author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. ROBERT LEPRI
    (AC 18769)
    Lavery, Landau and Hennessy, Js.
    Argued October 25, 1999
    officially released January 18, 2000

      Gary A. Mastronardi, for the appellant (defendant).

      Ellen A. Jawitz, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Robert Lepri, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (2). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of his uncharged misconduct to show a common scheme or plan, (2) the court improperly refused to instruct the jury that consensual tape recording of private conversations is a lawful investigatory technique and (3) the prosecutor’s comments during rebuttal argument deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On March 22, 1997, J, the victim, was with his friend D, at D’s house. Both were twelve year's old at the time. D and J decided to go roller-skating, and D called the defendant, whom he had known for approximately three years, to ask if he would pick them up and transport them to the skating rink. When they arrived at the rink, D got out of the car and the defendant asked J to go with him to the defendant’s house. J agreed. Sometime after arriving at his home, the defendant played a pornographic video on a big screen television depicting nude men and women having sex. The defendant told J to pull down his pants and, when J complied, performed fellatio on him. Following that act, J put his pants back on and went with the defendant to his car and was handed $10 and told not to tell anyone. The defendant then took J to the skating rink.

A few days later, J told his mother about the incident, and she told J’s probation officer. During the ensuing police investigation in April, 1997, D told Detective Karin Ceratti of the Waterbury police department that about one week before the interview, the defendant had picked him up, brought him to the defendant’s house, played a pornographic videotape and attempted to assault him sexually. D stated that the defendant had not assaulted him in the past because he brought a new friend to the house whenever he was there. D also said that whenever he was with a young Puerto Rican friend about J’s age, the defendant would ask him whether that person would let him “suck his thing.” In addition, the defendant would give D money whenever he needed it.

The defendant was arrested by the Waterbury police and charged in a substitute information with two counts of sexual assault in the first degree and two counts of risk of injury to a child. All of the charges were based on the March 22, 1997 incident involving the defendant and J. A jury found the defendant guilty of one count of sexual assault in the first degree and one count of risk of injury to a child. This appeal followed. Other facts will be discussed where relevant to issues in this case.

I

In his first claim, the defendant asserts that the trial court improperly exercised its discretion and violated his due process rights in permitting the state to offer evidence of his uncharged misconduct to show a common plan or scheme. We disagree.

During the state’s case-in-chief, D testified to the following: At some point prior to April 15, 1997, D was at the defendant’s house alone with the defendant and sitting on a couch in his living room. There was a big screen television in the room, and the defendant played a video of men and women having sex. When the defendant attempted to touch D’s private parts, D pushed him away and told the defendant to take him home. The defendant complied.

During cross-examination of D, defense counsel elicited that D was picked up by the defendant and taken to the house where the defendant asked him whether he let people touch him for money and whether D would touch the defendant’s private parts for money. The defendant also attempted to place his hands in D’s pants.

Immediately following the state’s direct examination of D regarding the attempted assault, the court instructed the jurors that they were “expressly prohibited from using this evidence as evidence of bad character of the defendant or as evidence of a tendency to commit criminal acts,” but that they might, if they found the evidence credible, use it for the “sole and limited purpose of assisting [them] in determining common scheme and design and for no other purpose.” This instruction was followed by a curative instruction during the final charge in greater detail.* ***

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. ... On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 60-61, 644 A.2d 887 (1994).

“The admission of evidence of prior uncharged misconduct is within the discretion of the trial court. The trial court’s discretionary determination that the probative value of such evidence outweighs its prejudicial effect will be disturbed on appeal only for a manifest abuse of discretion. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. . . . We are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes.” (Citations omitted; internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 716, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999); see State v. Hauck, 172 Conn. 140, 145, 374 A.2d 150 (1976).

In a threshold claim, the defendant asserts that the acts of uncharged misconduct occurred subsequent in time to the act for which the defendant was on trial and, thus, it was an inappropriate exercise of the court’s discretion to admit this evidence. Kulmac and its progeny frequently refer to prior uncharged misconduct. In Connecticut, as in almost all other jurisdictions, “[e]vidence of crimes subsequent to the crime charged are also admissible for the same purposes as those committed prior to the charge.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.3.2, p. 233.

Our Supreme Court, while recognizing that evidence of guilt of other crimes is inadmissible to prove that the defendant is guilty of the crime charged, has upheld the admission of subsequent misconduct by a defendant as relevant to the issue of identity. State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985). In Smith, the defendant was involved in an altercation at a bar- where he displayed a weapon similar to the one described by the victim of an earlier sexual assault with which the defendant was charged. Id., 156-58. In State v. Payne, 219 Conn. 93, 98-106, 591 A.2d 1246 (1991), the court considered whether the trial court’s admission of evidence of the defendant’s subsequent criminal activity to prove identity was appropriate. To uphold the admissibility of the evidence, the court had to determine that it was relevant and that its probative value outweighed its prejudicial effect. Id., 98. Without making any distinction between prior uncharged misconduct and subsequent uncharged misconduct, the court held that the evidence was not relevant and, therefore, should not have been admitted. Id., 102. The important factor, therefore, in admitting evidence of uncharged misconduct is its relevancy and prejudicial effect. Thus, the defendant’s claim that the evidence admitted in this case related to a subsequent act of uncharged misconduct and was therefore improperly admitted is of no merit.

The defendant claims that the trial court abused its discretion by improperly admitting evidence under the uncharged misconduct doctrine. Prior to trial, the state filed written notice that it intended to adduce evidence of uncharged misconduct. At trial, the state claimed that the evidence of uncharged misconduct should be admitted to show a common scheme or plan. “Evidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness. ” State v. Esposito, 192 Conn. 166, 169-70, 471 A.2d 949 (1984).

In this case, the defendant on two separate occasions, within weeks of one another, drove a victim to his house, had the victim sit on the couch and played a pornographic videotape on a big screen television. In each incident, the defendant appeared more interested in touching the victims than being touched. As to D, the defendant attempted to put his hands down D’s pants; in J’s case, the defendant pulled down J’s pants and then performed fellatio on him. Both cases involved money. The victims were of a similar age and both were Puerto Rican.

The trial court concluded, and the state argues on appeal, that the evidence of the prior uncharged misconduct was properly admitted to show a common scheme or plan. We agree. The first part of the two-pronged test determining admissibility of uncharged misconduct evidence requires a showing that the evidence is material and relevant to show a common scheme. State v. Kulmac, supra, 230 Conn. 61. This has been demonstrated by the similarities of age, ethnicity and the characteristics of the assaults. The defendant’s actions in driving the victims to his home, seating them on the couch, playing a pornographic video on a big screen television, the defendant’s desire to “touch” the victims’ penises, and the use of money all form a distinctive pattern to meet the requirements of Kulmac.

The defendant further claims that the evidence should have been excluded because its prejudicial effect outweighed its probative value. We do not agree. Because D’s testimony was highly probative of the defendant’s common scheme of sexual misconduct, the court did not abuse its discretion by finding that the probative value of the evidence outweighed its prejudicial effect. The defendant’s theory of defense, essentially, was that J lied about the assault because he was in trouble with his probation officer and needed an excuse for not obeying his condition of probation. Thus, the evidence of the defendant’s uncharged sexual misconduct with D was probative of whether J had fabricated his story or whether he was telling the truth and had been sexually assaulted by the defendant as part of a common scheme or plan.

In contrast, the prejudicial effect of the evidence was minimal because the court, in its limiting jury instructions, warned the jury to use D’s testimony only as evidence of a course of criminal conduct by the defendant and not as evidence of the defendant’s criminal disposition. Accordingly, the court did not abuse its discretion in admitting the evidence of uncharged misconduct.

II

The defendant next claims that the court improperly refused to instruct the jury that the consensual tape recording of private conversations is a lawful investigatory technique in Connecticut. After hearing argument from counsel, the court declined to give the requested charge, ruling: “There is no wiretapping evidence in this case. With regard to that request to charge . . . there is no evidence in this case obtained by any wiretapping. Thus, such evidence is not a legal issue in the case for jury consideration and no jury instruction is necessary. . . . [I]n this particular case, Detective Cerutti, on cross-examination, testified that no wiretaps were conducted as an investigatory tool and expressed an opinion that it would be illegal to conduct them. [The court is] uncertain of the basis for that opinion, but [we] point out that both [J] and [D] are minors and the police certainly in this state would not be able to use these minors in a wiretap procedure without parental permission. For all these reasons, I decline to give the charge as requested.”

The road upon which we must tread is clear and well laid out. “A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 789, 601 A.2d 521 (1992). The trial court must present “instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and ... its instructions [must be] suited to their guidance in the determination of those issues.” (Internal quotation marks omitted.) Id., 789-90. “ ‘The ultimate test of a court’s instructions is whether taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.’ ” State v. Villafane, 45 Conn. App. 110, 115, 694 A.2d 802, cert. denied, 241 Conn. 926, 697 A.2d 362 (1997).

The facts relevant to our analysis of this issue are not disputed. During cross-examination, Detective Cerutti testified that D had told her that he and the defendant would speak on the telephone from time to time. Cerutti testified that she had decided not to ask D to record one of the telephone conversations, believing that D would be uncooperative. She also testified that she had never used a telephone tap where a young witness was involved. After further questioning by defense counsel as to her reasons for not requesting that J come to the police department to make a call to the defendant, she replied, “I did think of it, but it’s really not legal to do that,” reasoning, “because then you are going to ask [J] to act on the part of the police department.”

The defendant maintains that Cerutti’s testimony about the legality of consensual monitoring provided sufficient basis to support the requested charge. Specifically, he posits that Cerutti testified that the consensual tape recording of a conversation between D or J and the defendant would have been illegal and, therefore, the requested instruction was warranted. The state asserts that the defendant mischaracterizes Cerutti’s testimony. The defense counsel asked her why she did not have J make the telephone connection from the police station, and Cerutti responded that it would be illegal. Thus, she offered an opinion on the legality of having J make the call from the police station and not on the legality of consensual tape recording in general.

There is no question that the defendant’s request to charge correctly stated that the tape recording of a telephone conversation with the consent of one of the parties to a conversation is a lawful investigatory technique. See State v. Tomasko, 238 Conn. 253, 272, 681 A.2d 922 (1996). A trial court, however, need not give a requested charge solely because it is a correct statement of the law; it must also be relevant and not be confusing to the jury. Here, there was no wiretap evidence admitted at trial. We fail to ascertain any relevance to Cerutti’s testimony that she believed it would be illegal for her to ask J to place a call to the defendant from the police station. There was no reason to believe that the defendant would either speak to J or make an incriminating statement. We also note that the proposed instruction, not relevant to the issue at trial, may well have confused the jury. See State v. Thomas, 50 Conn. App. 369, 382, 717 A.2d 828, cert. granted on other grounds, 247 Conn. 935, 722 A.2d 1217 (1998). The court appropriately declined to give the requested charge.

Ill

The defendant’s final claim is that, during the state’s rebuttal argument, the prosecutor “resorted to a vicious personal attack” on him and his lawyers, improperly drew comparisons between defense counsel and J, injected references to his personal life and individual efforts in the case and vouched for the credibility of J. The defendant seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

As stated earlier, the defendant’s theory of defense was that J was never assaulted and that he fabricated the story because he was in trouble with his probation officer and needed an excuse for his failure to comply with the terms of his probation. Defense counsel unfolded this theory during closing argument by attempting to portray J as a liar and a thief. On rebuttal, the prosecutor stated: “I want to thank [defense counsel] because he did something during his argument— he reminded me why I became a lawyer. You can get somebody bom in Fairfield, who practices law in Bridgeport, you can get the former chief of adjudications of the motor vehicle department, you can go to Kentucky and get a twenty year [judge advocate general] attorney, but in this courtroom the word of a twelve year old boy is enough to push them out of the room.

“The first case I ever tried was in Kendrick Avenue and it was a horrible courthouse. There were linoleum floors, the carpet was all tom up, but when I walked in I realized why I wanted to be a trial attorney and why I wanted to be a prosecutor—because a twelve year old boy can come in here and out in the street people might not believe him—someone who spent fourteen years at the motor vehicle department might think that when he is out there he can take advantage of him because there is nobody looking out for him, but when he comes here that’s where I—and that’s where the state is. And we are not going to let this little boy be abused by that man and hire three attorneys.” At that point the trial court stated, “ [m] ove the argument away from the personalization of counsel. Move it away.”

The defendant never objected to the comments, never requested that they be stricken from the record and never requested a curative instruction. On appeal, he claims, for the first time, that the prosecutor was making an “obvious reference” to the defendant’s three attorneys who allegedly had introduced themselves in this manner during voir dire. We say “allegedly” because the defendant has failed to file a transcript of the jury voir dire and, therefore, it is impossible to know from the record whether the prosecutor was, in fact, referring to the three defense attorneys and, if so, whether all of the jurors would have understood this reference. In addition, the defendant also claims that the prosecutor’s reference to “someone who spent fourteen years at the motor vehicle department” was a direct reference to the defendant, who was introduced just prior to voir dire as a former inspector for the department of motor vehicles. Again, there is no record and, therefore, this claim must fail under the first prong of Golding.

As to the defendant’s other claims of prosecutorial misconduct during closing argument, “where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial,” we have consistently held that the second prong of Golding has not been met. (Internal quotation marks omitted.) State v. Villanueva, 44 Conn. App. 457, 461, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997). The claimed misconduct was present in only one portion of the prosecutor’s rebuttal argument and the defendant has failed to show the presence of a pattern of misconduct that was so pervasive throughout the trial that it deprived him of his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such othe'r person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 provides in relevant part: “Any person who . . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       This evidence was first proffered outside the jury’s presence. After objection, the court ruled that the testimony was admissible stating: “The court is of the opinion that it is relevant to the material issue in the case other than the defendant’s character, namely a common plan or scheme or design, and that its probative value outweighs its potential for prejudice. Therefore, the court rules that the uncharged misconduct evidence is admissible.”

       The state later offered D’s written statement to the police, which was admitted without objection. The statement provided the following relevant details: “[The defendant] picked me up at my house last week after it was dark outside and brought me to his house in his car .... He went into this little brown cabinet next to the television and showed me two pornographic movies and asked me which one I wanted to watch. He decided which movie we were going to watch and he put it into the VCR. Then he asked me if I let people touch me for money, touch my private parts. I said ‘no.’ Then he asked me if I would touch his private parts and I said ‘no.’ He started talking real nasty to me and then tried to grab my private parts with his hand while we were on the couch. I pushed him and told him to get away from me.’’

       The trial court stated: “The evidence offered by the state in this regard through [D], of prior acts of misconduct by the defendant, is not being admitted to prove the bad character of [the defendant] or his tendency to commit criminal acts. Such evidence is being admitted solely to show or establish a common scheme in the commission of criminal acts.
      “You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. . . .
      “[I]f you do not believe such evidence or even if you do, if you find that it does not logically and rationally and conclusively support the issues for which it is being offered by the state, namely a common scheme, then you may not consider that testimony for any other purpose.”

       Although the defendant’s conviction was based on acts committed on March 22,1997, the testimony of D at trial related to an incident that occurred roughly two weeks later, sometime prior to April 15, 1997.

       The defendant asked whether D allowed people to touch him for money and then asked whether D would touch him for money. Similarly, the defendant gave J $10 after performing a sexual act on the child.

       The defendant also argues that the similarities between the occurrences were of such a common experience that they apply to pedophiles generally. We do not agree. The inference does not arise “from the mere fact that the charged and uncharged offenses share certain marks of similarity . . . .” State v. Esposito, supra, 192 Conn. 172. However, “the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together.” (Internal quotation marks omitted.) Id.; State v. Madore, 45 Conn. App. 512, 520, 696 A.2d 1293 (1997).

       The defendant also argues that the admission of his uncharged sexual misconduct with D violated his federal due process rights. He seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). It is axiomatic that to prevail on a claim that an evidentiary error deprived the defendant of his federal due process rights, this court must first find that there was in fact an evidentiary error. Because we have held that the trial court appropriately admitted the evidence of the defendant’s uncharged sexual misconduct, the defendant’s claim that such evidence violated his federal due process rights must also fail.

       At the close of evidence, the defendant submitted the following request to charge. “I instruct you that, when a recording of a telephonic conversation is made by police without the knowledge of the defendant, but with the consent and agreement of the other party to the conversation, the use of this procedure to gather evidence is perfectly lawful and, if such a recording existed, the state would have been entitled to use that tape recording as evidence in this case.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       Defense counsel stated: “We have this kid, [J], who claims that [the defendant] sexually assaulted him on March 22, 1997 .... Four days it takes him before he finally tells somebody .... Who does he finally tell? He tells his mother and then who do they go to? Do they go to the cops? No. He goes to his probation officer .... At exactly the same time, coincidentally, the probation officer is in the process of violating his probation and putting him into reform school. . . . He’s got all the motive in the world to lie, ladies and gentleman. He needs a reason to tell his probation officer why he’s been screwing up the way he’s been screwing up. ... [The] [p]rosecutor says these kids were reluctant. Sure they were reluctant. They were lying. Liars are reluctant.”

       The burden is on the defendant to show that the prosecutor’s remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted. State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993).

       To the extent that the remarks are reviewable, first, they were invited by defense counsel’s repeated remarks as to J’s character. See State v. Delosantos, 13 Conn. App. 386, 392, 536 A.2d 609 (1988). Second, the commenls were not so severe that they deprived the defendant of a fair trial. State v. Sherman, 38 Conn. App. 371, 398-99, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995); State v. Boone, 15 Conn. App. 34, 53-54, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988).
      If the prosecutor’s remarks were improper, they were cured by the court’s admonition to the prosecutor in the jury’s presence and the instructions delivered by the court, during its charge to the jury. The court stated: “You should keep in mind that arguments and statements by attorneys in final argument or during the course of the case are not evidence. You should not consider as evidence their recollection of the evidence, nor their personal belief as to any facts or as to the credibility of any witness, nor any facts which any attorney may have presented to you in argument from that attorney’s knowledge which was not presented to you as evidence during the course of the trial. The attorneys are not witnesses. They are advocates. And what they advocate is not evidence.”
      The defendant’s plain error argument is of no merit inasmuch as the trial court did take curative action immediately and in its final charge.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    IN RE BRANDON W. ET AL.

    (AC 18900)
    Foti, Landau and Spear, Js.
    Argued September 23, 1999
    officially released January 18, 2000

      Christopher J. Molyneaux, with whom, on the brief, as Norman J. Voog, for the appellant (respondent mother).

      SusmitaM. Mansukhani, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Boole § 79-3, 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.

   Opinion

SPEAR, J.

The respondent mother appeals from the judgments of the trial court adjudicating as neglected her two minor children, B and C, and committing them to the custody of the commissioner of the department of children and families (commissioner). The respondent claims that the trial court improperly (1) determined that Practice Book § 220 (D), now § 13-4 (4), which precludes expert testimony that is not disclosed prior to trial, does not apply in neglect proceedings, (2) allowed hearsay within hearsay to be admitted into evidence at the trial, (3) granted the commissioner’s motion to preclude her from calling her children as witnesses and (4) refused to require the commissioner to prove its case by the clear and convincing evidence standard. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent is the mother of B, bom in 1988, and C, bom in 1991. The commissioner previously had commenced a neglect proceeding against the respondent as to both B and C in October, 1992. The proceeding resulted in the trial court’s adjudicating the children neglected and placing them under protective supervision for twelve months. The protective supervision was extended to December 21, 1994.

On September 20, 1995, the commissioner obtained a temporary custody order as to the children. The trial court found that the children were in immediate physical danger from their surroundings and that immediate removal from such surroundings was necessary to ensure their safety. On the same day, the commissioner filed a petition alleging that the children were neglected. The commissioner amended its petition on March 26, 1997, to include allegations that F, the respondent’s boyfriend at the time, had sexually abused C.

At the neglect hearing, David Mantell, a clinical psychologist; Lenore Pandolfe, the children’s specialized foster care therapist; and Kathleen Sidoti, an investigative social worker, all qualified as expert witnesses and testified. The respondent objected to their testimony because the commissioner had not provided her with notice prior to trial as required under § 220 (D), now § 13-4 (4), that the experts would be testifying. The trial court overruled the respondent’s objection and admitted the testimony, determining that § 220 (D) did not apply in neglect proceedings because such proceedings are governed by the rules of practice for juvenile matters.

At the outset of Sidoti’s testimony at the neglect hearing, counsel for the commissioner inquired as to how Sidoti became involved in the case. Sidoti responded that she had received a report alleging that C was being sexually abused. Counsel next inquired as to the specific contents of the report. The respondent objected to the question, claiming that such testimony would be hearsay within hearsay. The trial court overruled the objection, and Sidoti testified that: “The report had allegations in it that Toni Moore, the ongoing worker, had gathered that [C] had disclosed . . . that daddy [F] had put his wiener in her butt.” Sidoti eventually went on to testify, in her expert opinion and on the basis of her investigation, that C had been sexually abused.

Pandolfe also testified that, in her expert opinion, C had been sexually abused. Pandolfe went on to testify on the basis of her expert opinion that the children would be unreliable witnesses at the trial. As a result of that testimony, the trial court granted a motion in limine, filed by the commissioner, to preclude the respondent from calling the children as witnesses. Man-tell thereafter testified that F disclosed that he had been convicted twice for sexually abusing two children.

On August 14, 1998, the trial court adjudicated the children neglected. The court found that the commissioner had proven by a fair preponderance of the evidence that C was a sexually abused child and that both she and B had been denied proper care and attention. The court also found that the children were living under conditions injurious to their well-being. As a result, the court concluded that it was not in the best interest of the children to be returned to the custody of the respondent. The court then ordered that the children be committed to the custody of the commissioner for a period not to exceed twelve months. This appeal followed.

I

The respondent first claims that the trial court improperly allowed expert testimony from Mantell, Pandolfe and Sidoti. The respondent asserts that their testimony should have been excluded because the commissioner failed to provide her with notice of those witnesses prior to trial pursuant to § 220 (D), now § 13-4 (4). Specifically, the respondent claims that the trial court improperly determined that the commissioner did not have to meet the notice requirement of § 220 (d), now § 13-4 (4), because that section is not applicable in neglect proceedings. We agree with the trial court.

Ordinarily, a trial court’s ruling on the admissibility of evidence is subject to an abuse of discretion standard of review. See State v. Berger, 249 Conn. 218, 229, 733 A.2d 156 (1999); In re Lauren R., 49 Conn. App. 763, 779, 715 A.2d 822 (1998). “When, however, the trial court draws conclusions of law, our review is plenary . . . .” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997); see also Chance v. Norwalk Fast Oil, Inc., 55 Conn. App. 272, 276, 739 A.2d 1275, cert. denied, 251 Conn. 929, 742 A.2d 361 (1999). In fact, “[a] broader standard of review ... is warranted where . . . we are presented with an issue of first impression involving the applicability of [a statute]”; Baerst v. State Board of Education, 34 Conn. App. 567, 571, 642 A.2d 76, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994); or, as in the present circumstance, a rule of practice.

In determining the applicability of rules of practice, we apply the rules of statutory construction. State v. Siano, 216 Conn. 273, 278, 579 A.2d 79 (1990). This means that we assume that “the promulgators of . . . rules do not intend to proclaim meaningless or ineffective mies . . . .’’Id. The respondent in this case, however, would have us hold that § 220 (D), now § 13-4 (4), contained in the civil procedure section of the Practice Book, applies in neglect proceedings. Such a holding would eviscerate the more specific discovery rule, Practice Book § 35-3, formerly § 1058.1, contained in the juvenile procedure section.

Further, had the judges of the Superior Court desired that § 220 (D), now § 13-4 (4), apply in neglect proceedings, they would have simply stated so. The judges of the Superior Court were fully aware of how to draft the appropriate language as is evidenced in the family procedure section of the Practice Book. Practice Book § 25-31, which governs discovery procedure in family cases, specifically provides that “[t]he provisions of Sections 13-1 through 13-11 . . . shall apply to family matters . . . .” We, therefore, conclude that the trial court correctly determined that § 220 (D), now § 13-4 (4), is inapplicable in neglect proceedings.

II

The respondent next claims that the trial court improperly allowed Sidoti to testify as to what C told Moore regarding the alleged sexual abuse. The respondent essentially claims that the trial court improperly admitted hearsay within hearsay at the trial.

“[A hearsay challenge] is a claim of an erroneous evidentiary ruling and as such does not implicate the constitution.” (Internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 720, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). “In nonconstitutional claims, the [party challenging the ruling] has the burden of demonstrating the haxmfulness of the claimed error. ... He [or she] must show that it is more probable than not that the claimed error affected the verdict.” (Citation omitted; internal quotation marks omitted.) Id.

Even if we assume, arguendo, that the trial court improperly allowed Sidoti’s challenged testimony, the respondent has failed to show how the exclusion of that testimony could have affected the result of the case. “ ‘[A] judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has also been placed before the [trier of fact].’ ” Id.

Here, there was ample evidence apart from the challenged testimony to support the trial court’s conclusions that C was sexually abused and that the respondent’s children were neglected. Sidoti independently investigated and substantiated the sexual abuse allegations and testified that in her expert opinion, C had been sexually abused. C’s specialized foster care therapist, Pandolfe, also testified that in her expert opinion, “[C] exhibits approximately thirty behavioral symptoms of a child who has been sexually abused.” Additionally, evidence was presented at trial that C had been hospitalized for excessive masturbation, another indication of sexual abuse. Accordingly, Sidoti’s challenged testimony was cumulative of properly admitted evidence. We conclude, therefore, that the respondent has failed to demonstrate the harmfulness of the claimed error.

Ill

The respondent next claims that the trial court improperly refused to allow her to call her children as witnesses, thereby violating the right to confrontation afforded her under the due process clauses of the state and federal constitutions and General Statutes § 46b-135 (b). We first summarily dispose of the respondent’s claim of a constitutional right to confrontation under the due process clauses.

The respondent fails to give any state or federal constitutional analysis on this issue. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998); see also State v. Leary, 51 Conn. App. 497, 499, 725 A.2d 328 (1999); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). . . . State v. Barnett, 53 Conn. App. 581, 587, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999).” (Internal quotation marks omitted.) In re Adelina G., 56 Conn. App. 40, 43, 740 A.2d 920 (1999). Accordingly, we decline to review this claim.

We next turn to the respondent’s statutory claim of a right to confrontation under § 46b-135 (b). “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) In re Lauren R., supra, 49 Conn. App. 779.

“[C]ases involving the testimony of abused children require special consideration.” In re Noel M., 23 Conn. App. 410, 421, 580 A.2d 996 (1990). “The trial court maintains the authority to admit or exclude the testimony of a child based on the court’s assessment of the child’s ability to offer relevant and reliable evidence. . . . The [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law.” (Citation omitted; internal quotation marks omitted.) State v. Marquis, 241 Conn. 823, 836, 699 A.2d 893 (1997). The trial court also has the discretion to preclude a child’s testimony where the evidence is cumulative. In re Lauren R., supra, 49 Conn. App. 780; In re Wayne A., 25 Conn. App. 542, 595 A.2d 373 (1991).

The court’s decision to preclude the respondent from calling her children to testify in this case is supported by our past decisions and was rendered with regard to what was right and equitable under the circumstances and the law. See In re Lauren R., supra, 49 Conn. App. 780. The trial court heard expert testimony that requiring C to testify would have a traumatic effect on her, and requiring B to testify would have a similar negative effect on his well-being. Additionally, the court found that the children’s testimony would have been unreliable. Further, given all of the evidence presented at trial as to the sexual abuse of C, the children’s testimony would have been cumulative. We, therefore, conclude that the trial court’s decision to preclude the children from being called as witnesses was a proper exercise of its discretion.

IV

The respondent finally claims that the trial court improperly employed the fair preponderance of the evidence standard rather than the clear and convincing evidence standard. We disagree.

The respondent asks this court to “reconsider the issue of the appropriate burden of proof in these neglect cases, and [to] reverse [our Supreme Court’s] prior holding.” Our Supreme Court established in In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984), that “ ‘the standard of proof applicable to temporary custody proceedings pursuant to [General Statutes] § 46b-129 (b) is a fair preponderance of the evidence.’ ” It is not our function as an intermediate appeals court to rule contrary to Supreme Court authority. See, e.g., State v. Goodman, 35 Conn. App. 438, 442, 646 A.2d 849, cert. denied, 231 Conn. 940, 653 A.2d 824 (1994); State v. Sawyer, 29 Conn. App. 68, 72, 614 A.2d 471 (1992), rev’d on other grounds, 227 Conn. 566, 630 A.2d 1064 (1994); Pettengill v. Pettengill, 18 Conn. App. 557, 559, 559 A.2d 240, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989); see also Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 52 Conn. App. 763, 780, 727 A.2d 807, cert. granted on other grounds, 249 Conn. 906, 733 A.2d 223 (1999). We conclude that the trial court utilized the appropriate standard of proof.

The judgments are affirmed.

In this opinion the other judges concurred.

       The respondent father has not appealed from the trial court’s judgments. We refer to the respondent mother as the respondent in this opinion.

       Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

       The respondent claimed also that the trial court improperly (1) determined that she had abandoned her children and (2) denied her motion to dismiss the case. The respondent withdrew these claims at oral argument.

         The children were scheduled to be returned to the respondent on or about August 14,1999. The commissioner received a twelve month extension, however, and the children are now scheduled to be returned to the respondent on or about August 14, 2000.

       Practice Book § 35-3 (a) provides: "Pretrial discovery by interrogatory, production, inspection or deposition of a person may be allowed with the permission of the judicial authority only if the information or material sought is not otherwise obtainable and upon a finding that proceedings will not be unduly delayed.”

       We also note that, here the respondent had access to the brief reports of the expert witnesses prior to trial.

       General S1 atutes § 46b-135 (b) provides in relevant part: “At the commencement of any proceeding on behalf of a neglected, uncared-for . . . child or youth, the parent ... of the child or youth shall have the rights of confrontation and cross-examination.”

       We note that the respondent did not object to the court’s finding and offered no evidence on the issue.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. LOUIS REED
    (AC 17678)
    O’Connell, C. J., and Vertefeuille and Stoughton, Js.
    Argued October 26, 1999
    officially released January 18, 2000

      Patricia Nielsen, certified legal intern, with whom were Susan M. Hankins, assistant public defender, and, on the brief, Jacqueline Katz-Austin, certified legal intern, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robyn S. Johnson, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Louis Reed, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, he claims that (1) the evidence was insufficient to support the verdict because the state failed to prove that he had taken property from the person of another, (2) the trial court improperly failed to charge the jury as requested on the proposed lesser included offenses of larceny in the fifth degree in violation of General Statutes § 53a-125a and larceny in the sixth degree in violation of General Statutes § 53a-125b, and (3) the trial court improperly denied him the right to confront one of the state’s witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 3, 1996, the victim, Kimberly Garrett, went to a bank in New Haven, accompanied by her children, and her sister and her sister’s children, to cash a $393 check. Prior to entering the bank, Garrett was approached by the defendant, who told her that he needed her help. He said that he was from Africa and was in New Haven to collect some money because of his brother’s death, but that somebody had taken his money. After stating that he could not read or write, the defendant showed her what appeared to be a bus ticket and a key. On the back of the ticket was written “$75.00” and “for a room.” Garrett told him that the ticket was worthless because he could not use it to obtain a hotel room. The defendant then said that an unidentified man had told him to put his credit card and money in a locker at the train station, which the key opened. Garrett advised the defendant to get his money from the locker before the other man broke into the locker to steal the money. The defendant then asked Garrett if she would help him after she cashed her check, and she agreed to do so.

Garrett cashed her check and put the $393 in her pocket. Outside the bank, the defendant was waiting and asked Garrett to hold his “green dollars” for him because he thought that the unidentified man might rob him of his money if he took it with him to the train station. The defendant then pulled a roll of what appeared to be money from his pocket and quickly showed it to Garrett before putting it back in his pocket. He then told Garrett to put his money with hers so it would be safe. Garrett took her $393 from her pocket, and the defendant quickly put his money in a scarf, tied the scarf and laid it in Garrett’s hand on top of her money. The defendant seemed nervous and kept looking around, and this caused Garrett also to look around during their encounter. He then told Garrett to hurry and put the money back in her pocket, which she did. They arranged to meet in five minutes at a restaurant after the defendant returned from the train station. As Garrett, her sister and the children were walking toward the restaurant, Garrett decided to check on her money. She discovered that her money was gone and that all she had left was the defendant’s scarf, inside of which was a $1 bill folded over cut newspaper.

Garrett and her sister took a bus to their mother’s house and returned by car with Garrett’s cousin, Cheryl Bell, to look for the defendant. When they could not locate him, they told police officers at the train station and at Chapel Square Mall what had happened. Shortly thereafter, Garrett saw the defendant standing on Temple Street. Garrett ran from the car to the defendant and demanded her money back. The defendant said that he had come back for that purpose, but then began walking away. Bell, who had since parked her car, blocked his path and Garrett again demanded her money. The defendant then took out his wallet, quickly counted what he claimed was $393, threw it at Garrett and started running away. When Bell jumped in front of him, he pushed her into a parked car and continued to run.

Garrett then ran across the street to another bank where she found John Dattilo, a sergeant with the New Haven police department, and told him what had happened. Dattilo radioed for backup as he gave chase, and the defendant was apprehended by Officers Robert Mullins and Ann Marie Worts. Mullins patted down the defendant and found a scarf wrapped around a $1 bill folded over a bundle of cut newspaper, as well as another scarf, a wallet with miscellaneous identification cards, a claim check for a locker at the train station and some cash. Later, when Garrett checked her pocket, she discovered that she had only $293, not the $393 that the defendant claimed to have thrown at her.

I

The defendant claims first that the state presented insufficient evidence to support the larceny conviction because it failed to prove that the property was taken from the person of another, an essential element of larceny in the second degree. He claims that Garrett was tricked out of her money and, because she did not know how it was obtained by the defendant, the state had not established that it was taken from her person. We disagree.

“The standard of review of an insufficiency claim is twofold. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). . . . State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993). The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . State v. Adams, [225 Conn. 270, 276, 623 A.2d 42 (1993)]. . . . State v. Jones, 37 Conn. App. 437, 449, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).” (Internal quotation marks omitted.) State v. Scott, 55 Conn. App. 660, 665, 740 A.2d 441 (1999). On the basis of the foregoing facts and the inferences reasonably drawn therefrom, we conclude that there was sufficient evidence presented from which the jury reasonably could have found that the defendant took money from the person of Garrett. The defendant’s claim, therefore, is without merit.

II

The defendant next claims that the trial court improperly failed to charge the jury as requested on larceny in the fifth degree in violation of § 53a-125a and larceny in the sixth degree in violation of § 53a-125b as lesser included offenses of larceny in the second degree. We disagree.

The four conditions that must be met for a defendant to be entitled to an instruction on a lesser included offense are set out in State v. Whistnant, 179 Conn. 576, 427 A.2d 914 (1980). These often repeated conditions are that (1) an appropriate instruction has been requested, (2) the greater offense, as set out in the information or the bill of particulars, could not have been committed without having first committed the lesser offense, (3) there is some evidence that justifies conviction of the lesser offense and (4) proof on the element or elements differentiating the two is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. Id., 588.

The defendant claims that he met each of those conditions. The state claims that he has failed to meet the second and fourth conditions.

The information charged the defendant with having stolen an unspecified sum of money from the person of Garrett. Larceny in the fifth degree, in violation of § 53a-125a, requires proof of larceny of something of a value in excess of $250. Larceny in the sixth degree, in violation of § 53a-125b, requires proof of larceny of something of a value of $250 or less.

The defendant claims that because there was evidence that he had taken $393 from Garrett and returned $293 to her, he could not be found guilty as charged of larceny in the second degree, as set forth in § 53a-123 (a) (3), without first being found guilty of larceny in the sixth degree. In considering the second Whistnant prong, the court looks only to the information or bill of particulars and not to the evidence presented at trial. State v. Rozmyslowicz, 52 Conn. App. 149, 156, 726 A.2d 142 (1999). The information did not specify the theft of $250 or less or, indeed, any specific amount. The defendant satisfies the second Whistnant condition where the information alleges the theft of an unspecified sum of money.

We agree with the state, however, that the defendant did not satisfy the fourth prong of Whistnant. In his brief, the defendant states that there was no dispute at trial over identity or intent; only whether the larceny was accomplished by a taking from Garrett’s person, a requisite element of § 53a-123 (a) (3), or through a “Michigan roll-style handkerchief switch,” which the defendant claims supports only a nontrespassory larceny. While it is true that in considering this claim, a court views the evidence in the light most favorable to the defendant; State v. Preston, 248 Conn. 472, 477, 728 A.2d 1087 (1999); the evidence, nevertheless, must be viewed reasonably. Id.

The element that distinguishes larceny in the second degree as charged in the information from larceny in the fifth and sixth degrees is that only larceny in the second degree requires that the theft of the property, whatever its value, must have been from the person of the victim. Our Supreme Court previously has stated that “[e]vidence [of the differentiating element] is sufficiently in dispute where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense.” (Internal quotation marks omitted.) Id., 477-78. Moreover, “the trial court, in making its determination whether the proof is sufficiently in dispute, while it must carefully assess all the evidence whatever its source, is not required to put the case to the jury on a basis [of a lesser included offense] that essentially indulges and even encourages speculations as to [a] bizarre reconstruction [of the evidence].” (Internal quotation marks omitted.) Id., 478.

Here, the defendant did not testify and, in fact, failed to appear at his trial after the jury had been selected. In his brief, however, he suggests that the jury might have concluded from the evidence that he had used the “handkerchief switch” confidence game to substitute a “Michigan roll” of cut-up newspaper and, thus, flimflammed Garrett into giving him her money. There was no evidence describing this confidence game to the jurors, and it was not argued to them. Moreover, we do not agree with the defendant that proof of this element was placed sufficiently in dispute by testimony from Officer Mullins, who, reading from his report, testified that Garrett had told him that she was asked to place her money in a scarf with the defendant’s money. Mullins did not say that Garrett told him that she had given her money to the defendant to put in a scarf, but rather that she was asked to put her money with the defendant’s in a scarf. Garrett herself testified that she had never given the defendant her money and that the defendant had put the scarf with his money in her hand on top of her money.

On the basis of our review of the foregoing evidence, there seems to be no doubt whatsoever that the money was taken from Garrett’s person by the defendant, and we do not believe that the jury reasonably could have found otherwise.

Ill

Finally, the defendant claims that the trial court improperly granted the state’s motion in limine to prevent him from cross-examining a witness, thereby violating his federal and state constitutional rights to confrontation and cross-examination. Because the defendant has offered no separate and independent analysis of his claim under the state constitution, we confine our analysis to the United States constitution. See State v. Dyson, 238 Conn. 784, 794, 680 A.2d 1306 (1996).

In its motion, the state requested a ruling that the defendant be prohibited from eliciting any evidence pertaining to Bell’s participation in an accelerated rehabilitation program and any evidence relative to a pending breach of peace charge because neither involved an offense punishable by imprisonment in excess of one year. Defense counsel opposed the motion and informed the court that his purpose was not to offer any such evidence to impeach the veracity of the witness, but to suggest possible bias, motive or interest. The court granted the motion but allowed the defendant to ask Bell whether she was expecting any leniency from the state for her testimony in the present case.

Thereafter, Bell was called as a witness and testified for the state. As indicated previously, she was not present when the money was stolen from Garrett, but went back with Garrett to the scene and was present when Garrett saw the defendant, as well as when he was apprehended.

On cross-examination, the defendant elicited testimony that Bell had been in court the previous day and had spoken to an individual in the prosecutor’s office. When asked why she was there, she replied that she had a court case. When asked if she had spoken to the state’s attorney about that case, Bell replied that she had not. In addition, when asked whether, in return for her testimony, she had received a favorable outcome on her court case, she said that she had not.

Thereafter, Peter Fradiani, a court services clerk, was called as a witness by the defense. Outside the jury’s presence, he testified that Bell had appeared in the clerk’s office on December 9, 1996, asking about the status of her case. Fradiani stated that he informed Bell that a rearrest had been ordered for her failure to appear, and that she could either turn herself in or file a motion to vacate the rearrest. Fradiani gave Bell a standard motion form, which she filled out. Thereafter, in accordance with standard practice, Fradiani sent a copy to the state’s attorney’s office and continued the motion for one week. On December 16,1996, the motion was granted and Bell’s underlying case was continued to January 14, 1997.

The defendant claims that he should have been permitted to put Fradiani’s testimony before the jury because it demonstrated that Bell was untruthful when she said that she had not received a favorable outcome in the underlying case in return for her testimony in this case. We disagree for several reasons.

The case that was pending had not been disposed of, favorably or otherwise. The rearrest warrant was vacated, but there is not a scintilla of evidence suggesting that this was in any way connected to Bell’s testimony. Moreover, the testimony suggests that standard practice was followed by the clerk’s office. There also was no evidence as to any grounds given on the motion to vacate and no evidence suggesting that the state’s attorney’s office was in any way involved.

The sixth amendment to the United States constitution guarantees to an accused the right to confront the witnesses against him. State v. Lubesky, 195 Conn. 475, 481, 488 A.2d 1239 (1985). The primary interest thus secured is the right to cross-examination; State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985); an important function of which is exposure of a witness’ motivation for testifying. State v. Francis, 228 Conn. 118, 123, 635 A.2d 762 (1993). The confrontation right is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). Under the confrontation clause, there is a minimum of cross-examination that must be accorded to the defendant into matters affecting the reliability and credibility of the state’s witnesses. State v. Johnson, 21 Conn. App. 291, 294, 573 A.2d 1218 (1990). The general rule that restrictions on the scope of cross-examination are within the court’s sound discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. Id. We must first determine, therefore, whether the cross-examination permitted was satisfactory under the sixth amendment and, second, whether the court abused its discretion in restricting the scope of the cross-examination. State v. Castro, 196 Conn. 421, 424-25, 493 A.2d 223 (1985). The evidence sought must be relevant; State v. Johnson, supra, 293; and reasonable limits may be imposed on cross-examination on the basis of concerns that the testimony is only marginally relevant. State v. Moye, 214 Conn. 89, 94, 570 A.2d 209 (1990).

A defendant has the right during cross-examination to place before the jury the fact that criminal charges are pending against the state’s witness; State v. Ortiz, 198 Conn. 220, 223, 502 A.2d 400 (1985); to explore whether the testimony was motivated by the hope for leniency. State v. Lubesky, supra, 195 Conn. 482. This very question was answered in the negative by Bell. The jury nevertheless had before it the information that Bell had a pending case of her own and was able to use that fact in weighing the credibility of her testimony. In addition, there is nothing in the record to show why the motion to vacate in her case was granted or that it was in any way related to Bell’s testimony here. Finally, Bell was not present during the crime and, hence, was not able to offer testimony about it. Rather, she testified only as to the assault against her with which the defendant had been charged. Because the defendant was acquitted of that charge, any limitation on the right to cross-examine Bell was harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 (a) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less, or (5) the property, regardless of its nature or value, is obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older or is blind or physically disabled, as defined in section 1-lf.”

       At this point, more than one hour had passed since Garrett had first met the defendant.

       The defendant requested a charge on larceny in the fifth degree, and the state requested a charge on larceny in the sixth degree.

       In his brief, the defendant claims that a “Michigan roll” is a wad of newspaper wrapped inside currency that gives the appearance of a large amount of money.

       Bell was identified in the substitute information as the victim in a charge against the defendant of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), which resulted from the incident in which he pushed her into a car when she attempted to prevent him from running away from Garrett. The defendant was acquitted of this charge.


author: PER CURIAM.

text:
    GREG C.’S APPEAL FROM PROBATE
    (AC 18392)
    O’Connell, C. J., and Schaller and Hennessy, Js.
    Argued September 1, 1999
    officially released January 25, 2000

      Earl Mitchell, certified legal intern, with whom were Royal J. Stark, and John Myer, Rachel Proulx and Hon Choi, certified legal interns, for the appellant (plaintiff).

      William F. Breg, for the appellee (defendant Michelle V.).

      Robert E. Lancaster and Michael Lifrak and Elsie Miller, law student interns, filed a brief for Advocacy Unlimited, National Association for Rights Protection and Advocacy, and Advocacy for Persons with Disabilities as amici curiae.
   Opinion

PER CURIAM.

The plaintiff, Greg C., appeals from the judgment of the Superior Court dismissing his appeal from the judgment of the Probate Court for the district of Waterbury ordering the appointment of a conservator of his person and estate.

The Superior Court dismissed the appeal because it was not taken within the time required pursuant to General Statutes § 45a-187. Our examination of the record and briefs and consideration of the oral arguments of the parties persuades us that the judgment of the trial court should be affirmed.

The issue of whether the appeal from probate was timely taken was properly resolved in the Superior Court’s thoughtful and comprehensive memorandum of decision. Greg C.’s Appeal from Probate, 46 Conn. Sup. 232, 744 A.2d 961 (1998). Because the memorandum of decision fully addresses the dispositive issue raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on that issue. It would serve no useful purpose for us to repeat the discussion contained therein. In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.

       General Statutes § 45a-187 (a) provides in relevant part: “An appeal under section 45a-186 by those of the age of majority and who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days. If such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing, then appeal shall be taken within twelve months . . . .”


text:
    TOWN OF SUFFIELD v. FRANKLYN H. CARRINGTON ET AL.
    (AC 19463)
    O’Connell, C. J., and Schaller and Daly, Js.
    Argued October 22, 1999
    officially released January 25, 2000

      Bruce G. MacDermid, for the appellants (named defendant et al.).

      Donald R. Holtman, for the appellee (third party plaintiff).
   Opinion

PER CURIAM.

The defendants Franklyn H. Carrington and Carolyn R. Carrington appeal from the judgment of the trial court rendered after the granting of summary judgment in favor of the third party plaintiff, the Suffield water pollution control authority.

The genesis of this case was an action by the town of Suffield (town) to foreclose tax liens on the property of the defendants. The water pollution control authority was a defendant by virtue of hens for nonpayment of a sewer assessment and sewer use fees. See Practice Book § 10-69. When the town and the defendants settled their tax dispute, the water pollution control authority filed a cross complaint to foreclose its liens. At that point, the town withdrew its foreclosure action, leaving only the water pohution control authority’s cross complaint to be litigated.

On appeal, the defendants claim that the trial court improperly found that (1) their property had received benefits from the construction of a sewer system and (2) there were clear and undisputed facts showing that they had access to the sewer over their land.

The issues before this court were resolved in the trial court’s thoughtful and comprehensive memorandum of decision. Suffield v. Carrington, 46 Conn. Sup. 228, 744 A.2d 958 (1998). Because that memorandum of decision fully addresses the dispositive issues raised in this appeal, we adopt it as a proper statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the discussion contained therein. In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. KYLE BAINES
    (AC 19457)
    O’Connell, C. J., and Foti and Vertefeuille, Js.
    Argued October 28, 1999
    officially released January 25, 2000

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Kyle Baines, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a (a) and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53-54a (a) and 53a-48 (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) denied his motion to sever his trial from that of his codefendant, Jamal Jenkins, (2) refused to admit certain evidence and (3) instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of August 13, 1996, Laura Woodtke, Kirk McKenzie and the victim, Aubrey Rodney, were sitting outside at 60 Farren Avenue in New Haven, where Woodtke resided. They were approached by Robert Spearman, who said, “[You have] ten minutes to vacate the premises or we’re going to kill you.” Spear-man was joined by Jenkins, Tyrone Kindred, the defendant and another unidentified male. The five men formed a semicircle and, after some conversation, the defendant pulled a wool mask over his face. The five men took out guns at Jenkins’ instruction. As Woodtke and the victim ran, approximately five shots were fired, with one bullet entering the victim’s back and causing his death.

Although all five were armed, only Jenkins and the defendant fired their weapons. Jenkins shot the victim in the back, and the defendant fired at the fleeing McKenzie. The two fired five or six shots between them. The incident was observed by a witness, Joy Terry, from a second floor window in her apartment.

I

The defendant first claims that the trial court improperly denied his motion to sever his trial from that of his codefendant, Jenkins. We disagree.

Certain additional facts are necessary for the resolution of this issue. At the time of Jenkins’ arrest on October 7,1996, the defendant and Kindred had already been placed under arrest. They were arrested on August 15, 1996. Spearman, however, was not arrested until December 20,1996. After being arrested, Jenkins stated to the police that “there is one more person you should get.”

The defendant argued before the trial court that the statement incriminated him by implication because it meant that the right people had been arrested and the police needed to get one more person. The state argued that the statement neither named the defendant, nor was it demonstrated that, at the time the statement was made, Jenkins knew that the defendant had been arrested. The trial court denied the defendant’s motion prior to trial and again at trial.

The defendant claims that his motion to sever should have been granted because Jenkins’ statement effectively inculpated him in the crime, and the denial of the motion violated his confrontation rights pursuant to Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

“[Wjhether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court. . . . Ordinarily justice is better subserved where parties are tried together. . . . Joint trials of persons jointly indicted or informed against are the rule, and separate trials the exception resting in the discretion of the court. ... A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less advantageous to the accused than separate trials. . . . State v. White, 229 Conn. 125, 158-59, 640 A.2d 572 (1994); accord State v. Walton, 227 Conn. 32, 56, 630 A.2d 990 (1993); State v. Smith, 201 Conn. 659, 668-69, 519 A.2d 26 (1986); see also State v. Vinal, 198 Conn. 644, 648, 504 A.2d 1364 (1986).

“The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded. State v. White, supra, 229 Conn. 158. [W]e will reverse a trial court’s ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants. State v. Vinal, supra, 198 Conn. 649. The discretion of the court is necessarily exercised before the trial begins and with reference to the situation as it then appears to the court. State v. Smith, supra, 201 Conn. 669; accord State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 (1943).” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 620, 737 A.2d 404 (1999).

We review the trial court’s decision to deny the defendant’s motion for severance based on the evidence before the court at that time. Id. Even if we conclude, however, that the trial court did not abuse its discretion in denying the defendant’s motion, we must also consider whether, as the trial developed, the joinder resulted in substantial injustice to the defendant. Id., 623.

“Á defendant is deprived of his rights under the confrontation clause when the nontestifying codefendant’s confession, which expressly'irtiplicales him as a participant in the crime, is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. Bruton v. United States, [supra, 391 U.S. 137]. . . .

“Bruton is limited to those confessions that are incriminating on their face in that they ‘expressly implicate’ the defendant in the actual commission of the crime. Richardson v. Marsh, [481 U.S. 200, 204-10, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987)] . . . .” (Citations omitted; emphasis in original.) State v. Edwards, 39 Conn. App. 242, 245, 665 A.2d 611, cert. denied, 235 Conn. 924, 666 A.2d 1186 (1995).

While a case may not fall within the ambit of Bruton and not be violative of the confrontation clause if a nontestifying codefendant’s confession is admitted with a proper limiting instruction when the confession is redacted to eliminate the defendant’s name and any reference to his or her existence; Richardson v. Marsh, supra, 481 U.S. 204-10; if the redacted confession refers directly to the existence of the nonconfessing defendant, or “replaces a defendant’s name with an obvious indication of deletion, such as a blank space, the word ‘deleted’ or a similar symbol, [it would still fall] within Bruton's protective rule.” Gray v. Maryland, 523 U.S. 185, 192, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998).

We conclude that the facts of this case do not demonstrate that a Bruton violation occurred. The statement by Jenkins neither named nor incriminated the defendant directly. While it may be argued that the statement inferentially incriminated someone other than Jenkins, only by linking the statement to other evidence could the jury infer that person to be the defendant. Our Supreme Court has limited the application of Bruton, stating that “extrajudicial statements or confessions by one defendant which do not directly inculpate the codefendant are not within the prohibition of Bruton . . . and are admissible.” State v. Cosgrove, 181 Conn. 562, 591, 436 A.2d 33 (1980).

The trial court specifically instructed the jury that it could not use the statement as evidence against the defendant, but could only use the statement against the person who made it, Jenkins. The jury is presumed to follow the court’s instructions. State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978); accord State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991). Accordingly, the defendant did not suffer substantial prejudice by the admission of the codefendant’s statement so as to require a separate trial.

It is the defendant’s burden on appeal to show that a joint trial caused “substantial injustice.” State v. White, supra, 229 Conn. 160-62. The record before us fails to show that the jury could not follow the trial court’s cautionary instructions and that the defendant was actually prejudiced substantially by the admission of Jenkins’ statement.

We reject the defendant’s claim that he was substantially prejudiced by the joint trial.

II

The defendant next claims that the trial court improperly excluded evidence as to the whereabouts of the state’s witness, Terry, at the time of the shooting. The defendant alleges that this action by the trial court, together with the denial of an offer of proof, violated his constitutional right to present a defense. The state argues that because the defendant did not join in Jenkins’ offer of proof or his codefendant’s objections concerning the proffer and admissibility of the evidence, he is not entitled to adopt his codefendant’s appellate claims. In the alternative, the state argues that the trial court’s actions were proper.

This claim was fully addressed and rejected by this court in the companion case, State v. Jenkins, 56 Conn. App. 450, 453-57, 743 A.2d 660 (2000). That decision is dispositive of this claim. We conclude that the defendant’s claim is without merit.

Ill

The defendant finally claims that the trial court improperly instructed the jury on reasonable doubt. The defendant acknowledges that he submitted a request to charge containing similar language to the charge as given by the trial court and that no exception was noted to the charge as given. He claims that he is entitled to review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5.

The defendant claims that the court’s instruction on reasonable doubt was improper because it characterizd a reasonable doubt as “a doubt as would cause reasonable men and women to hesitate to act upon it, in matters of importance,” and “a real doubt,” and “not a doubt suggested by counsel, which is not warranted by the evidence.” He alleges that the instruction violated his rights to due process as guaranteed by the federal and state constitutions.

We will review this claim because the record is adequate for review and the defendant alleges the violation of a fundamental constitutional right. See State v. Morant, 242 Conn. 666, 687, 701 A.2d 1 (1997). We conclude, however, that the alleged constitutional violations did not clearly exist and did not deprive the defendant of a fair trial.

Our Supreme Court has upheld the use of the same or similar language relative to “hesitate to act”; id., 688; and “a real doubt.” State v. Hines, 243 Conn. 796, 816-20, 709 A.2d 522 (1998). The instruction concerning “not a doubt suggested by counsel, which is not warranted by the evidence,” or similar language, has been determined not to constitute reversible error. See State v. Delvalle, 250 Conn. 466, 473-74, 736 A.2d 125 (1999); State v. Cansler, 54 Conn. App. 819, 834, 738 A.2d 1095 (1999); State v. Gonda, 53 Conn. App. 842, 732 A.2d 793, cert. denied, 250 Conn. 919, 738 A.2d 660 (1999).

We conclude, on the basis of the record before us, that the alleged constitutional violations did not clearly exist and that the defendant was not deprived of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. JAMAL JENKINS
    (AC 19458)
    O’Connell, C. J., and Foti and Mihalakos, Js.

      Argued October 28, 1999
    officially released January 25, 2000

      Kenneth Rosenthal, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jamal Jenkins, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1). The defendant claims that the trial court improperly (1) precluded defense evidence contesting the whereabouts of an eyewitness, (2) barred him from offering proof regarding evidence of the location of one of the state’s two eyewitnesses and (3) allowed evidence against him with respect to coconspirators. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 13, 1996, the victim, Aubrey Rodney, was talking with Lama Woodtke and Kirk McKenzie outside Woodtke’s apartment at 60 Farren Avenue in New Haven. Shortly after 9:20 p.m., they were approached by Robert Spearman, whom Woodtke had seen before and recognized. Spearman was armed and stated to the three individuals, “[You have] ten minutes to vacate the premises or we’re going to kill you.”

Almost immediately following this warning, four individuals approached from 69 Farren Avenue, a residence across the street that was a reputed drug house. Among this group were the defendant, to whom Woodtke referred as “Head Honcho,” and Kyle Baines and Tyrone Kindred. The defendant reiterated Spearman’s threat and stated that the three were on his turf. At the same time, the defendant told the four men who were with him to draw their guns. Woodtke turned and ran toward her apartment. While she was running with her back to the men, Woodtke heard multiple gunshots. The victim, who was running behind Woodtke, fell on top of her. The victim rose to his feet, stumbled a few feet and fell to the ground. Woodtke looked back at the group of men and saw the defendant standing with his right arm extended as if he had just shot the victim. The other men still had their weapons at their sides.

While Woodtke ran inside and called the police, the five men fled. McKenzie also fled. Within a few minutes of being shot, the victim died from internal bleeding. When the police arrived, Woodtke gave them a detailed description of the suspects and subsequently identified the defendant, Baines, Kindred and Spearman from two arrays of photographs. Woodtke also made in-court identifications of the defendant and codefendant Baines.

Joy Terry saw the shooting from a second floor window in her apartment. She heard the defendant ordering Woodtke to leave and witnessed the defendant shoot the victim in the back as the victim was fleeing. She heard five or six gunshots and recognized the defendant because she had purchased drugs from him at a near by street. Terry gave a statement to police on the day following the shooting. She also picked the defendant and some of his accomplices out of a photographic array.

The police did not recover the weapons from the crime scene, but they did recover four nine millimeter cartridge casings and one nine millimeter bullet at the scene of the shooting.

I

The defendant first claims that the trial court wrongfully excluded defense evidence concerning the whereabouts of Terry. We disagree.

After the state rested, the defendant sought to recall Woodtke to question her as to whether she had seen Terry outside, at a location from which she could not have seen the shooting, immediately prior to the shooting. The court allowed Woodtke to be recalled outside the presence of the jury, finding that evidence of Terry’s whereabouts at the time of the shooting was relevant. Woodtke testified that she had not seen “Joy Terry,” a black woman, around the time of the shooting but had seen a white woman named “Terry.” The defense then requested permission to call defense investigator T.W. O’Donnell to testify about Woodtke’s statements to him concerning Terry. O’Donnell had taken statements from Woodtke in the course of his investigation. The trial court refused to allow O’Donnell to testify, finding that his testimony about Woodtke’s references to Terry would be confusing to the jury and was not relevant.

The court acted within its discretion in denying the admission of the defendant’s proffered evidence. The admission of evidence is highly discretionary, and the court’s decision is entitled to great deference. State v. Berger, 249 Conn. 218, 229, 733 A.2d 156 (1999); State v. Grant, 51 Conn. App. 824, 826, 725 A.2d 367, cert. denied, 248 Conn. 916, 734 A.2d 568 (1999). “Evidence is relevant if it has a tendency to establish the existence of a material fact.” State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). Furthermore, the proffered evidence about Woodtke’s testimony was not sufficient to contradict the testimony of Terry that she saw the shooting from inside her apartment. This evidence was offered to impeach Terry and was found by the court to lack relevance. See State v. Smith, 49 Conn. App. 252, 258-59, 714 A.2d 1243, cert. denied, 247 Conn. 914, 722 A.2d 809 (1998) (witness may be impeached by introduction of contradictory evidence from other witnesses if evidence is contradictory and does not relate to collateral matter). Since the court found that the defendant did not meet his burden of demonstrating that the evidence was relevant, it properly excluded the evidence.

The defendant next claims that by excluding the proffered evidence, the court prevented him from exercising his constitutional right to present a defense. We are not persuaded by this argument. The defendant seeks Golding review as to this issue. We conclude that the defendant’s claim fails the second prong of review pursuant to Golding. The claim is not reviewable under Golding because it is not of constitutional magnitude. The defendant was not prohibited from offering a defense. Rather, the defendant’s evidence was not allowed pursuant to the court’s discretion and the rules of evidence and procedure.

The constitution does not require that a defendant be permitted to present every piece of evidence he wants. State v. Shabazz, 246 Conn. 746, 752-53 n.4, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). The court retains the power to rule on the admissibility of the proffered evidence pursuant to evidentiary standards; hence, the question is evidentiary and not constitutional. Id.

It is well settled that a party “must comply with established rules of procedure and evidence designed to assure both fairness and reliability . . . .” (Internal quotation marks omitted.) State v. Kelly, supra, 208 Conn. 376. The court allowed the defendant to recall Woodtke outside the presence of the jury to determine whether her testimony would contain any information that could impeach Terry’s eyewitness testimony. The court’s ruling as to admissibility of evidence is not one of constitutional magnitude. “Relevancy is an evidentiary question and ‘[e]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.’ ” State v. Harris, 48 Conn. App. 717, 726 n.12, 711 A.2d 769, cert. denied, 245 Conn. 922, 717 A.2d 238 (1998). The defendant claims that this evidence was central to his case, yet his trial counsel admitted that she forgot to raise this issue when Woodtke originally testified. Additionally, the defendant was permitted to present other evidence relating to the reliability of Terry’s identifications. The defendant’s claim is not of constitutional magnitude alleging the violation of a fundamental right and we, therefore, decline to review it.

II

The defendant claims next that the trial court wrongfully precluded him from presenting an offer of proof regarding evidence of the location of Terry, one of the state’s eyewitnesses. We disagree.

The state was given a copy of the report of the interview with Woodtke by the investigator, O’Donnell. After reviewing the report, the state argued that it was identical to Woodtke’s testimony. A portion of the report was marked for identification, and the court stated that the exhibit was “a report, or a portion of the report that the defense inspector would testify to.” Although the defendant wanted the investigator to testify as to whether Woodtke had said “Joy Terry” even though the report stated that she had said “Terry,” the court did not allow that inquiry.

A proper offer of proof serves three purposes. First, it informs the court of the legal theory under which the evidence is admissible. Second, it should inform the trial judge of the specific nature of the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review. State v. Zoravali, 34 Conn. App. 428, 433, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). The decision not to allow the investigator to testify was proper because the three purposes behind the defendant’s offer of proof had been met. First, the defendant was permitted to argue that Woodtke’s testimony concerning the presence of another “Terry” during the shooting was admissible on the issue of Terry’s location at that time. Second, Woodtke’s testimony, along with O’Donnell’s report, sufficiently informed the court of the specific nature of the proffered evidence so that it could rule on its admissibility. Third, an adequate record had been created because the specific nature and the relevance of the evidence was readily discernible. The court properly refused to allow O’Donnell to testify as part of the defendant’s offer of proof because the purposes behind making the offer of proof already had been served.

Even if we held that the investigator’s testimony was improperly excluded, its exclusion was harmless because the testimony would have been cumulative. See State v. Wearing, 46 Conn. App. 741, 756, 701 A.2d 41, cert. denied, 243 Conn. 937, 702 A.2d 645 (1997) (factor to be considered in determining whether improper ruling on evidence harmless is whether testimony was cumulative). Accordingly, we reject the defendant’s claim that the court’s ruling that the defendant could not present an offer of proof regarding evidence was harmful.

Ill

The defendant’s final claim is that the court improperly allowed evidence against the defendant with respect to coconspirators. We disagree.

The state elicited testimony from several New Haven police officers concerning their contact with codefendant Baines and with Kindred and Spearman, whose trials had been severed from that of the defendant and Baines. The purpose of this evidence was to link the defendant with the various members of the group involved in the shooting and to support the eyewitnesses’ statements that the defendant and his coconspirators “hung out” at 69 Farren Avenue. At trial, the state presented the proposed testimony of each officer outside the presence of the jury. The defendant’s objection to this evidence was overruled by the trial court.

The defendant was charged with the crime of conspiracy to commit murder in addition to the other offenses. Therefore, it was incumbent upon the state to establish a connection between the defendant and his alleged coconspirators. This court has permitted the introduction of evidence of acts of prior misconduct to establish a relationship between a defendant and his alleged coconspirators where one of the charges against the defendant was a conspiracy charge. State v. Jones, 44 Conn. App. 338, 345-46, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997) (evidence of drug dealing permitted to show relationship among alleged coconspirators where defendant charged with conspiracy to commit murder); State v. Harris, 43 Conn. App. 830, 832-37, 687 A.2d 544 (1996) (evidence of existence of drug operation permitted to show relationship among various individuals where charge is conspiracy to commit murder). The evidence in this case was relevant because it showed various instances of contact between the alleged coconspirators and supported the identification testimony of the eyewitnesses. It is not enough for the defendant to claim that the events in testimony did not all directly involve him. A trial court is not required to find, as a prerequisite to admissibility, that evidence is conclusively linked to other evidence. State v. Thomas, 205 Conn. 279, 283, 533 A.2d 553 (1987).

The defendant’s final claim is that the trial court did not weigh the probative value of the evidence against its prejudicial effect. We find this claim to be without merit. The trial court heard the proposed evidence outside the presence of the jury and restricted the testimony to limit any unnecessary prejudice. A specific reference to prejudice is not necessary where the conduct of the court demonstrates that it considered this factor. State v. Moore, 49 Conn. App. 13, 22 n.8, 713 A.2d 859 (1998). The trial court clearly acted to eliminate any unnecessary prejudice in its consideration of the coconspirator evidence. For the foregoing reasons, we conclude that the trial court properly admitted the coconspirator evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), a defendant can prevail on an unpreserved claim of constitutional error only if all of the following requirements are satisfied: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”