filing was, therefore, waived by tire state.

         When Fredericks v. Reincke, supra, 152 Conn. 501, was decided, Practice Book § 665 provided: “The judge who tried the case, or the court in which it was tried, may, for good cause shown, extend the time provided for filing the appeal or filing any paper or taking any other steps necessary to perfect the appeal, except as otherwise provided in these rules. ... No extension of time for filing of the appeal . . . shall be granted unless the original motion for extension is filed before the time for taking the appeal . . . has expired and any subsequent motion is filed before the expiration of any previous extension.” This rule, therefore, permitted a trial court to grant extensions for an unlimited duration as long as the requests were filed before the expiration of any previous extensions.
      Prior to this rule, a trial court had the authority to grant extensions liberally; Equitable Trust Co. v. Plume, 92 Conn. 649, 652, 103 A. 940 (1918); and to grant them even after the time for filing had expired. General Hospital Society v. New Haven Rendering Co., 79 Conn. 581, 582 n., 65 A. 1065 (1907). DeTeves v. DeTeves, 202 Conn. 292, 520 A.2d 608 (1987), and Practice Book § 4040 (a) are now the controlling authorities for the length of extensions of time that a trial court may allow in which to file appeals. Effective October 1,1982, “§ 3097 (a) [now § 4009] does not provide the trial court with power to extend the time period for filing an appeal more than twenty days from the expiration date of the original appeal period.” DeTeves v. DeTeves, supra, 298.
      It is also important to note that when Fredericks was decided, the rules of practice did not provide a procedure in which a party could address an appellate court for the purpose of requesting permission to file a late appeal. See Practice Book § 4183 (6). Appellate courts, however, sua sponte, can resurrect appellate rights because of their supervisory power and their power to suspend the rules of procedure. State v. Stead, 186 Conn. 222, 228, 440 A.2d 299 (1982).

       Different reasoning might be used for restoration of appellate rights, as opposed to reinstatement of appellate rights, if the defendant’s own conduct was the reason for the failure to file a timely direct appeal; Goeke v. Branch, 514 U.S. 115, 115 S. Ct. 1275, 131 L. Ed. 2d 152 (1995); or if a deficiency in the court system itself cause the failure. Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

       Practice Book § 4040 (a) “does not provide the trial court with power to extend the time period for filing an appeal more than twenty days from the expiration date of the original appeal period.” DeTeves v. DeTeves, supra, 202 Conn. 298.

       Because of the unusual posture of the case, we “conclude that under our supervisory authority ... we would have granted a timely motion to file a late appeal seeking the exercise of that authority”; State v. Stead, supra, 186 Conn. 228; had one been filed.

       General Statutes § 52-470 (b) creates a jurisdictional bar that prevents the Appellate Court from hearing an appeal from a judgment rendered in a habeas corpus proceeding unless, within ten days after judgment, a petition for certification to appeal is filed. Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 672 A.2d 530, cert. granted, 237 Conn. 910, 675 A.2d 456 (1996). The present case is not an appeal from a habeas proceeding and Iovieno has no application.

       We are aware that this conclusion can result in an addition to an appellate docket. Other instances of legislative grants of power to a trial court to add to the docket of the appellate courts exist, however, such as General Statutes § 52-470 (b), allowing a judge before whom a habeas corpus proceeding was tried to certify a question for review and General Statutes § 54-96, allowing a presiding judge to grant permission to the state to take an appeal.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . .

        State v. Leecan, supra, 198 Conn. 517, suggests that if a claim of ineffective assistance of counsel arises at trial, becomes known to the defendant, and the same trial court addresses the issue at trial, the defendant or the state may raise this ineffective assistance of counsel issue on direct appeal as long as a record has been established. “It is preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceedings. A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal. An appeal by the state or the defendant from the determination of the incompetency of counsel question may also be joined with a pending appeal from the judgment of conviction, thus allowing a single resolution on appeal of all the claims of error that have been raised.” Id., 541-42.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF STAMFORD ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (15139)
    O’Connell, Foti and Hennessy, Js.
    Argued April 26
    officially released July 2, 1996

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Daniel M. McCabe, corporation counsel, for the appellant (named plaintiff).

      Victor Perpetua, with whom, on the brief, were Mitchell W. Pearlman, general counsel, and Barbara Housen, commission counsel, for the appellee (defendant).
   PER CURIAM.

The defendant freedom of information commission ordered the plaintiff city of Stamford to release a report to the opposing party in a legal action that was pending in the Superior Court for the judicial district of Stamford-Norwalk.

Stamford appealed to the Superior Court pursuant to General Statutes §§ 4-183 and l-21i (d). The trial court held that the plaintiffs had not sustained their burden of proving the applicability of the statutory exemptions.

Stamford’s central claim on appeal to this court is that the report is exempt from disclosure as a record pertaining to strategy and negotiations with respect to pending claims pursuant to General Statutes § 1-19 (b) (4) and as a record affecting the rights of litigants under the state discovery laws pursuant to General Statutes § l-19b (b) (1).

We have fully reviewed the records and briefs and considered the oral arguments of the parties. Having applied the appropriate standard of review, we conclude that the trial court properly concluded that Stamford did not present sufficient evidence to support either exemption. We also conclude that the record does not support Stamford’s claims that the freedom of information commission improperly conducted the hearing.

The judgment is affirmed.

       The appeal was brought in the name of both the city of Stamford and the board of finance of the city of Stamford. For convenience, we refer to both appellants as Stamford.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. RICKY SMITH
    (14398)
    Spear, Hennessy and Freedman Js.
    Argued January 16
    officially released July 2, 1996

      Elizabeth A. Gallagher, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Ricky Smith, appeals from the judgment of conviction, after a jury trial, of intentional manslaughter in violation of General Statutes § 53a-55 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly (1) denied his motion to suppress his statement to police, (2) admitted evidence of the exercise of his right to remain silent, (3) admitted evidence pertaining to his uncharged misconduct, (4) denied his motion to suppress testimony regarding a photographic identification and (5) restricted his cross-examination of a witness regarding the issue of the witness’ alcoholism and substance abuse. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In April, 1992, the defendant and several others were involved in a drug sale operation in an area known as the “Mud Hole” in New Haven. The defendant did not conduct the actual delivery of the drugs, but served as a guard to protect against robbery. On April 13,1992, the victim, Antoine Wright, walked through the Mud Hole area, confronted an associate of the defendant and yelled something about another group that sold narcotics taking over. The defendant, who was nearby, consulted with another associate, Troy Butler, and then approached the victim. The defendant was carrying a .40 caliber semiautomatic gun, and Butler was carrying a .38 caliber gun. As they approached the victim, he began to run. The defendant, Butler and several others gave chase while firing their weapons. The victim died as a result of gunshots fired from a .40 caliber gun. Shortly after the shooting, the defendant stated: “I got him.” Two days later, the defendant went to the police station and gave a statement concerning the shooting in which he stated that he had been at the scene of the shooting and had fired a gun. Additional facts will be set forth herein as necessary.

I

The defendant first claims that the trial court improperly denied his motion to suppress his statement to the police. He asserts that he did not voluntarily give the statement and that the police failed to advise him adequately of his Miranda rights. We disagree.

At a suppression hearing, the defendant presented evidence that he was intoxicated when he went to the police station and, as a result, had difficulty understanding the officers and did not appreciate the gravity of the situation. He claimed that under those circumstances, his statement was involuntary. He also claimed that because he did not feel free to leave the police station and thought that he was under arrest, he was in custody and the police should have read him his Miranda warnings. Finally, he claimed that if he did receive the Miranda warnings, his waiver of those rights was invalid because he was intoxicated. The state presented evidence that the defendant had gone to the police station voluntarily, that the police did not arrest him, that the defendant was free to leave at any time and that the defendant left the police station without resistance after he terminated the interview. The state also presented evidence that, before the police took any information from him, they advised him of his Miranda rights and had him read a statement of those rights. The state also proffered evidence that the defendant understood his rights, signed the bottom of a Miranda waiver form and initialed each individual Miranda right. A detective who took the defendant’s statement testified that he had not observed anything that would indicate that the defendant was intoxicated. Finally, the state’s evidence established that the defendant took ten or fifteen minutes to review his statement, to initial each page and to sign it at the end.

The trial court found that the defendant was not intoxicated when he gave the statement, that he was capable and competent to give the statement and that he gave it “freely, willingly, and voluntarily.” The trial court also found that the defendant was not in custody and that “even if by some stretch of the imagination one could say he was in custody . . . the Miranda warnings were given and they were given properly and he then thereafter willingly, voluntarily and understandingly waived his . . . constitutional rights and gave the statement.”

We first address whether the statement was voluntary. “[T]he use of an involuntary confession in a criminal trial is a violation of due process. . . . The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence. . . . [Our Supreme Court has] stated that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... The ultimate test remains . . . [i]s the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. . . . The determination, by the trial court, whether a confession is voluntary must be grounded upon a consideration of the circumstances surrounding it. . . .

“This determination of voluntariness and admissibility, in the first instance, is a question of fact for the trial court to resolve in the exercise of a legal discretion in accordance with constitutional standards of due process. . . . This, of course, includes decisions on questions of credibility presented to the trial court. . . . Though the question is ultimately factual, our usual deference to fact-finding by the trial court is qualified on the question of voluntariness by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . .

“[I]n State v. Gonzalez, 206 Conn. 213, 221-22, 537 A.2d 460 (1988), we noted, quoting from State v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985), that: The [traditional] test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined. The ultimate question of whether a defendant’s will has been overborne, thus resulting in an involuntary statement in a particular case, involves, as noted, an assessment of the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. . . . Some of those also taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. Madera, 210 Conn. 22, 39-41, 554 A.2d 263 (1989).

A review of the transcript clearly reveals substantial evidence to support the trial court’s finding that the defendant gave the statement voluntarily. The state points to the testimony of Detective Joseph Greene, who took the defendant’s statement. Greene’s testimony established the following. The defendant called the police station regarding the death of Antoine Wright, stating that he wanted to tell his side of the story. The defendant then went to the police station by his own means and cooperated with the police. The defendant did not appear intoxicated or under the influence of drugs, and the police had no problems communicating with him. The police did not place the defendant under arrest, and he was free to leave at any time. When the defendant requested a lawyer, the police terminated the interview and the defendant left the police station. The evidence further established that the defendant was twenty-two years old at the time of the statement, was fairly intelligent and had completed the twelfth grade. Finally, no evidence exists that the police deprived the defendant of food or sleep.

The defendant next challenges the admissibility of his statement on the ground that he was in custody during the questioning and, therefore, should have been read his Miranda warnings. He further contends that if he did receive the warnings and did waive them, the waiver was invalid because he was intoxicated. We need not determine whether the trial court properly found that the defendant was in custody because we dispose of the defendant’s claim on the basis that the trial court’s findings that the police gave the defendant his Miranda warnings and that the defendant validly waived those rights were not clearly erroneous.

“To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant vohmtarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992). A trial court’s findings will be reversed only if they are clearly erroneous. Id., 687.

A review of the evidence in this case reveals that substantial evidence exists to support the trial court’s findings that the defendant was not intoxicated, that the police read the defendant his Miranda warnings, and that the defendant knowingly, intelligently and voluntarily initialed and signed a waiver of rights form.

After a thorough and scrupulous review of the record, we conclude that the trial court’s findings that the defendant made the statement voluntarily, that the police read him his Miranda warnings and that the defendant knowingly, intelligently and voluntarily waived his Miranda rights were not clearly erroneous.

II

The defendant next claims that the trial court improperly admitted evidence of the exercise of his right to remain silent. The following facts are pertinent to this issue. The defendant went to the police station to give a statement concerning the shooting, and Greene interviewed him concerning the incident. After answering a number of questions the defendant requested an attorney. The interview then ended. At trial, Greene testified that he wanted to ask the defendant more questions, but that the interview ended “[b]ecause Mr. Smith did not want to be further interviewed regarding the shooting.” The trial court then instructed the jury that the defendant voluntarily gave the statement and had a right to terminate the interview at any time. The trial court also stated that the jury should draw no adverse inference because he elected to terminate the interview and that the evidence was proffered “just to show what the investigative efforts were by the police and the sequence of events that took place.” The defendant claims that the admission of the testimony concerning his desire to terminate the interview violated his due process rights pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The state argues that the evidence was proper to show the investigative efforts of the police and the sequence of events.

In Doyle v. Ohio, supra, 426 U.S. 619, the United States Supreme Court held that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” (Emphasis added.) Thus, Doyle is not implicated if the evidence is not presented for impeachment purposes. States v. Hull, 210 Conn. 481, 490-91, 556 A.2d 154 (1989); State v. Casey, 201 Conn. 174, 182-86, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 495-99, 418 A.2d 870, vacated and remanded on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on appeal after remand, 179 Conn. 761, 409 A.2d 149 (1979). The state may present evidence “to show the investigative effort made by the police and the sequence of events as they unfolded . . . .” State v. Moye, supra, 499. In State v. Hull, supra, 491, our Supreme Court noted that testimony concerning investigative effort that refers to a defendant’s postarrest silence is constitutionally permissible “where only one police officer briefly describe[s] what had transpired when [the] defendant was interviewed at the police station.”

In this case, the record clearly reveals that the questions regarding the termination of the interview did not seek to impeach the defendant and were focused on the investigative efforts made by the police and the sequence of events. Furthermore, only one police officer testified concerning what had taken place at the police station. No Doyle violation exists on this record.

Ill

The defendant next claims that the trial court improperly admitted evidence of uncharged misconduct. Fred Randall, a witness at the trial, testified that the defendant was involved in a drug sale operation and that his role was to protect the group from robbery. The trial court twice instructed the jurors that if they chose to give this evidence any weight, they should use the evidence to show only that the defendant had a motive to be involved in the shooting. The defendant claims that the trial court improperly allowed this testimony because it was based wholly on speculation and was therefore irrelevant. The defendant further claims that because the state introduced no relevant evidence of prior misconduct, the prejudicial effect of the speculation testimony necessarily outweighed its probative value. The state contends that Randall’s testimony is based on personal knowledge, is relevant to show motive and has sufficient probative value to outweigh any prejudicial impact.

“[T]here are two components to relevant evidence: materiality and probative value. . . . [Ejvidence is relevant if it has a tendency to establish the existence of a material fact. . . State v. Wieler, 35 Conn. App. 566, 576-77, 645 A.2d 1032 (1994), aff'd, 233 Conn. 552, 660 A.2d 740 (1995). Evidence of motive is a highly relevant factor for assessing the guilt or innocence of a defendant. State v. Murdick, 23 Conn. App. 692, 696, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991).” (Citations omitted; internal quotation marks omitted.) State v. Mozell, 40 Conn. App. 47, 51, 668 A.2d 1340 (1996). “[E]vidence otherwise relevant and material is not rendered inadmissible because it tends to prove that an accused committed other crimes. See State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989). ‘It is widely recognized that other misconduct evidence is admissible to prove motive, as an exception to the general prohibition against such evidence.’ Id. Nevertheless, prior to ruling on its admissibility the trial court must still consider whether the prejudicial effect of such evidence outweighs its probative value. State v. Sierra, 213 Conn. 422, 434-35, 568 A.2d 448 (1990). We recognize that this balancing process is an inherently difficult one, and will reverse the trial court’s decision only when it is manifest that an abuse of discretion or an injustice has occurred. Id.; State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).” State v. Marra, 215 Conn. 716, 738, 579 A.2d 9 (1990).

While Randall never saw the defendant sell drugs or avert an attempted robbery, his testimony regarding the defendant’s involvement in a drug operation was based on his observations and personal knowledge. Randall testified on the basis of his personal knowledge that the defendant was involved in drug activity in the Mud Hole area with at least three other people. Randall also offered testimony that based on his observations of the activity in the Mud Hole area that the defendant was a “big boy” or “lieutenant” in the operation. This evidence was highly probative of the defendant’s motive and a review of the record reveals that its probative value outweighed its prejudicial effect. Furthermore, the trial court diminished the prejudicial impact of the evidence by instructing the jury that it could use the evidence only to prove a motive. See State v. Sheets, 40 Conn. App. 328, 334, 671 A.2d 366 (1996). We conclude that the trial court did not abuse it discretion.

IV

The defendant next claims that the trial court improperly denied the defendant’s motion to suppress identification testimony. The state presented the following evidence at the suppression hearing. On the evening of the shooting, Detective Gilbert Burton went to the home of Mary Reeves, who he believed had been at the scene of the shooting. While there, Reeves told Burton that she had seen people chasing a young man down the street. On the next evening, Burton went to Reeves’ home with ten photographs and asked her if she recognized anyone from the scene of the shooting. Reeves picked out two photographs, one of the defendant and one of Butler. Burton then asked her whether she had seen those two individuals chasing the victim down the street. She answered yes.

The defendant argues that Burton impermissibly suggested to Reeves that the defendant had been chasing the victim by asking her whether the two individuals whom she had identified were chasing the victim. He claims that because Burton’s first question merely asked whether she recognized anyone from the scene without implying involvement, Burton’s second question was suggestive because it implied involvement after the defendant’s photograph had already been singled out. The state contends that Burton’s second question was not impermissibly suggestive when considered in context because the question sought only to confirm that Reeves identified them as the people she had seen chasing the victim the day before. The trial court agreed with the state and found that the procedure was not impermissibly suggestive because Reeves, not Burton, had originally mentioned that people were chasing the victim and because Reeves testified that she identified the photographs of the people she saw running.

“The decision of whether a pretrial identification procedure violates a defendant’s due process rights is an ad hoc determination and involves a two-pronged test. State v. White, 229 Conn. 125, 161, 640 A.2d 572 (1994), quoting State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992); see also State v. Arena, 33 Conn. App. 468, 473, 636 A.2d 398 (1994). The first prong of the test is whether the identification procedure was unnecessarily suggestive. ‘An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.’ State v. White, supra, 161-62; State v. Arena, supra, 473-74, quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). If the trial court finds the procedure unnecessarily suggestive, it proceeds to the second prong to inquire whether, considering the totality of the circumstances, the identification was nevertheless reliable. State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). ‘The defendant bears the burden of proving both that the identification procedure was unnecessarily suggestive and that the resulting identification was unreliable.’ State v. White, supra, 162; State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991).” State v. Owens, 38 Conn. App. 801, 803-804, 663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d 609 (1995).

The defendant’s argument relies on the assertion that Burton’s question suggested to Reeves that the defendant was chasing the victim and, therefore, was involved in the incident. The evidence adduced at the suppression hearing does not support that conclusion. The evidence reveals that it was Reeves, not Burton, who first mentioned that people were chasing the victim. Furthermore, the trial court could reasonably have concluded that Reeves selected the defendant’s photograph in that context.

The defendant relies on State v. Austin, 195 Conn. 496, 488 A.2d 1250 (1985), for the proposition that police comment can make an identification procedure impermissibly suggestive. State v. Austin, supra, 501, focused on whether police comment somehow heightened a witness’ interest in an array. In this case, Burton’s comments sought only to confirm what the witness had already told him and did nothing to influence her choice. Burton’s question was not suggestive and did not give rise to a substantial likelihood of irreparable misidentification.

Therefore, we conclude that the trial court did not improperly find that the defendant failed to prove that the identification procedure was impermissibly suggestive.

V

The defendant’s final claim is that the trial court deprived him of his right to confrontation by limiting his questioning of a witness. The following facts are relevant to the disposition of this claim. The defendant attempted to question Reeves concerning whether she had been treated for alcohol abuse and whether that illness or the effects of withdrawal affected her ability to perceive, to recollect or to relate relevant facts. The defendant pursued this line of inquiry during both the identification suppression hearing and trial.* ***** The trial court restricted the defendant’s questions to Reeves’ condition on the date of the shooting, the date of her photographic identification of the defendant, the date of her testimony and reasonable time periods before and after those dates. The trial court stated that the fact that Reeves received treatment seven months after the incident, without more, is inadmissible.

The defendant claims that because Reeves’ alcohol abuse treatment did not occur within the time frame set by the trial court, the restriction violated his right to confrontation by preventing him from laying the groundwork necessary for a fair judicial determination on the issue of obtaining evidence of Reeves’ mental condition, specifically her ability to recall the events of April 13, 1992. The state contends that the trial court properly limited the questioning to the relevant time periods and that the defendant failed to lay the foundation necessary to make those events that fell within the proscribed time periods relevant.

The defendant relies on State v. D’Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990). In State v. DAmbrosio, supra, 54-55, the defendant claimed that the trial court had violated his right of confrontation by denying him access to a witness’ psychiatric records, which he claimed were probative of the witness’ ability to perceive and to recall facts. Our Supreme Court concluded that a defendant must be allowed to attempt to show that a reasonable ground exists to believe that the lack of the records would likely impair his right to impeach the witness. Id., 58. If the defendant meets that preliminary showing, the trial court must examine the records to determine whether they are in fact “probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences.” Id. Similarly, evidence of a witness’ mental condition may be admitted if the defendant establishes that a relationship exists between the condition and the defendant’s capacity to observe, remember and narrate the relevant facts. State v. Cardinal, 194 Conn. 114, 118-19, 478 A.2d 610 (1984). Absent such a showing, evidence of the condition and treatment may be excluded as irrelevant. Id.

In this case, the defendant did not seek records, but sought to elicit evidence that Reeves had been hospitalized for alcohol abuse treatment and that her alcohol dependency may have impaired her perception in memory. The trial court clearly allowed the defendant to cross-examine Reeves concerning her ability to recollect relevant facts. Instead of pursuing this line of inquiry, the defendant asked Reeves whether she had been hospitalized and whether she was an alcoholic. The defendant improperly focused on the hospitalization without establishing that Reeves had difficulty recalling events. Hospitalization for alcohol treatment does not itself establish a deficient memory. Similarly, the status of being an alcoholic, without more, does not open witnesses to cross-examination concerning their ability to perceive, recollect or narrate relevant facts. See State v. Joyner, 225 Conn. 450, 479, 625 A.2d 791 (1993). The trial court afforded the defendant every opportunity to question Reeves regarding her condition and her memory during each relevant time period. See id. In fact, the defendant twice asked Reeves, without objection, whether her abstinence from alcohol on April 13, 1992, affected her state of mind. Reeves responded no to both questions. Reeves further testified that she had not consumed alcohol during the relevant time periods. We conclude that the trial court did not improperly limit the defendant’s cross-examination of Reeves.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       During the direct examination of Randall, the state elicited the following testimony that establishes the defendant’s involvement in a drug operation:
      “Q. During the time period immediately prior to the shooting were you aware from your own personal knowledge whether or not Mr. Smith, Ricky Smith, was involved in any sort of drug activity in the area of Mud Hole?
      “A. Yes.
      “Q. Was he, Mr. Smith, associated with any particular brand of drug that was being sold in that area?
      “A. Double Staple.
      “Q. Was he at that time working with other people in that area to distribute this narcotic Double Staple?
      “A. Yes.
      “Q. Who was he working with?
      “A. T-Dog, Cecil and Cheese.”
      Randall also testified as follows:
      “Q. At the time when you would see, again immediately prior to the shooting, we are talking about that period of time, when you would see that type of narcotic, Double Staple, would Ricky and Troy, Cheese and Cecil be in the apartment?
      “A. Yes.”

       During the direct examination of Randall, the state elicited the following testimony that establishes the defendant’s role in the drug operation:
      “Q. Let me ask you this. You did tell us that Cecil was the one who was pretty much running the operation Double Staple. What if anything did Troy Butler and Ricky Smith have to do with that operation?
      “A. They were just his Home Boys.
      “Q. Well, were Ricky Smith and Troy Butler, were they actually involved themselves in hand to hand narcotics sales in the area of Mud Hole?
      “A. No, they didn’t handle it themselves.
      “Q. Who would handle that end of it, of the operation?
      “A. Most of the time when they were selling out of Luke’s house, Cheese was selling it.
      “Q. If Troy Butler and Ricky Smith weren’t the head of the operation, and if they were not actually involved in selling it because Cheese was, what did Ricky Smith, what did Ricky Smith and Troy Butler have to do with the sales of drugs in that area?
      “A. I don’t know what you mean.
      “Q. Well, what was their position in that particular operation? What was their function?
      “A. They were the big boys. They were the lieutenants. Call them the lieutenants.
      “Q. Well, if people came into the area—I will withdraw that. During the time prior to the shooting had you ever seen other people who did not regularly sell drugs in that area come to that area to sell drugs?
      “A. No.
      “Q: You didn’t see that happen?
      “A. No.
      “Q. Would Troy Butler or Ricky Smith allow the people on the side of Pepper’s to sell their drugs on the side of Sonny and Viv’s?
      “A. No.
      “Q. What would they do to stop it?
      “A. Whatever they had to, I guess.
      “Q. Can you tell the court how you know that Ricky Smith and Troy Butler were so-called lieutenants in this drug operation, how do you know that?
      “A. How do I know they were lieutenants?
      “Q. Yes.
      “A. They were enforcers.
      “Q. Did you ever hear any conversations between Ricky Smith, Troy Butler, Cecil and Cheese, did you ever hear them discussing those sorts of matters?
      “A. No, I never heard any of them say that Cecil was the big boss and Troy was the lieutenant or Suave [the defendant] was the lieutenant. It was just—you just look at something and you know that is how it is.
      “Q. So that was based on the type of activity you saw going on in the area of the Mud Hole.
      “A. Yes.”

       Reeves testified as follows on cross-examination at the suppression hearing:
      “Q. Did you pick out Rick Smith’s, that triple D state’s exhibit—withdrawn. Would it be fair to say that you associated that other photograph, the photograph of Ricky Smith, state’s exhibit triple D, because you associated it with the first, photograph, state’s exhibit double X as someone else you saw at the scene?
      “A. I saw those two running. I picked out those two pictures.
      “Q. There is no doubt in your mind, is there, that you saw state’s exhibit triple D, that person in that photograph, running that day?
      “A. Those two people I saw running. Those two people. I picked those two pictures out.”

       The defendant also relies on State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). That case is not relevant to our inquiry because in that case the parties did not dispute that the procedure was impermissibly suggestive, but argued the case under the second prong—totality of the circumstances. Id.

       At the suppression hearing the following testimony colloquy occurred:
      “Q. Ms. Reeves, is it true that you were treated for alcoholism before and after April 13, 1992?
      “A. Yes.
      “The State: I am going to object.
      “The Court: Objection sustained.
      “Defense Counsel: Your Honor, I do claim the question.
      “The Court: Objection sustained to the question, were you treated before and after for alcoholism.
      “Q. Ms. Reeves, did you go to detox for alcoholism in November of 1992?
      “The State: I am going to object.
      “The Court: Objection sustained.
      “Q. Ms. Reeves, at the time of the incident, April 13, 1992, were you an alcoholic?
      “The State: I am going to object to the form of the question.
      “The Court: Objection sustained.
      “Q. Ms. Reeves, at the time of the incident, April 13, 1992, had you had any alcohol to drink that day?
      “A. No, I had not.
      “Q. In not drinking any alcohol that day would your failure to consume alcohol affect your ability to know or comprehend the things around you?
      “A. No, they would not.
      “Q. Have you ever gone through the physical symptom known as delirium tremens?
      “The State: I am going to object.
      “The Court: Objection sustained.
      “Q. On April 13, 1992, did you have any type of chemical or alcohol dependency?
      “A. No, I did not.”
      After this line of questioning the court stated the following: “Sir, the fact that the lady may or may not have had to have some type of treatment for some alcohol problem seven months after the date of the homicide which she apparently is a witness to, in some respect anyway, in the opinion of this court, does not bear on her ability to see, hear and comprehend on April 13, 1992, or on April 14 when she made the photo identification. That is the reason I have sustained the objection to that question which dealt with something that happened in November. Objection was sustained.”

       At trial the defense counsel questioned Reeves as follows:
      “Q. You testified that you had not been drinking on the day of April 13, 1992, is that correct?
      “A. That’s correct.
      “Q. Now isn’t true that as of November, 1992, you had checked yourself into St. Raphael’s Hospital because you were having tremors and withdrawals from alcohol?
      “The State: I am going to object.
      “The Court: Objection sustained. The jury may step into your room, please.”
      After some discussion the court ruled as follows:
      “The Court: Yes, but look, a good place to start, sir, is the date in question, the thirteenth and the fourteenth. And today because she is testifying here today and her ability to recall today is certainly relevant. That’s a good place to start. Not to launch into seven months after the incident in question and about a year and a half before today’s date to throw into the teeth of this witness in the presence of the jury what amounts to a claim that she had or was suffering from the DTs and she had to go to a hospital about it. Even if it were true, it is improper. You don’t take witnesses and put them on the stand and throw mud at them, sir, which is what you are doing. And if it keeps up, I’m going to hold you in contempt.
      “Now you have a right to ask her all the questions you want about what her condition was on the thirteenth or fourteenth and within a reasonable time prior to this and thereafter. A reasonable time does not mean you can jump to a date seven months later and say, ‘Didn’t you check yourself into a hospital on that date for such and such a condition?’ You can also ask her about her condition today. You can do that, and within a reasonable time prior to today. Reasonable time. I mean a matter of days, week or two. Not six months ago, not a year ago. Especially into matters to which there is some privilege attached.”
      The questioning then resumed as follows:
      “Q. On April 13, 1992, were you an alcoholic?
      “The State: I am going to object to that.
      “The Court: The objection is sustained.
      “Q. Ms. Reeves, on April 13 of 1992 would you if you didn’t take a drink have had a problem in dealing with your own state of mind? “A. No.
      “Q. Today as you sit here are you enrolled in any out-patient climes of any kind?
      “A. No.”

       See footnotes 6 and 7.

       The defendant also claims that he “attempted to but was prevented from making the threshold showing that the records would reveal that, at the relevant time, Reeves’ alcohol dependency problem, for which she sought treatment on several occasions, may have impaired her perception in memory.” A review of the transcript reveals that the defendant never presented any records for admission nor requested that the trial court give him access to any records. Rather, the defendant sought to cross-examine the defendant concerning her alleged hospitalizations for alcohol treatment because he believed that her history of alcohol and substance abuse affected her ability to know and recall at trial what happened on April 13, 1992.