author: FOTI, J. LAVERY, J.,

text:
    STATE OF CONNECTICUT v. JOHN PRESTON
    (AC 15834)
    Foti, Lavery and Herman, Js.
    Argued June 2
    officially released September 23, 1997

      Michael P. Iacurci, and Curtis L. Schrandt, certified legal interns, with whom was Susan Hankins, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John F. Blawie, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, John Preston, appeals from the judgment, rendered after a jury trial, convicting him of robbery in the third degree in violation of General Statutes § 53a-136. On appeal, he claims that the trial court improperly (1) failed to instruct the jury on the lesser included offense of larceny in the sixth degree, (2) admitted the codefendant’s statement to police as a prior consistent statement, and (3) refused to give a Secondino charge to the jury. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On March 19, 1994, the defendant entered Milk Plus, a convenience store in Fairfield. He tucked six or eight packs of cigarettes in his shirt. The cashier, Karem Shaham, was alerted to the defendant’s conduct by a customer, Arlene Wall, and observed the defendant’s actions. The defendant went to the cash register and placed three or four packs of cigarettes on the counter. When Shaham asked the defendant if he had enough money to pay for everything, the defendant replied that he had $30. Shaham asked him if he had anything in his shirt. As the defendant pulled out his shirt, Shaham could see more packs of cigarettes in his shirt. The defendant then attempted to leave the store, but Sha-ham jumped over the counter and tried to stop him from leaving. Shaham ripped open the defendant’s shirt and several packs of cigarettes fell onto the floor. He also grabbed one of three bottles of liquor that the defendant had stuffed in his pants and put it on the counter.

The struggle between Shaham and the defendant continued in the parking lot. The two men pushed and struck each other. At one point, the defendant held a bottle over Shaham’s head threatening to strike him. The defendant then ran to a car waiting in the parking lot. As he attempted to enter the car, Shaham again tried to prevent his escape. The driver of the car, however, pointed a pistol at Shaham and Shaham backed away.

Shaham then went into the store next to Milk Plus, Grasmere Liquor Store. Shaham returned the bottle of liquor that he had removed from the defendant, and the liquor store clerk noticed that two other bottles of liquor were missing.

The police investigated the incident. Shaham gave them the license plate number of the vehicle, which was found later that day and towed away. The registered owner of the vehicle, William Revis, telephoned the police to inquire about his missing car and was informed that his vehicle had been involved in a crime. Revis told the police that it was the defendant who had entered the stores. He denied that he had threatened Shaham with a pistol or that he was involved in the crime in any manner other than driving the defendant to Fairfield.

The defendant claimed that he was not the individual who committed the crime. Shaham identified the defendant, through a composite picture and photographic array, as the perpetrator. The defendant was charged with robbery in the first degree. He was convicted of the lesser included offense of robbery in the third degree and sentenced to five years incarceration. This appeal followed.

I

The defendant claims that the trial court improperly failed to instruct the jury on larceny in the sixth degree as a lesser offense included in the charged offense of robbery in the first degree.

In determining whether the trial court was required to charge the jury on a lesser included offense, the reviewing court must apply the four-pronged test in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. ” Id. “In considering whether the defendant has satisfied the requirements set forth in State v. Whist-nant, [supra, 588], we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. ... On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Citations omitted; internal quotation marks omitted.) State v. Collins, 45 Conn. App. 6, 9-10, 692 A.2d 865 (1997).

The state claims that the defendant has not satisfied the first prong of the Whistnant analysis because he failed to submit an appropriate request to charge. The state argues that the defendant’s request to charge failed to provide the essential facts justifying this request and also that the defendant did not cite to any authority for the charge except for the statutory provision defining larceny in the sixth degree. General Statutes § 53a-125b.

The trial court determined that the evidence did not justify a lesser included offense instruction and, therefore, rejected the defendant’s request for such an instruction under the third and fourth prongs of Whistnant We have previously refused to consider a claim that the request did not comply with the first prong when the state failed to raise the argument at trial. See State v. Smith, 35 Conn. App. 51, 60 n.5, 644 A.2d 923 (1994). Nevertheless, we conclude that the defendant’s written request to charge and the colloquy between the court and defense counsel complied with the first prong of Whistnant and sufficiently alerted the trial court of the basis for the request.

The state also contends that the defendant failed to satisfy the third and fourth prongs of the Whistnant analysis because there was not sufficient evidence introduced to justify instruction on the lesser included offense.

We find that there was evidence introduced that the defendant was merely shoplifting. Witnesses testified that the defendant had concealed cigarettes from Milk Plus in his shirt and bottles of liquor from Grasmere Liquor Store in his pants. The defendant claims that the jury reasonably could have found that the defendant did not use force in committing the theft. It can be argued that the jury could have found that any force used by the defendant was to protect himself from Shaham or that the defendant used force only outside the store, and not in committing the theft.

Nevertheless, the state claims that the defendant did not place the matter “sufficiently in dispute” to satisfy the fourth prong of Whistnant. It argues that there was no dispute as to the fact that force was used in the commission of the theft.

“Evidence 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. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal.” (Internal quotation marks omitted.) State v. Collins, supra, 45 Conn. App. 10. The element differentiating robbery from larceny is the use or threatened immediate use of physical force. Id.

Although the defendant testified that he was not the perpetrator of the crime, there was testimony addressing the issue of whether force was used in the theft. In cross-examining Shaham, the defendant addressed the issue by asking him if the defendant had struck him. Shaham responded, “The man did strike me, outside. He did push me and strike me outside. As well as, I did strike him and I did push him.” Shaham also testified that the defendant raised a bottle over his head. That threatening gesture, however, came subsequent to Shaham’s striking the defendant in the parking lot, and, arguably, as a defensive maneuver. In addition, Wall testified that she saw Shaham grab the defendant and that she thought the defendant pushed Shaham away. Revis testified that he saw the defendant and Shaham struggling in the parking lot. He also testified he did not have a gun and, therefore, did not threaten Shaham with the use of force.

“[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Internal quotation marks omitted.) State v. Smith, supra, 35 Conn. App. 60. We conclude that the issue of force was sufficiently in dispute to require the trial court to instruct on the lesser included offense of larceny in the sixth degree. Although we reverse the judgment on this ground, we address the defendant’s other claims because they may arise on retrial.

II

The defendant claims that the trial court improperly admitted Revis’ statement to the police as a prior consistent statement. He claims that Revis, his codefendant at trial, had a motive to implicate him even at the time of the earlier statement.

“The trial court has broad discretion in ruling on the admissibility of evidence and only upon a showing of a clear abuse of discretion will this court set aside rulings on evidentiary matters.” (Internal quotation marks omitted.) State v. Jones, 44 Conn. App. 476, 486, 688 A.2d 14 (1997).

Revis gave a statement to the police three days after the incident. Months later, he was arrested and charged with robbery in the first degree, conspiracy to commit robbery, conspiracy to commit larceny and a misdemeanor larceny. Before the defendant’s trial, Revis entered into a plea bargain with the state in which the first degree robbery charge was reduced to robbery in the second degree and the other charges were not prosecuted. In cross-examining Revis, the defendant impeached Revis’ testimony on the basis of the plea bargain, demonstrating Revis’ interest in testifying for the state in order to receive favorable treatment.

On redirect examination, the state sought to corroborate Revis’ testimony by introducing his written statement to the police. The court ruled the evidence admissible, but cautioned the jury, at the time of the testimony and again in its final instructions, that the jury should scrutinize his testimony carefully because he was an accomplice and may have been influenced by his self-interests. In its charge, the court also informed the jury that Revis’ statement was offered not for the truth of the matters contained therein, but solely to rehabilitate the witness following his impeachment on the issue of bias or motive.

In State v. Dolphin, 178 Conn. 564, 570-71, 424 A.2d 266 (1979), our Supreme Court recognized that a prior consistent statement may be offered to rebut a suggestion that a witness’ testimony was influenced by bias, interest or motive. The fact that Revis may have been acting in his own self-interest at the time of the first statement to the police does not defeat the statement’s admissibility. The jury is free to weigh the credibility of a witness whose self-interest may motivate him to be less credible. See State v. Cooke, 42 Conn. App. 790, 796, 682 A.2d 513 (1996). We conclude that the trial court did not abuse its discretion by admitting Revis’ prior statement.

Ill

The defendant claims that the trial court improperly failed to instruct the jury pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). He contends that Patricia Moriarty, who was in Milk Plus during part of the incident, was both available and a party the state would naturally produce if her expected testimony would be favorable.

The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him permits the inference that the evidence of the witness would be unfavorable to the party’s cause. Id., 675. Nevertheless, “[a] prospective witness whose testimony would be comparatively unimportant, cumulative or inferior to what has been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge.” State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989). The state presented the testimony of two eyewitnesses who were in Milk Plus at the time of the incident, Shaham and Wall. Moriarty’s statement to the police was introduced during cross-examination of a police detective by the defendant. The state may have deemed her presence at trial unnecessary, and no evidence was introduced as to her availability. Moreover, the defendant was free to call Moriarty as a witness. We conclude, therefore, that the trial court’s determination that a Secondino charge was unnecessary was not improper.

The judgment is reversed and the case is remanded for a new trial.

In this opinion HEIMAN, J., concurred.

LAVERY, J.,

dissenting. I disagree with the majority’s conclusion that the trial court should have instructed the jury on larceny in the sixth degree. I agree with the trial court’s decision not to deliver the charge based on the third and fourth prongs of Whistnant.

“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

Our Supreme Court has determined “that in order to meet the third prong of the Whistnant test, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.” State v. Rasmussen, 225 Conn. 55, 67-68, 621 A.2d 728 (1993). Furthermore, our Supreme Court has rejected the contention “that the presentation of an abstract theory in a request to charge or the mere introduction of some evidence satisfies the third condition of Whistnant.” Id., 67.

It is well established that the element differentiating robbery from larceny is the use or threatened immediate use of physical force. State v. Collins, 45 Conn. App. 6, 10, 692 A.2d 865 (1997). The record is replete with evidence that the defendant used force in the commission of this offense and there is no testimony by any witness that the defendant did not use force. There was testimony from two eyewitnesses that the defendant and Karem Shaham fought when Shaham tried to prevent the defendant from stealing his merchandise. Shaham, himself, testified that the defendant pushed and punched him and threatened to strike him in the head with a liquor bottle. The defendant did not refute this evidence, but instead chose to challenge the identity of the perpetrator.

Furthermore, the defendant’s contention that any use of force on his part was merely an attempt to escape rather than to retain the property he had stolen has no basis in the evidence. According to the evidence found in the record, the struggle between Shaham and the defendant began in the store and continued in the parking lot. Shaham testified that the defendant did not want him to grab the liquor bottle tucked in the defendant’s pants, and that the defendant threatened to hit him with the bottle to prevent him from taking it.

Pursuant to the fourth prong of Whistnant, the elements differentiating the lesser included offense from the charged offense must be sufficiently in dispute to permit the jury to find the defendant not guilty of the greater offense but guilty of the lesser. State v. Manley, 195 Conn. 567, 574-75, 489 A.2d 1024 (1985). The defendant may place a matter in dispute either through cross-examination or through evidence presented as part of his case. Id., 578.

I agree with the trial court’s conclusion that there was no actual dispute over whether force was used in the commission of this theft. The defendant’s testimony did not conflict with the state’s witnesses. Moreover, the defendant did not place the element of force in dispute through the cross-examination of the state’s witnesses. Although Arlene Wall, who was in the store during the incident, testified that she did not see what occurred outside the store, her inability to observe the violent exchange between Shaham and the defendant did not put this element in dispute. Furthermore, Wall did testify that she observed Shaham and the defendant exchanging words and saw the defendant push Shaham away when they were all inside the store. William Revis’ testimony was also corroborative of Shaham’s version of events.

Our Supreme Court has held that “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].’ United States v. Sinclair, 444 F.2d 888, 890 (D.C. Cir. 1971).” State v. Manley, supra, 195 Conn. 579-80.

Therefore, I respectfully dissent from the majority opinion because the defendant failed to sustain his burden of meeting the third and fourth prongs of Whistnant.

I would affirm the judgment of the trial court.

       General Statutes § 53a-136 provides in relevant part,: “(a) A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133. . .
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

         Secondino v. New Haven Gas Co., 147 Conn. 672, 164 A.2d 598 (1960).

       Shaham’s father owned both Milk Plus and Grasmere Liquor Store.

       General Statutes § 53a-125b provides in relevant part: “(a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less. ...”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       In his written request to charge, the defendant requested an instruction on the lesser included offense of larceny in the sixth degree because “[t]he jury may find that no force was used and that no robbery took place, but that items valued less than $100 were taken.”
      The colloquy between the court and defense counsel also set out the essential facts that counsel claimed justified the lesser included offense instruction. The following discussion occurred:
      “The Court: What did you want, larceny six?
      “Defense Counsel: Yes, Your Honor.
      “The Court: Why is that I wonder?
      “Defense Counsel: The value of the merchandise. If the jury felt there was a crime here, simple shoplifting—
      “The Court: I don’t have evidence of that, do you?
      “Defense Counsel: If the jury finds that—that there was no force used to take merchandise, but that the force used was just to escape and, in fact, there was nothing taken, then they could find easily a simple shoplifting.

        “The Court: I don’t think so, not under the facts of this case.
      “Defense Counsel: There is a lot of doubt—
      “The Court: There’s no doubt, whatsoever, about the state’s case. It’s a robbery, pure and simple; started out as a shoplifting and went sour once they got into an altercation. Did he leave with the product? Yes, he did.
      “Defense Counsel: He left with two bottles, unaccounted for, if they find that is true.
      “The Court: There is no evidence to the contrary. There has to be evidence of that in the case and there isn’t any. I couldn’t justify—sit here and tell this jury they could determine this was simply a shoplifting case. If that’s all we’re here for, we look foolish.”

       Wall testified that she saw the defendant stuffing packs of cigarettes into his shirt. The clerk from the liquor store testified that the bottles of liquor were missing from the store. Shaham testified to seeing both the cigarettes and the liquor bottles.

       An alternate or inconsistent theory of defense is permissible. See State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983).

       This testimony contradicted the state’s version of the crime. The defendant would be liable for the actions of an accomplice or coconspirator. See General Statutes § 53a-8; State v. Walton, 227 Conn. 32, 44, 630 A.2d 990 (1993).

       The court gave the following instruction as part of its final instructions: “On the Revis—Revis’ testimony, is that of an accomplice. If you believe his conduct in this case, whoever he was, he was an accomplice to that and as such in weighing the testimony of such a person who is a self-confessed criminal you should consider that fact. It may be you would not believe a person who has committed a crime as readily as you would believe a person of good character.
      “In weighing the testimony of an accomplice who not yet has been sentenced or whose case has not yet been disposed of or he’s been charged and he’s pleaded, you should keep in mind that he may in his own mind be looking for some favorable treatment or disposition in his own case. Therefore, he may have such an interest in the outcome of this case, his testimony may have been colored by the fact. You must look with particular care at the testimony of an accomplice. Scrutinize it carefully before you accept it.”

       The court specifically addressed Revis’ previous statement: “[Y]ou have a piece of evidence in there with you, the statement of Revis offered and I cautioned you at that time and told you the purpose of it. It is a prior consistent statement offered by the state only—only admissible and usually not admissible—only admissible when there is an attack upon the witness who does testify and there is an attempt to impeach him showing that he is motivated for some other reason.
      “And, in this case, he gave a statement implicating the accused in the offense and that during the pendency of his case there [were] questions put to the witness about what was going to happen to him and he conceded that he has pleaded guilty and expects ten years suspended after five and that his probationary term, whatever he had there, will be terminated when he is sentenced in this court. And, that such would be motivation for having given the defendant over to be the person involved in this offense with him.
      “I bring your attention to his statement, and is offered not for truth of the matters contained therein, but offered to show he had given a statement at a much earlier time and the word some used guardedly, in the context of this case earlier than anytime where he received what he perceived to be or someone—you may perceive as a favorable disposition for his conduct in this case. It is just offered as a prior consistent statement that he had given earlier. Such a witness may be rehabilitated and supported by showing he previously made a statement which is consistent with the present testimony in court.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JERRY THOMPSON
    (AC 15070)
    Foti, Schaller and Daly, Js.
    Argued June 6
    officially released September 23, 1997

      Richard M. Maraño, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), conspiracy to possess narcotics in violation of General Statutes §§ 53a-48 and 21a-279 (a) and interfering with a police officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress evidence and (2) denied his motion for a judgment of acquittal based on a claim of insufficiency of the evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 13,1994, at approximately 10 p.m., two Hartford police officers, Anthony Martinez and Patricia Beaudin, in response to reports that drugs were being sold in South Green Park in Hartford, set up a surveillance in an alleyway across from the park. In Martinez and Beaudin’s direct line of sight was a park bench approximately fifty feet away on which the defendant and Luis Ayala were sitting. Soon thereafter, Martinez and Beaudin witnessed an individual, known to them as being drug-dependent, approach the bench where the defendant was sitting. They witnessed the individual have a brief conversation with the defendant and then hand the defendant a piece of paper, which appeared to be money. They then witnessed the defendant put the piece of paper into his pocket, walk over to a planter approximately fifteen feet away and bend down and retrieve an item from the planter. While the defendant was at the planter, they witnessed Ayala get up from the bench, look around in all directions and then wave to the defendant to return to the bench. The defendant returned to the bench area and handed the individual the item that he had retrieved from the planter. The individual walked away and the defendant and Ayala returned to their original positions on the park bench. Within the next fifteen to twenty minutes, Martinez and Beaudin witnessed two more exchanges that, on the basis of their training and experience, they believed to be drug transactions.

Subsequently, Martinez and Beaudin got into their unmarked police car, drove around the block and entered the park, stopping just short of the bench where the defendant and Ayala were sitting. They ordered four other individuals in the park to stop and place their hands on the car. As the defendant and Ayala got up from the bench and started to walk away, the officers stopped them and told them to put their hands on the car. The officers then handcuffed the six individuals together for safety, called for assistance and then patted them down for weapons. During the patdown, Martinez discovered a “wad” of United States currency in the defendant’s pocket. Martinez took the currency out of the defendant’s pocket to investigate it, placed it on top of the cruiser and put the defendant’s hands on top of it. When the assisting police officers arrived, they placed the defendant and Ayala in the backseat of the cruiser. At that point, Beaudin began to take each individual’s identification, and Martinez proceeded to the planter from which he and Beaudin had witnessed the defendant retrieve what they believed to be drugs. In the planter, Martinez located a plastic bag containing a rock-like substance that was later confirmed to be crack cocaine. The crack cocaine and the currency were seized as evidence and the defendant and Ayala were placed under arrest.

Prior to the trial, the defendant filed a motion to suppress the crack cocaine and the currency claiming that he had been arrested without probable cause and that the evidence seized by the police constituted the fruits of an illegal search and seizure. At the suppression hearing, the state introduced the testimony of Martinez and Beaudin, who testified to the facts set forth previously. In making its ruling on the motion to suppress, the trial court stated: “[B]oth detectives who testified in this matter are experienced officers and have made a great many arrests in drug offenses, which would seem reasonable that that would at least give them some familiarity with the scenario—with a variety of scenarios to be sure, but the type of scenario that was displayed in the testimony. And it would seem reasonable to the court to be known to them from their prior experience. While I think one of the witnesses—or perhaps both—indicated that he or she didn’t know at the time of the incident, in August, 1994, that the customers, or the alleged customers, were drug addicts. At the time, it’s clear that they were people who were known to them and who were buyers and around the area of other drug hot spots as Officer Beaudin called it. The officers appeared to have an unobstructed view of both the defendant, Mr. Ayala, and the three alleged customers—drug customers—during this process and witnessed the defendant and testified they witnessed the defendant and Mr. Ayala be approached by the first person; that something was put into his hand; that he then got up and went over to the planter and took something out. Admittedly, they couldn’t tell exactly what it was in terms of seeing it to the point where they would know what it was. But it—but they saw that scenario develop. And with that person carrying something back to the person who approached them at the bench site; saying a few words, and then engaging in what appeared to be a transfer of something from the defendant to the alleged customer. It doesn’t seem unreasonable, at all, to this court, that experienced police officers would conclude that this was—reasonably conclude that this was a drug transaction. This scenario, that I’ve just briefly described, took place very quickly, apparently in a matter of seconds. And is strengthened by the fact that it was repeated three times while they were there conducting their surveillance. For all these reasons, the court finds probable cause for the arrest of this defendant. Therefore the motion is denied.”

I

The defendant claims first that the trial court improperly refused to grant his motion to suppress. In particular, he claims that the motion to suppress should have been granted because he was arrested without probable cause and because the crack cocaine and currency were seized in violation of his constitutional rights. The defendant failed, however, to seek an articulation of the trial court’s refusal to grant his motion to suppress. See Practice Book § 4051. In the absence of an articulation, we cannot address the issues the defendant raises on appeal because we do not have any findings or conclusions of law by the trial court on a number of important factors. Specifically, we do not have before us a finding by the trial court of when the valid arrest of the defendant occurred, at the point when he was initially detained or after the crack cocaine was found. We also do not have a finding of iyh.eth.er the defendant had a reasonable expectation of privacy in the planter in which the crack cocaine was found. Finally, we do not have a finding of whether the seizure of the currency occurred before or after the valid arrest. Because the record is inadequate, we decline to review this claim. See Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

II

The defendant claims next that the trial court improperly denied the defendant’s motion for a judgment of acquittal because the evidence adduced at trial was insufficient to sustain a verdict of guilty. Specifically, the defendant claims that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that the defendant was in constructive possession of the crack cocaine found in the planter. We are not persuaded.

“We employ a two part analysis in reviewing the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996); State v. Coleman, 35 Conn. App. 279, 293-94, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Alford, 37 Conn. App. 180, 184, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995).

“In order to prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. . . . Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) State v. Frazier, 39 Conn. App. 369, 378-79, 665 A.2d 142 (1995).

Here, the jury was offered evidence that the defendant knew of the presence of the cocaine and exercised control over it. Three known drug-dependent individuals approached the defendant in an area known for drug sales. Each individual briefly conversed with the defendant and then handed him a piece of paper that appeared to be currency. The defendant placed the piece of paper into his pocket, walked over to the planter and bent down and retrieved an object from the planter. The defendant then waited for Ayala to signal him, at which time he walked over to the individual and handed the individual the item that he had retrieved from the planter. When the police searched the planter, they found a plastic bag containing crack cocaine. By repeatedly receiving money from drug-dependent persons in a park noted for drug transactions, retrieving items from the planter, waiting for signals and then returning and handing items to these persons, the defendant explicitly demonstrated awareness of the presence of the cocaine and also exercised dominion and control over both the planter and the cocaine hidden therein. See State v. Thompson, 20 Conn. App. 290, 291-93, 567 A.2d 837 (1989); State v. Melillo, 17 Conn. App. 114, 117-18, 550 A.2d 319 (1988). On the basis of this evidence, we conclude that the jury ' reasonably could have found that the defendant was in constructive possession of the narcotics seized from the planter.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 4051 provides in relevant part: “A motion seeking . . . an articulation ... of the decision of the trial court shall be called ... a motion for articulation . . . .Any motion filed pursuant to this section shall state with particularity the relief sought. . . . The trial court may malm such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk. . . . The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section . . . shall be by motion for review under Sec. 4054. . .

       Practice Book § 4061 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review as provided in Sec. 4007.”


author: SCHALLER, J. LAVERY, J.,

text:
    JOHN J. PITCHELL v. CITY OF HARTFORD ET AL.
    (AC 16267)
    Foti, Lavery and Schaller, Js.
    Argued May 2
    officially released September 23, 1997

      Timothy Brignole, for the appellant (plaintiff).

      Henry C. Ide, for the appellee (defendant Gregory Sargis).
   Opinion

SCHALLER, J.

The plaintiff, John J. Pitchell, appeals from the judgment of the trial court dismissing his action against the defendant Gregory Sargis, a police officer in the city of Hartford, on the ground of insufficient service of process. The plaintiff also appeals from the decision of the trial court granting Sargis’ motion to open the default judgment entered on October 30, 1995. We affirm the judgment of the trial court.

The following facts are relevant to a determination of this case. The plaintiff, by writ, summons and complaint dated May 31, 1994, brought suit against Sargis, James F. Callan, also a Hartford police officer, and the city of Hartford (city). The plaintiff alleged, as to Sargis, that Sargis was negligent in failing to prevent Callan from shooting him in the course of an incident on June 19, 1987. The return date of the action was June 28, 1994. The plaintiff attempted to make service on Sargis under General Statutes § 52-59b (c) by having the sheriff leave a copy of the writ, summons and complaint with the secretary of the state and by sending a certified letter to Sargis at an address in Arizona where the plaintiff believed he was living. The certified letter was returned unopened with a notation “Return to Sender, No Forward Order on File, Unable to Forward.”

On June 28,1994, the law firm of Halloran & Sage filed an appearance on behalf of “all defendants,” namely, the city and the two individual defendants. Three days later, on July 1, 1994, Halloran & Sage filed an amended appearance, on behalf of the city alone. On July 5,1994, the plaintiff moved for a default for failure to appear as to Sargis and Callan. The motion was accompanied by a military affidavit dated July 5, 1994, indicating that Sargis was employed as a police officer for the city of Phoenix, Arizona, and resided there. That motion was denied on July 7, with a notation suggesting that he “move for a statutory continuance or for providing of actual notice of out-of-state defendant.”

On October 27,1994, the plaintiff moved for a default against Sargis for failure to appear. The motion was denied. Shortly thereafter, on November 9, 1994, Hal-loran & Sage moved to withdraw its appearance on behalf of Sargis and Callan. Halloran & Sage asserted, in essence, that the sole basis for the motion was that its original appearance on behalf of the two individuals had been an error because it would be a conflict of interest to represent them. That motion was accompanied by a certification from an attorney in the law firm that Sargis had been notified of the pendency of the motion and of his rights pursuant to Practice Book § 77 (d) by a notice mailed to him at 3202 West Bell Road, apartment 2225, Phoenix, Arizona. The trial court, Langenbach, J., granted the motion to withdraw on November 21,1994, relying on the documents provided by Halloran & Sage, which included the certification that Sargis had been notified at his address in Arizona. On August 7,1995, the plaintiff filed a motion for default for failure to appear against Sargis. In that motion, the plaintiff twice asserted that the original appearance by Halloran & Sage had been “in error.” Sargis was defaulted for failure to appear on August 11,1995. Judgment was rendered against him in the amount of $1,750,000 on October 30, 1995, after a hearing in damages. Notice of the judgment was sent to Sargis at the Arizona address on November 8, 1995. The notice was returned to the sender as undelivered by the postal service.

On February 23, 1996, Sargis filed a motion to open the judgment, which the trial court, Berger, J., granted on April 15,1996. On May 10,1996, Sargis filed a motion to dismiss alleging that he resided in Connecticut at the time of attempted service of the complaint and, therefore, the process was insufficient. On July 22,1996, the trial court, Langenbaeh, J., granted the defendant’s motion to dismiss. On August 13,1996, the plaintiff filed a motion for articulation of both Judge Berger’s April 15, 1996 ruling and Judge Langenbach’s July 22, 1996 ruling. Judge Berger denied the plaintiffs motion as “untimely.” On September 24, 1996, Judge Langenbaeh issued the following articulation: “The motion to dismiss was granted because the defendant Sargis was a resident of Connecticut and had been so since March of 1993. Therefore, the attempted service on him in June of 1994 when he had been a Connecticut resident for over one year by leaving a copy of the writ, summons and complaint with the Secretary of the State and by certified mail to an address in Arizona was ineffective.”

I

The plaintiff first claims that the trial court, Berger, J., improperly granted the motion to open the default judgment. The plaintiff failed to seek review of the trial court’s denial of the motion for articulation. Accordingly, there is no basis for our reviewing that decision. Because the plaintiff failed to provide us with an adequate record, we decline to afford review of his claim. See Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 553-56, 636 A.2d 1370 (1994); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 903, 634 A.2d 295 (1993); Practice Book §§ 4061, 4051, 4054 and 4183.

II

The plaintiff next claims that the trial court improperly dismissed the action. In support of his claim, the plaintiff argues that (1) Sargis was adequately notified because he was served at the address last known to the plaintiff and to the attorneys who appeared for him, (2) the law of the case established Sargis’ last known address, (3) any insufficiency was waived by the filing of an appearance by Halloran & Sage on behalf of Sargis, and (4) Sargis had an affirmative obligation to notify his counsel or other litigants of his whereabouts. We are not persuaded.

We first address the plaintiffs claim that Sargis was adequately notified because he was served at the address last known to the plaintiff and to the attorneys who appeared for him. In granting Sargis’ motion to dismiss, the trial court found that, at the time of attempted service of the complaint, Sargis was a resident of Connecticut and had been a resident of this state for more than one year. In support of this finding, the trial court had before it uncontested evidence in the form of an affidavit of Sargis that stated that he had returned to Connecticut in March of 1993 and was a resident of Connecticut in 1994 when the plaintiff attempted service pursuant to § 52-59b (c). The trial court also had before it the unopened certified letter marked “unable to deliver” that demonstrated that the attempted service by certified mail was ineffective. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Tyler’s Cove Assn., Inc. v. Middlebury, 44 Conn. App. 517, 527-28, 690 A.2d 412 (1997). The plaintiff has failed to show that the trial court’s findings as to Sargis’ Connecticut residency or the failure to serve him in Connecticut were clearly erroneous.

Moreover, it is undisputed that no service was made on the defendant in Connecticut and that the only attempted service was pursuant to § 52-59b (c) at an address in Arizona. “[General Statutes § 52-59b (c)] expressly applies only to nonresidents of this state.” White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16, 437 A.2d 833 (1980). Because § 52-59b (c) applies only to service on nonresidents, that statute did not authorize service in this case. The defendant, as a Connecticut resident, could be served effectively only in this state. The plaintiffs argument that Sargis was served at a last known out-of-state address is, therefore, unavailing.

We next address the plaintiffs argument that the law of the case established Sargis’ address to be in Arizona at the time of service. We are not persuaded. The crucial time for determining whether Sargis was a resident of Connecticut is the time of service. The allowance of the withdrawal by counsel, implying that Sargis had been properly notified of Halloran & Sage’s application to withdraw by a notice mailed to an Arizona address, occurred in November, five months after the attempted service. That determination, which was not challenged, related to Sargis’ whereabouts as of November, not June. The adequacy of notification of the application to withdraw is not an issue here. The trial court’s granting of the motion to withdraw did not constitute the law of the case with respect to the adequacy of the initial service.

We next address the plaintiffs argument that the appearance by Halloran & Sage constituted a waiver of Sargis’ claim of ineffective service. The motion to withdraw was premised on a mistake, namely, that Halloran & Sage “sought to represent only the city of Hartford and not the other defendants, Gregory Sargis and James F. Callan,” because that would “present a conflict of interest.” In allowing the withdrawal, the trial court did not file a memorandum of decision. Although the court failed to disclose its reasoning in permitting the withdrawal, we conclude that it acted on the basis of the sole ground asserted by the movant. See Matey v. Waterbury, 24 Conn. App. 93, 98, 585 A.2d 1260, cert. denied, 218 Conn. 908, 588 A.2d 1383 (1991). Although service on Sargis of the motion to withdraw was made by sending him a certified letter at an Arizona address, the trial court made no specific finding as to Sargis’ place of residence. Contrary to the plaintiffs assertion, the plaintiff failed to establish that Halloran & Sage, as counsel for the city, filed the initial appearance pursuant to authorization by Sargis or a duty to defend Sargis in this case. The trial court’s action granting the motion to withdraw premised on a mistaken appearance, in fact, operates to the contrary. Even the plaintiff conceded that the initial Halloran & Sage appearance on behalf of Sargis was in error. Under the circumstances of this case, we conclude that the mistaken appearance on behalf of Sargis does not constitute a waiver of inadequate service by Sargis. To determine otherwise would be contrary to concepts of waiver well established in the law of this state. See Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 418, 165 A. 211 (1933) (“[t]he basic conception of a waiver is that it is intentional; it cannot be established by a consent given under a mistake of fact”); Noethe v. Noethe, 18 Conn. App. 589, 594, 559 A.2d 1149 (1989) (trial court improperly concluded that clerical act of counsel’s signing judgment file, act alleged to have been mistaken, waived any underlying claims regarding judicial action alleged to have substantively changed rights embodied in earlier judgment).

Finally, we address the plaintiffs argument that Sargis had an affirmative obligation to notify his counsel or the plaintiff of his whereabouts. This argument was raised for the first time in the plaintiffs brief. “This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); see also State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993). Accordingly, we decline to review this claim.

Because the plaintiff has failed to demonstrate that the trial corut’s determinations that Sargis was a resident of Connecticut at the time of service and that he was not served in Connecticut were clearly erroneous, we conclude that the trial court properly determined that the attempted Arizona service was ineffective and, therefore, properly dismissed the action.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

LAVERY, J.,

dissenting. I disagree with the majority’s failure to find that the filing of an appearance by the law firm of Halloran & Sage on behalf of the defendant Gregory Sargis and Sargis’ failure to file a motion to dismiss for insufficiency of service within thirty days of the filing of the law firm’s appearance constituted a waiver of the claim that service of process was insufficient.

Practice Book § 142 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so . . . but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”

Practice Book § 144 provides in relevant part: “Any claim of . . . insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . within the time provided by Sec. 142.”

The return day in this case was June 28, 1994. The law firm of Halloran & Sage filed an appearance on June 28, 1994. On October 27, 1994, the plaintiff filed a motion for default against Sargis for failure to appear that was denied because Halloran & Sage had filed an appearance.

On November 9,1994, Halloran & Sage filed a motion to withdraw that was granted on November 21, 1994. On May 10, 1996, Sargis filed the motion to dismiss that is the subject of this appeal. On June 12, 1996, the plaintiff objected to the motion to dismiss giving as one of his reasons: “The defendant Sargis waived, through his attorney, Halloran & Sage, any defects in service of process.” The trial court granted the motion to dismiss on the basis of insufficiency of service of process. All of those facts are in the record.

Because Sargis, through his attorneys, filed no motion to dismiss within the thirty days of their filing of their appearance, there was a waiver of the insufficiency of process claim. This court held in Pickett v. T.A.C. Collections, Inc., 31 Conn. App. 909, 909-10, 625 A.2d 845 (1993), the following: “The record shows that the defendant’s appearance was filed on February 19,1992, and the motion to dismiss was filed on March 31, 1992. The motion to dismiss was filed more than thirty days after the filing of the defendant’s appearance. Under Practice Book §§ 142 and 144, the objection to personal jurisdiction is waived if a motion to dismiss is not filed within thirty days of the filing of an appearance.” The trial court should not have granted the motion to dismiss.

I agree with the majority that the motion to open granted by the trial court should be affirmed.

I would reverse the granting of the motion to dismiss and remand the case to the trial court with direction to deny the motion to dismiss and to proceed in accordance with the law.

       General Statutes § 52-59b provides in relevant part: “(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent ... (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act ....
      “(b) Where personal jurisdiction is based solely upon this section, an appearance does not confer personal jurisdiction with respect to causes of action not arising from an act enumerated in this section.
      “(c) Any nonresident individual . . . over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . personally. The process shall be served by the officer to whom the same is directed upon the secretary by leaving with or at the office of the secretary, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary. . . .”

       Practice Book § 77 (d) provides in relevant part: “Withdrawal of Appearance . . .
      “(d) Except as provided in subsections (a), (b) and (c), no attorney shall withdraw his appearance after it has been entered upon the record of the court without the leave of the court. No motion for such withdrawal shall be granted until the court is satisfied that reasonable notice has been given to the party or parties represented by the attorney and to other attorneys of record. A motion to withdraw shall include the last known address of any party as to whom the attorney seeks to withdraw his appearance and shall have attached to it a notice to such party advising him of the following: (1) the attorney is filing a motion which seeks the court’s permission to no longer represent the party in the case; (2) if the party wishes to be heard, he or she should contact the clerk’s office to find out the date and time of the hearing; (3) the party may appear in court on that date and address the court concerning the motion; (4) if the motion to withdraw is granted, the party should either obtain another attorney or file an appearance on his own behalf with the court and (5) if the party does neither, the party will not receive notice of court proceedings in the case and a nonsuit or default judgment may be rendered against such party. The attorney’s appearance for the party shall be deemed to have been withdrawn upon the granting of the motion without the necessity of filing a withdrawal of appearance.”

       This was the same Arizona address used in the initial service of the complaint.

       Practice Book § 4061 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review as provided in Sec. 4007.”
      Practice Book § 4051 provides in relevant part: “A motion seeking . . . an articulation ... of the decision of the trial court shall be called . . . a motion for articulation .... Any motion filed pursuant to this section shall state with particularity the relief sought. . . . The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk. . . . The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section . . . shall be by motion for review under Sec. 4054. . . .”
      Practice Book § 4054 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . .
      Practice Book § 4183 provides in relevant part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete or perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion or upon motion of any party, modify or vacate any order made by the trial court, or ajudge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”

       The plaintiffs claim that the trial court made insufficient findings of fact to support the decision to dismiss the action is without merit. The trial court did articulate its decision in response to the plaintiffs motion for articulation. The plaintiff failed to seek a further articulation or to move this court to review the articulation. Accordingly, the plaintiff has failed to provide a proper record for our consideration of this issue. Dime Savings Bank of Wallingford v. Cornaglia, supra, 33 Conn. App. 553-56; Holmes v. Holmes, supra, 32 Conn. App. 319; Practice Book §§ 4061, 4051, 4054 and 4183.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. JOHN O. LINDSTROM
    (AC 16023)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Argued January 16
    officially released September 23, 1997

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

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, John O. Lindstrom, appeals from a judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B).

The defendant claims that the trial court improperly (1) deprived the defendant of due process by denying his motion to suppress the victim’s pretrial identification of him, and subsequently allowing her to identify him in court, (2) admitted constancy of accusation evidence, (3) denied him access to drug and psychiatric records of the victim and (4) instructed the jury on reasonable doubt.

The jury reasonably could have found the following facts. On the evening of August 11, 1993, the victim drove to Hartford from her home in Wethersfield to purchase heroin. After purchasing and consuming heroin, she intended to drive home but found that she could not start her car. She began hitchhiking and a man later identified as the defendant offered her a ride, which she accepted. Instead of driving to Wethersfield the defendant drove through Hartford while holding a knife to the victim’s throat. The defendant eventually stopped at a vacant lot and threatened to kill the victim if she did not do as she was told. After he unsuccessfully attempted vaginal intercourse with the victim, the defendant compelled her to perform oral sex. Two hours later, the victim pretended that she wanted to be with the defendant and asked if he could take her to his home so she could shower. The defendant agreed. The victim jumped out of the defendant’s car at a stop light, ran into a convenience store, asked for a pen and, as the defendant drove away, wrote down the license plate number of the car he was driving. She then called the police.

I

The defendant first claims that the trial court improperly denied his motion to suppress the out-of-court identification of him by the victim because the procedure used to obtain that identification was unnecessarily suggestive and unreliable. He further claimed that any in-court identification based on it would lack an independent basis.

The following additional facts are relevant to this claim. Approximately two months after the assault, the victim was shown a photographic array in an attempt by the police to identify her assailant. Of the eight people depicted, the victim knew seven, one of whom was her husband. The defendant’s photograph was in the middle of the array and, upon seeing it and before looking at the remaining photographs, the victim immediately identified him as her attacker. The trial court found the identification procedure to be unnecessarily suggestive but reliable under the totality of circumstances. The trial court denied the motion to suppress and allowed the in-court identification.

The defendant claims that the denial of the motion to suppress violated his right to due process and a fair trial. “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. ... To succeed on the motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Askew, 44 Conn. App. 280, 283-84, 688 A.2d 1346 (1997). A reviewing court need reach only the second prong of this test if the trial court has made a finding that the original identification procedure was unnecessarily suggestive. See State v. Payne, 219 Conn. 93, 107, 591 A.2d 1246 (1991). In analyzing the totality of the circumstances, the reviewing court, after determining that the original identification procedure was unnecessarily suggestive, must determine if it was so much so as to render it conducive to irreparable misidentification. If and only if the original identification procedure was so suggestive as to be conducive to irreparable misidentification should the subsequent in-court identification be excluded. See State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986); State v. Askew, supra, 283-84.

The factors used to determine whether an unnecessarily suggestive photographic array is nevertheless reliable are set forth in State v. Felder, 39 Conn. App. 840, 668 A.2d 382, cert. denied, 236 Conn. 906, 670 A.2d 1306 (1996). “If a court determines that an identification procedure was unnecessarily suggestive, the court may determine that the identifications are nevertheless reliable and thus admissible. State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). In Manson v. Brathwaite, [432 U.S. 98, 114-15, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)], the United States Supreme Court set forth the following factors for determining whether an identification is rehable although the identification procedure was unnecessarily suggestive: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty the witness demonstrated at the confrontation; and (5) the time between the crime and the confrontation. We weigh the corrupting effect of the suggestive identification against these factors. Our Supreme Court has adopted the factors set forth in Manson as those to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure. State v. Ramsundar, supra, 10-11. Where the factual basis of the court’s decision is challenged, we must determine whether the facts that have been found are supported by the evidence or whether, in light of the evidence and the pleading in the whole record, those facts are clearly erroneous. State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).” State v. Felder, supra, 846-47.

On the basis of the evidence, the trial court found that the victim had ample opportunity to view her assailant in that he did not cover his face or disguise it in any way, the car light went on when she entered the car, there were streetlights on as they drove throughout the city, her vision was not impaired and she was close to her assailant’s face and observed him over a period of hours. The trial court further found that the degree of the victim’s attentiveness was evident from the circumstances of her entering a strange car and therefore focusing on the driver’s face and appearance, and her being a victim whose sensory perceptions would be acute because of her situation. Additionally, the court found that the victim’s description of her attacker was detailed and consistent throughout the investigation, that the victim demonstrated a high level of certainty at the confrontation and that the time between the crime and the confrontation was not so inordinately long as to make the identification unreliable.

After reviewing the facts of this case, we conclude that the trial court was correct in denying the motion to suppress. Despite the fact that the trial court found the photographic array to be unnecessarily suggestive, the trial court was correct in not excluding the in-court identification because, under the totality of the circumstances, there was not a risk of irreparable misidentifi-cation.

II

The defendant’s second claim is that the trial court’s admission of constancy of accusation evidence by three police officers violated his right to due process. We decline to review this claim because the defendant failed to preserve it.

The following additional facts are relevant to our resolution of this claim. Three police officers testified for the state at trial. Detective Luisa St. Pierre testified about the details of the sexual assault provided to her by the victim on October 13, 1993, the day the victim was shown the photographic array. Officer Rocco Fier-ranti and Officer Kelly Gerent testified about their conversations with the victim, which occurred immediately after the sexual assault. The defendant cross-examined the officers. The defendant did not object to the three officers’ testimony at trial. The defendant does not directly concede that he failed to preserve his claim, and requests this court on appeal to review his claim according to State v. Troupe, 237 Conn. 284, 293-306, 677 A.2d 917 (1996). In doing so, he urges this court to abandon the constancy of accusation doctrine. In the alternative, he requests us to review his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error doctrine.

The defendant argues that his claim is entitled to Golding review because the testimony of the three constancy of accusation witnesses violated his constitutional rights to confrontation and equal protection. The defendant’s claim, however, fails the second prong of Golding because it is not of constitutional magnitude. Our Supreme Court has held that the constancy of accusation doctrine does not violate the right to confrontation. “Because constancy of accusation evidence is not admissible unless the victim has testified, and is subject to cross-examination, concerning the crime and the identity of the person or persons to whom the victim has reported the crime . . . we reject the defendant’s contention that the constancy of accusation doctrine violates the sixth amendment.” (Citations omitted.) State v. Troupe, supra, 237 Conn. 293. The constancy of accusation doctrine also does not implicate the right to equal protection because it applies equally to male and female victims. See State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994).

Alternatively, the defendant urges us to review his claim under the plain error doctrine. “Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Citations omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 462, 696 A.2d 380 (1997).

The testimony of the three police officers corroborated the victim’s testimony. The defendant cross-examined the witnesses. We can find nothing that occurred at trial that affected the integrity of and confidence in the judicial proceedings.

Ill

The defendant’s third claim is that the trial court improperly denied him access to some of the victim’s medical and psychological records. The following facts are relevant to our resolution of this claim. The defendant subpoenaed the victim’s medical records concerning her drug use and a suicide attempt. After the defendant’s direct examination of the victim, the court permitted the defendant to voir dire the victim outside the presence of the jury on the issues of her drug use and a suicide attempt in order to prove that the medical records were relevant for impeachment purposes. The victim testified during voir dire that she is a heroin addict and ingested heroin on the night of the assault. She also testified that she had sought treatment for her drug use as well as for a suicide attempt that occurred in 1994.

On the basis of that testimony, the trial court found that a failure to produce the records could impair the defendant’s ability to impeach the victim. After obtaining the witness’ waiver of confidentiality, the trial court inspected the records in camera, and thereafter released certain documents that would relate to the victim’s ability to perceive and relate the truth. These included records from Hartford Hospital relating to the suicide attempt, records from both the Hartford Dispensary and the Reid Treatment Center pertaining to her heroin addiction, and records from UConn Medical Center pertaining to both heroin and cocaine addiction. The court admitted these records as exhibits at trial and the defendant cross-examined the victim on them. He also called an expert witness who testified as to the effect of heroin, cocaine and Xanax on a person’s ability to perceive the truth. The remaining medical records were sealed by the court.

The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion. “ ‘The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997).

The defendant claims that the trial court abused its discretion when it denied him access to all of the victim’s medical records and that, therefore, his constitutional right to confrontation was violated. The trial court in this case followed the well established procedure for determining whether medical records should be used for purposes of impeachment. “Th[at] procedure reflects a deliberate and careful balancing of the defendant’s right to confrontation and cross-examination against the public policy in preserving confidentiality in such records.” State v. Pratt, 235 Conn. 595, 607-608, 669 A.2d 562 (1995).

In this case the defendant sought to impeach the victim on the basis of a decreased perception attributable to the use of drugs. The trial court allowed the defendant access to the victim’s medical records regarding her drug use, and he was able to cross-examine her on them. In addition, he presented an expert who testified on the effects of drugs on perception. “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Barrett, 43 Conn. App. 667, 675, 685 A.2d 677, cert. denied, 240 Conn. 923, 692 A.2d 817 (1997). We can see no violation of the defendant’s right to confrontation when he was able to question the victim on all of the subjects that he proposed to the court as necessary fields of inquiry for impeachment purposes.

It is axiomatic that the right to confrontation is not absolute. State v. Wilkes, 236 Conn. 176, 183, 671 A.2d 1296 (1996). “The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . The constitution does not require that a defendant be permitted to present every piece of evidence he wants.” (Citation omitted; internal quotation marks omitted.) State v. Barrett, supra, 43 Conn. App. 676. We conclude, in light of the procedure used by the court and our review of the records, that the court did not abuse its discretion in denying access to the portion of the records not made available to the defendant. Under the circumstances of this case, we find that the defendant’s right to confrontation was not violated.

IV

The defendant’s fourth and final claim is that the trial court’s instruction to the jury on reasonable doubt was improper. The defendant takes issue with the following portion of the trial court’s instruction: “[I]t is a doubt for which a reasonable person after all of the evidence in the case has been analyzed and presented can give a valid reason. . . . Reasonable doubt is the kind of doubt upon which reasonable persons such as yourselves in the more serious affairs of your own lives would hesitate to act.” The defendant filed a request to charge with the court, but did not make any objection when the court used its own instruction. Although the defendant’s claim is unpreserved, we review it pursuant to State v. Golding, supra, 213 Conn. 239-40, because it implicates the defendant’s constitutional rights.

In State v. Ellis, 232 Conn. 691, 657 A.2d 1099 (1995), our Supreme Court upheld a nearly identical instruction. The Ellis court wrote of this type of instruction, “[w]e have repeatedly and consistently upheld identical or substantially similar instructions on reasonable doubt. ... In our previous cases, we concluded that this instruction did not decrease the state’s burden of proof when viewed in the context of the charge as a whole. ... In this case, the jury charge, taken as a whole, presents an accurate definition of proof beyond a reasonable doubt. . . . [There is] no compelling reason to depart from this long line of precedent and we therefore decline to do so.” (Citations omitted; internal quotation marks omitted.) Id., 705.

The defendant’s claim is no different from that presented in Ellis. We, therefore, conclude that the instruction was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.

       Acting in compliance with General Statutes § 54-86e, we treat the name of the victim as confidential. In accordance with that statute, it has been made known to the defendant.

       We note that the defendant was allowed to introduce the eight photographs used in the array as a full exhibit in his case-in-chief.

         We note that our Supreme Court has modified the constancy of accusation doctrine. See State v. Troupe, supra, 237 Conn. 304. Even if we were to review the defendant’s claim substantively, we would not have the authority to deviate from this recent modification.

       “ ‘[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.’ State v. Golding, supra, 213 Conn. 239-40.” State v. McDougal, 241 Conn. 502, 523 n.15, 699 A.2d 872 (1997).

       The procedure to be followed by trial courts in determining whether a defendant should have access to a victim’s confidential medical records is delineated in State v. D'Ambrosio, 212 Conn. 50, 561 A.2d 422, cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1989). The trial court, after finding that the defendant has made a showing that withholding the records would impair his right to impeach the victim, and after obtaining the victim’s permission, must analyze the records in camera for relevancy. If the trial court determines that any portion of the records is probative of the victim’s ability to relate the truth or to observe, recollect and narrate relevant occurrences, then the court must obtain the further waiver of the victim to release those records to the defendant. See id., 58. The trial court in this case complied with this procedure.

       We note that the defendant is not aware of the contents of the sealed portion of the victim’s medical records and, therefore, does not know if the remainder of the records would even be relevant. “A criminal defendant does not have a right to conduct a general fishing expedition into a witness’ privileged records. State v. Januszewski, 182 Conn. 142, 172, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).” (Internal quotation marks omitted.) State v. Pratt, supra, 235 Conn. 595.

       In State v. Schiappa, 44 Conn. App. 731, 739, 692 A.2d 820 (1997), we found that a defendant’s unpreserved claim of an improper jury instruction implicated due process rights to an adequately instructed jury and therefore merited Golding review.

       The instruction in Ellis was as follows: “ ‘A reasonable doubt is a doubt for which a valid reason can be assigned. . . . It is . . . such a doubt as in the serious affairs which concern you in your everyday life you would pay some strict attention to.’ ” State v. Ellis, supra, 232 Conn. 705.