author: PETERS, J.

text:
    JOHN KINDL, TEMPORARY ADMINISTRATOR (ESTATE OF RAYMOND PAGNI) v. DEPARTMENT OF SOCIAL SERVICES
    (AC 21918)
    Lavery, C. J., and Bishop and Peters, Js.

      Argued February 15
    officially released May 7, 2002

      Thomas J. Riley, with whom was Shawn L. Rutchick, legal intern, for the appellant (plaintiff).

      Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Opinion

PETERS, J.

The right to take an appeal from the decision of an administrative agency is purely statutory. General Statutes § 4-183 (c) specifies the manner in which, to take an appeal, an administrative appellant must serve process on the agency in question. In the absence of proper service of process, the Superior Court must dismiss the appeal because it lacks subject matter jurisdiction. Practice Book § 10-33. The only issue in this case is whether there are any circumstances under which an administrative appeal can go forward despite partial noncompliance with the statute. The issue arises in the context of service of process by someone who had no statutory authority to do so. Unlike the trial court, we conclude that this defect in the service of process did not deprive the trial court of subject matter jurisdiction. Accordingly, we reverse the judgment and remand the case for further proceedings.

The plaintiff, John Kindi, is the temporaiy administrator of the estate of Raymond Pagni. He sought to appeal from a decision of the defendant department of social services that had turned down his request for reimbursement of certain medical expenses incurred by Pagni.

The defendant responded to the plaintiffs appeal on its merits. Because it filed no motion to dismiss, it waived any claim of lack of personal jurisdiction. See Practice Book § 10-32; Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999); Knipple v. Viking Communications, Ltd., 236 Conn. 602, 605, 674 A.2d 426 (1996); Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 550-51, 610 A.2d 1260 (1992); United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985).

The defendant’s failure to file a motion to dismiss was not, however, a waiver of a claim of lack of subject matter jurisdiction. That claim properly may be raised at any time by the parties or by the court. Practice Book § 10-33; Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). “[WJhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case . . . .” (Internal quotation marks omitted.) Zoning Commission v. Fairfield Resources Management, Inc. 41 Conn. App. 89, 103, 674 A.2d 1335 (1996), citing Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). In this case, the trial court, sua sponte, raised the question of subject matter jurisdiction.

The court concluded that it lacked subject matter jurisdiction because § 4-183 (c) requires service of process to be made either by a “proper officer” or by an “indifferent person.” It is undisputed that, in this case, service on the defendant was made by an employee in the office of the plaintiffs counsel. The employee was neither a “proper officer” nor an “indifferent person.” It is equally undisputed that, in every other respect, service met the requirements of the statute. The defendant received proper appeal papers within the time specified by the statute. The defendant has not claimed that it was prejudiced by the fact that process was served by someone who was not an “indifferent person.”

The court held that § 4-183 (c) should be construed strictly so that any deviation from the statutory requirements for an administrative appeal automatically deprived the court of subject matter jurisdiction to hear the appeal. In effect, the court equated the failure to serve process by an “indifferent person” with a failure to serve process at all.

In his appeal to this court, the plaintiff challenges the validity of the trial court’s strict construction of § 4-183 (c). Because a question of statutory construction raises an issue of law, our review is plenary. See, e.g., State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (2002); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995); Masko v. Wallingford, 67 Conn. App. 276, 280, 786 A.2d 1209 (2001).

The scope of our plenary review is governed by well established principles. “[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). In undertaking that plenary review in this case, we are mindful of the principle that legislation is to be construed in light of a strong presumption in favor of jurisdiction. See, e.g., Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001); Banks v. Thomas, 241 Conn. 569, 582-83, 698 A.2d 268 (1997); Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001).

In his argument for reversal, the plaintiff contends that the trial court’s construction of § 4-183 (c) was improper because it ran counter to the policy behind the statute as that policy has been interpreted by our Supreme Court. The defendant argues, to the contrary, that numerous Connecticut precedents have adopted a strict construction of § 4-183 (c). Such a construction is especially appropriate, in its view, because the use of the word “shall” demonstrates the intent of the legislature that compliance with each of the stated requirements for service of process is mandatory. We agree with the plaintiff.

STATUTORY TEXT

Construction of a statute starts with an examination of the statutory text. In relevant part, § 4-183 (c) describes service of an administrative appeal as follows: “Service of the appeal shall be made by . . . (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions . . . .”

Contrary to the position taken by the defendant, the legislature’s use of the word “shall” is not sufficient to make compliance with this aspect of the statute mandatory. “While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous . . . our past decisions have indicated that the use of the word shall, though significant, does not invariably create a mandatory duty. ... In order to determine whether a statute’s provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute’s essential purpose. . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. ... A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply. . . . Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory.” (Citations omitted; internal quotation marks omitted.) State v. Trahan, 45 Conn. App. 722, 730-31, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997); see also Martinez v. Dept. of Public Safety, 258 Conn. 680,685,784 A.2d347 (2001). Applying Trahan to the facts of this case, we conclude that the use of “shall” in this statute, in all likelihood, indicates an intent that the requirement of service by an “indifferent person” be directory rather than mandatory.

STATUTORY POLICY

In the absence of other illuminating language in the text of § 4-183 (c), we turn to the statute’s legislative history and the circumstances surrounding its enactment and amendment. That history was comprehensively reviewed and explained in Bittle v. Commissioner of Social Services, 249 Conn. 503, 734 A.2d 551 (1999), a case in which the question was whether service through the use of certified mail was timely when it was mailed, but not delivered, within the statutory period for such service.

In Bittle, the court read the statute’s legislative history as demonstrative of a legislative intent “to enhance rather than constrain” the rights of an administrative appellant. Id., 506-507. Amendments subsequent to the enactment of the statute were designed to “simplify administrative procedures in order to make the administrative process easier, and thus more practically useful to the public.” Id., 514. The 1988 amendment of § 4-183, for example, was intended to “greatly enhance the administrative practices in the state of Connecticut and enhance them from the point of view of the consumer, the public.” (Internal quotation marks omitted.) Id., 513, citing 31 S. Proc., Pt. 7, 1988 Sess., p. 2481, remarks of Senator James H. Maloney.

In light of this unbroken legislative history, the court in Bittle concluded that the forty-five day window of opportunity to serve process was not closed by a short delay in receipt of mail service by certified mail. The appropriate date by which to measure the timeliness of service, the court held, was the date of the postmarking of the relevant appeal papers. Id., 515. Section § 4-183 (c), as it then read, neither forbade nor authorized the service that the court found to be sufficient.

The legislative policy on which Bittle relied has obvious bearing on the resolution of this case. The defendant claims, however, that Bittle is distinguishable because that case involved the timeliness of service, while this case concerns the manner of service. It is hard to see why a decision primarily based on legislative policy is as fact bound as the defendant would have it be. It is hard to find precedential cases that are squarely on all fours with cases that are litigated later. At the very least, Bittle counsels against a strict construction of § 4-183 (c) that would automatically impair the Superior Court’s subject matter jurisdiction because of any and every deviation from the text of the statute. That caution applies in this case, even though timeliness of service is not at issue.

We conclude, therefore, that the legislative history of § 4-183 (c) is an important guidepost to the policy considerations that govern our decision in this case. The judgment rendered by the trial court is not consistent with that history.

PREJUDICE

In addition to its examination of legislative policy and history, Bittle also considered the significance of the conceded fact that the defendant was not prejudiced by the short delay occasioned by the mailing, rather than the receipt, of appeal papers. It read § 4-183 (c) conjointly with § 4-183 (d), citing Tolly v. Dept of Human Resources, 225 Conn. 13, 28-29, 621 A.2d 719 (1993). Bittle v. Commissioner of Social Services, supra, 249 Conn. 521-22 & n.14. The court noted that “Section 4-183 (d) provides a standard for dismissing appeals when parties other than agencies are not served, or are served with defective papers. This statutory standard is met upon a showing of actual prejudicial consequences stemming from a failure of service . . . .” Id., 521-22. In light of that standard, the court held that it could not “as a matter of public policy, raise a jurisdictional barrier against appellants for failing to deliver appeal documents to interested parties within the time prescribed by § 4-183 (c) . . . Id., 522.

In a footnote, Bittle elaborated on the relationship between § 4-183 (c) and (d). “There is an apparent conflict between subsections (c) and (d) of § 4-183 with respect to the legal consequences associated with the failure of an appellant to serve the agency. Section 4-183 (c) provides that ‘failure to make . . . service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. . . .’The law revision commission in elaborating on the application of subsection (c) of § 4-183 stated: ‘Failure to serve parties other than the agency that rendered the final decision within the forty-five days is not a jurisdictional defect. Such failure to serve does, however, subject the appeal to dismissal on a showing of prejudice.’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., p. 385; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1988 Sess., p. 264, remarks of Steve Frazzini, executive director of the Hartford County Legal Aid Society .... Section 4-183 (d) provides, however, that ‘[i]f the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.’ ... In Tolly v. Dept, of Human Resources, supra, 225 Conn. 28-29, we resolved this apparent conflict, and harmonized the two subsections of § 4-183 by concluding that a complete failure to serve the agency is the kind of defect in the service that deprives the court of subject matter jurisdiction; whereas, a defect in the papers effecting service makes the appeal subject to dismissal upon a showing of prejudice to the agency.” (Emphasis in orginal.) Bittle v. Commissioner of Social Services, supra, 249 Conn. 522 n.14.

Tolly v. Dept, of Human Resources, supra, 225 Conn. 13, on which Bittle relied, was a case in which service, although timely and properly served, was defective in that the appeal papers did not include a citation. Tolly held that this defect did not implicate the jurisdiction of the Superior Court unless the agency was prejudiced by the less than perfect manner of service. Id., 28-29. In the absence of a showing of prejudice, Tolly overturned a Superior Court dismissal of the appeal because the absence of a citation was not the equivalent of a “failure to make service at all within the applicable time period . . . .” Id., 28. Although § 4-183 (c) does not address prejudice, the court invoked the prejudice provision contained in § 4-183 (d).

The defendant challenges the propriety of a linkage between subsections (c) and (d) of § 4-183. It claims that the prejudice provision in § 4-183 (d) is irrelevant because it applies only to defective service on a party other than an agency. That argument is addressed to the wrong court. We are bound by our Supreme Court’s decisions in Bittle and Tolly, which took a broader view of § 4-183 (c) and (d) than that which the defendant espouses. Indeed, this court followed Tolly in Klopp v. Commissioner of Income Maintenance, 32 Conn. App. 335, 337, 630 A.2d 1358 (1993).

Neither Bittle nor Tolly gives carte blanche to an administrative appellant to ignore the service requirements of § 4-183 (c) entirely. The defendant argues that the appeal in this case was properly dismissed in light of other cases in which our courts have required strict compliance with § 4-183 (c).

In many of the cases that the defendant cites, the appeal was nonconforming because there was a total failure to serve a person entitled to service. Those were the facts of Gadbois v. Planning Commission, 257 Conn. 604, 608, 778 A.2d 896 (2001), Redding v. Connecticut Siting Council, 45 Conn. App. 620, 623, 697 A.2d 698, cert. denied, 243 Conn. 920, 701 A.2d 343 (1997), Ertel v. Carolhers, 34 Conn. App. 18, 21, 639 A.2d 1055 (1994), and Board of Educations. Local 1282, 31 Conn. App. 629, 632, 626 A.2d 1314, cert. granted, 227 Conn. 909, 632 A.2d 688 (1993) (appeal withdrawn August 15, 1995).

The defendant also cites Tamopol s. Connecticut Siting Council, 212 Conn. 157, 162-63, 561 A.2d 931 (1989). In that case, the defect of service was the then unauthorized service of process by certified mail rather than by “in hand” service or abode service. Invoking the principle of strict construction, the Supreme Court concluded that this deviation from the prescribed rules deprived the trial court of subject matter jurisdiction. With respect to the specific facts of Tamopol, its ruling was superseded by the 1988 amendment of § 4-183 (c). Nonetheless, the case has often been cited for the general principle of strict construction on which it relied. See International Brotherhood of Police Officers, Local 564 v. Jewett City, 234 Conn. 123, 139, 661 A.2d 573 (1995); McQuillan v. Dept, of Liquor Control, 216 Conn. 667, 670, 583 A.2d 633 (1990); Hefti v. Commission on Human Rights & Opportunities, 61 Conn. App. 270, 274, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001); Ertel v. Carothers, supra, 34 Conn. App. 21; Board of Educations. Local 1282, supra, 31 Conn. App. 632. Indeed, it was cited for that purpose in Tolly v. Dept, of Human Resources, supra, 225 Conn. 27.

The defendant argues that Tamopol is particularly compelling because, as in this case, the defect in service was a defect in the manner in which service was made. Presumably, in Tamopol, as in this case, the agency received proper appeal papers within the time limitations specified by statute.

It is equally important, however, to note that Tamopol was decided before our Supreme Court, in Tolly and Bittle, undertook a more nuanced analysis of § 4-183 (c). The principle enunciated by these later cases differentiates between defects in service that constitute a total failure to serve process and defects that are less egregious. For the latter category, unless prejudice is shown, dismissal of an administrative appeal is not automatic.

We must decide, therefore, whether, in the absence of a showing of prejudice, the defect in the service of process in this case was the equivalent of a total failure of service of process. We conclude that it was not.

If the failure to include a citation in the appeal papers does not deprive a trial court of subject matter jurisdiction, as Tolly held, we cannot come to a different conclusion in the case of service by a person who was not authorized to do so. To the extent that there is a substantive distinction between Tolly and this case, subject matter jurisdiction is easier to sustain in this case. Here the defendant, in timely fashion, received all the required documents to which it was entitled, while in Tolly, the agency did not receive the citation. In neither case was the defect in service the equivalent of “a failure to make service at all within the applicable time period . . . .” See Tolly v. Dept. of Human Resources, supra, 225 Conn. 28.

The only possible distinction between the two cases is that Tolly concerned service of process by mail, while this case involves personal service. That is a distinction without a difference.

We conclude, therefore, that the trial court improperly dismissed the plaintiffs appeal. The text of § 4-183 (c), its legislative history and its construction by our Supreme Court persuade us that, in the circumstances of this case, in the absence of a showing of prejudice, the trial court had subject matter jurisdiction to hear the plaintiffs appeal on its merits. The result we have reached furthers the legislative intent to simplify administrative appeals so they are “easier, and thus more practically useful to the public.” Bittle v. Commissioner of Social Services, supra, 249 Conn. 514.

AGGRIEVEMENT

Even if the trial court was mistaken in its interpretation of § 4-183 (c), the defendant maintains that its judgment should be affirmed on the alternate ground that the plaintiff failed to prove that he was aggrieved by the administrative decision that underlies this appeal. Before the trial court, this issue was pleaded and briefed, but not decided. The court therefore did not have the opportunity to evaluate the factual sufficiency of the plaintiffs claim of aggrievement.

This claim is premature. “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it. See, e.g., Med-Trans, Inc. v. Dept, of Public Health & Addiction Services, 242 Conn. 152, 159, 699 A.2d 142 (1997); Bakelaar v. West Haven, [193 Conn. 59, 65, 475 A.2d 283 (1984)]. We do not disturb the trial court’s conclusions on appeal unless those conclusions are unsupported by the subordinate facts or otherwise violate law, logic or reason. Kelly v. Freedom of Information Commission, 221 Conn. 300, 308, 603 A.2d 1131 (1992); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 309, 592 A.2d 953 (1991).” Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002). Without a factual finding on aggrievement by the trial court, we have no record upon which to adjudicate the aggrievement issue on appeal.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The legislature has taken a similar position with regard to zoning appeals. See Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), aff'd, 206 Conn. 374, 538 A.2d 202 (1988), modified by Public Acts 1988, No. 88-79, § 1 (b); see also Gadbois v. Planning Commission, 257 Conn. 604, 607-608, 778 A.2d 896 (2001).

       The legislature has now amended § 4-183 (c) to incorporate the holding in Bittle. See Public Acts 1999, No. 99-39.

       General Statutes § 4-183 (d) provides: “The person appealing, not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit, or the state marshal’s return, stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision, and, if service was not made on a party, the reason for failure to make service. If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”

         “A proper citation . . . requires not only the signature of a competent authority, such as a commissioner of the Superior Court, but the direction to a competent authority, such as a sheriff, constable or indifferent person, to summon the defendant to appear in court.” Tolly v. Dept. of Human Resources, supra, 225 Conn. 19.

       As a general matter, our courts often look to related statutes on the same topic for interpretation of the particular statute at issue. See, e.g., Dept, of Social Services v. Saunders, 247 Conn. 686, 698, 724 A.2d 1093 (1999), citing Conway v. Wilton, 238 Conn. 653, 663-64, 680 A.2d 242 (1996); see also State v. Ehlers, 252 Conn. 579, 590, 750 A.2d 1079 (2000).

       See Klopp v. Commissioner of Income Maintenance, supra, 32 Conn. App. 338-39.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MIGUEL SANCHEZ
    (AC 22340)
    Lavery, C. J., and Mihalakos and McDonald, Js.

      Argued January 9
    officially released May 7, 2002

      Kirstin B. Coffin, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Miguel Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress a witness’ out-of-court identification that was made from a photographic array, (2) made several evidentiary rulings that either allowed the state to introduce damaging evidence or limited his ability to present a defense and (3) denied his motion for a judgment of acquittal as to the murder conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 9,1995, the defendant was on the front stoop of 57 Center Street in Hartford, where he lived in an apartment with his grandparents. The victim, Jose Gonzalez, who was on a bicycle, began arguing with him. The victim threw a bottle through the front door of the building, shattering the glass portion of the door. The defendant ran into the vestibule and loaded a .22 caliber gun. He came out of the building and fired three shots at the victim. One bullet entered the back of the victim’s skull, killing him instantly.

The police arrived at the scene and spoke to members of the crowd that had formed around the victim. On the basis of the police interviews, the defendant quickly emerged as the only suspect. He was not apprehended until June 11, 1997, when he was located and arrested in a criminal court in Manhattan, where he was using an alias.

The defendant was tried before a jury on the charges of murder and carrying a pistol without a permit. He was found guilty of both charges and is serving a total effective term of sixty years on those charges and on a sentence enhancement on the murder charge in accordance with General Statutes § 53-202k. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The defendant claims that the court improperly denied his motion to suppress a witness’ testimony that identified him from a photographic array. He argues that the court improperly found that the identification procedure was not unnecessarily suggestive and claims that it was unreliable under the totality of the circumstances. We disagree because we conclude that the defendant did not show that the identification procedure was unnecessarily suggestive.

The court reasonably could have found the following facts during the hearing on the motion to suppress. Shortly before the shooting, Juan Estronza was riding north on Center Street in a car driven by Harry Perez. He saw the victim, with whom he was “real tight,” and heard him shouting, “f— that King, look at that King over there.” Estronza asked Perez to turn around, and Perez obliged, parking slightly in front of 57 Center Street. Estronza saw that the victim was arguing with the defendant and saw the defendant enter the building. Shortly after, he heard the smash of glass breaking. Estronza saw the defendant in the vestibule, where it looked as if he were loading a gun. Estronza testified that when he saw the defendant emerge from the apartment building pointing the gun, he told Perez to “peel off.” Perez obliged and Estronza heard gunshots as they drove away.

Later that night, Estronza was brought to the Hartford police station and questioned by Detective Peter Goetz about what he had seen. During an undetermined period of questioning, Estronza claimed that because he was not wearing his glasses and because of the distance between him and the individual with the gun, he could not identify that individual. Goetz left the room and Detective Jack Leitao entered with a photographic array. Leitao showed it to Estronza and asked him whether the victim would have cooperated with the police if Estronza had been shot. Estronza then selected the defendant’s photograph.

During the trial, the defendant sought to suppress any identification testimony from Estronza on the grounds that the identification procedure was unnecessarily suggestive and the resulting identification was unreliable. The court found that the identification procedure was not unnecessarily suggestive and denied the motion to suppress in a brief oral decision.

“Because the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 553, 747 A.2d 487 (2000).

“In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. . . . Generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” (Internal quotation marks omitted.) Id.; see also State v. Reid, 254 Conn. 540, 554-56, 757 A.2d 482 (2000).

In claiming that the identification procedure was unnecessarily suggestive, the defendant directs us to certain testimony at the suppression hearing from Estronza and Goetz. He notes that Estronza testified that he had told Goetz at first that he could not identify the individual with the gun because of the distance he was from the event and because he was not wearing his glasses, but that Goetz would not allow him to leave. The defendant also notes that Goetz testified that he continued to question Estronza and would have “ke[pt] asking him until I [had] hit [a] dead end. I don’t think that I ever hit a dead end . . . .” The defendant concludes in his reply brief that Goetz implied “that he would question any witness until that witness made some identification” (emphasis in original) and that Estronza was coerced into choosing the defendant’s photograph from the array.

For us to reach the conclusion that the defendant asks us to reach, we would have to ignore much of the rest of the record. Estronza testified that although he told Goetz that he could not identify the individual with the gun, he said that was not because of an inability to identify the defendant, whom he had known since elementary school, but “[b]ecause I didn’t want to get involved at all.” He also testified that Goetz “wasn’t pressuring me to speak at all, he was just speaking to me.” Similarly, Estronza further testified that when Leitao showed him the array, he did not suggest which photograph to select, but that Estronza identified the defendant as the shooter after Leitao asked if the victim would have been cooperative if Estronza had been the one who was shot.

Not only do we conclude that the police action was not unnecessarily suggestive, the array itself also was within constitutional bounds. The array included eight photographs of individuals, which has long been held to be “a nonsuggestive and constitutionally acceptable practice, in the absence of any unfairness or other impropriety in the conduct of the exhibit.” (Internal quotation marks omitted.) State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). All photographs were of men with facial hair and skin coloring similar to that of the defendant. See State v. Hafner, 168 Conn. 230, 239, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975). Although the defendant alleged at trial that he appeared to be closer to the camera in his photograph than did six of the eight individuals in the array, the four individuals in the top row all were closer to the camera than were the four in the bottom row, which leads us to conclude that the array was not unnecessarily suggestive. See State v. Taylor, 239 Conn. 481, 499, 687 A.2d 489 (1996) (identification not unnecessarily suggestive where defendant’s photograph one of two that was glossier, brighter than others in array), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); State v. Plaza, 23 Conn. App. 543, 546-47, 583 A.2d 925 (1990) (identification not unnecessarily suggestive where defendant’s photograph larger than all others in array and against different background), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991); cf. State v. Evans, 200 Conn. 350, 355-56, 511 A.2d 1006 (1986) (identification unnecessarily suggestive where array of black and white photographs preceded single color photograph of defendant). Even if the detectives had implied that the defendant would be in the array, that factor does not on its own make it unnecessarily suggestive. See State v. Reid, supra, 254 Conn. 556; State v. Salmon, 66 Conn. App. 131, 138, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

Taking into account the police questioning, the array and the witness’ familiarity with the defendant, we agree with the court that there was not a very substantial likelihood of irreparable misidentification because of unnecessary suggestiveness. Accordingly, we need not address the defendant’s claim that the photographic identification was inherently unreliable. See, e.g., State v. Milner, 206 Conn. 512, 537, 539 A.2d 80 (1988).

II

The defendant next claims that the court made several improper evidentiary rulings that either allowed into evidence damaging information or prohibited him from presenting a defense. We disagree.

“[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 326, 746 A.2d 761 (2000). If we conclude that the court abused its discretion, we will reverse the judgment only if the court’s ruling resulted in “substantial prejudice or injustice to the defendant.” (Internal quotation marks omitted.) State v. Jackson, 257 Conn. 198, 213, 777 A.2d 591 (2001). With that standard in mind, we turn to the merits of the defendant’s claim.

A

The defendant claims that the court improperly admitted a portion of Estronza’s testimony from which the juiy could have concluded that he was a member of the Latin Kings gang. It is the defendant’s contention that the evidence was irrelevant.

Relevant evidence is evidence “having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. “[E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Internal quotation marks omitted.) State v. Copas, supra, 252 Conn. 326-27. Conversely, “evidence that is not relevant is inadmissible.” Conn. Code Evid. § 4-2.

Estronza testified at trial that immediately before the shooting, he saw the victim and heard him shouting, “f— that King, look at that King over there.” The assistant state’s attorney asked, “What’s a King?” and, after Estronza answered a foundational question demonstrating his knowledge that a King was “a gang,” the defendant objected on the ground that the testimony was irrelevant. The court overruled his objection, and Estronza testified that the full name of the gang was the Latin Kings. The court sustained the defendant’s objection on the question of whether Estronza knew whether the defendant was a member of the Latin Kings.

The victim’s statement of disdain for “the King” was relevant because it identified the defendant. Perez, who was in the car with Estronza and who also heard the victim, testified that there was another male on the front steps of 57 Center Street immediately before the shooting, but that he believed that the victim was shouting at the defendant because “I know [the defendant] is a King.” Perez heard glass being broken in the building and saw the defendant begin shooting. Consequently, the meaning of the term “King” was relevant to explain the identification of the person whom the victim was insulting and with whom the victim was arguing before being shot.

Moreover, even if the testimony was irrelevant, its admission did not substantially prejudice the defendant. Despite his bare assertion to the contrary, the defendant cannot show that he was harmed in light of the overwhelming evidence of his guilt, which we discuss in part III.

B

The defendant also claims that the court, in violation of his rights under the confrontation clause of the sixth amendment to the constitution of the United States, improperly granted the state’s oral motion in limine to preclude him from cross-examining Estronza about a June 2,1999 felony arrest that subsequently was nolled. He argues that Estronza may have expected that he should provide damaging testimony at trial in exchange for the nolle and that cross-examination on the charge was constitutionally required. We disagree.

Upon learning that the defendant had an interest in cross-examining Estronza on the nolled charge, the assistant state’s attorney made an oral motion in limine to preclude the defendant from doing so. She stated that Estronza’s arrest had occurred in a different geographical area within our judicial system and strenuously noted that she “had nothing to do with nollying [the charge] or resolving that in any way, shape or form for Mr. Estronza. ... I had no knowledge of that, I took no part in the disposition [and] no incentive was offered to this witness in exchange for his testimony today . . . .” Further, because the charge was not pending, she argued that the defendant should not be allowed to inquire into it. The court granted the motion.

“[T]he defendant is entitled to confront and cross-examine fairly and fully the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... 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. . . . This right is not absolute . . . but may bow to other legitimate interests in the criminal trial process.” (Citations omitted; internal quotation marks omitted.) State v. Provost, 251 Conn. 252, 256-57, 741 A.2d 295 (1999), cert. denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30 (2000). If we conclude that the cross-examination satisfied the confrontation clause, we review the court’s ruling under the abuse of discretion standard. See State v. Asherman, 193 Conn. 695, 718-19, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The defendant’s cross-examination here satisfied the constitutional standard. Estronza was cross-examined on the fact that he was “real tight” with the victim, but had no opinion about the defendant, who he had known for years, which could have helped to establish Estronza’s bias. He also was cross-examined extensively on discrepancies between his testimony and his statement to the police and prior in-court testimony. Although the defendant was not allowed to cross-examine Estronza about the nolle, he did not cross-examine him about a 1996 felony conviction for robbery in the second degree and violation of probation that was elicited on direct examination. In light of the defendant’s ability to otherwise cross-examine the witness as to bias, the court did not unconstitutionally restrict the defendant’s cross-examination when it did not allow him to ask about the unrelated nolled charge.

The court also did not abuse its discretion in not permitting the testimony because the nolled charge was not pending at the time of trial. A party is allowed to cross-examine a witness about his pending charges or probationary status at the time that he gives a statement to the police or during the trial to establish potential bias. See State v. Francis, 228 Conn. 118, 124, 635 A.2d 762 (1993); State v. Shipman, 195 Conn. 160, 163-64, 486 A.2d 1130 (1985). Theoretically, the state could have brought the same charges against Estronza indefinitely; see State v. Herring, 209 Conn. 52, 57-58, 547 A.2d 6 (1988); although his exposure probably was limited to thirteen months after the nolle. See General Statutes § 54-142a (c). Accordingly, an argument could have been made that the state could have reinstituted the charge against Estronza if he did not provide damaging testimony against the defendant and that cross-examination on the subject was relevant to show potential bias.

Although the court could have allowed the questioning, it was a matter within its discretion. We previously have noted that a court does not abuse its discretion in restricting cross-examination about nolles where the defendant otherwise is able to cross-examine to demonstrate bias, motive or prejudice. See State v. Diorio, 12 Conn. App. 74, 76-77, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988); State v. Harris, 10 Conn. App. 217, 235-36, 522 A.2d 323 (1987); cf. In re Marcel L., 14 Conn. App. 548, 549-50, 542 A.2d 340 (1988) (trial court abused discretion in restricting cross-examination about nolled charges of the “only three witnesses whose testimony was proffered against the defendant” and nolled charges arose from same incident giving rise to charge against defendant).

Furthermore, even though our Supreme Court has stated that a defendant must be afforded the opportunity to cross-examine a witness concerning the witness’ relationship to the prosecuting authorities in a criminal case; see State v. Santiago, 224 Conn. 325, 332, 618 A.2d 32 (1992); the defendant here did not produce any evidence or make an offer of proof to support his theory of potential bias. See State v. Gould, 241 Conn. 1, 17-18, 695 A.2d 1022 (1997). Accordingly, we conclude that the court did not impermissibly restrict the defendant’s cross-examination.

C

The defendant also claims that the court abused its discretion in limiting the testimony of his grandmother, Maria Cordon, whom he alleges would have provided an independent explanation for his flight from 57 Center Street, thus obviating the need for the jury instruction given by the court that flight, “if unexplained . . . tends to prove a consciousness of guilt.” He does not challenge the court’s instruction as a matter of law, but rather the court’s decision to limit Cordon’s testimony. That claim may be disposed with little difficulty because the defendant has not shown that the court abused its discretion, and the substance of the desired testimony was brought out on cross-examination.

At the beginning of its presentation, the defense indicated that it would call Conlon as its first witness. The state said that it would object to, as irrelevant, any testimony that Conlon and her husband had moved to New Britain the day after the shooting. Countering that such testimony would be relevant, the defense counsel explained that the defendant lived with Conlon and his grandfather in their 57 Center Street apartment at the time of the shooting and that the next day, the family was threatened. As a result, the grandparents moved to New Britain under police protection. The defendant claimed that Conlon’s testimony about the move would be relevant to show that he may not have known that the police were looking for him because his grandparents no longer were living at the apartment. Consequently, his absence from 57 Center Street would not have been unexplained. The court did not make a ruling at that time.

During Conlon’s testimony, the court sustained the state’s objection to the question asking Conlon when she moved from 57 Center Street, but she testified without objection that she never returned to that street following the day after the shooting. The defendant did not ask Conlon why she moved. On cross-examination, she testified that she moved to New Britain under police protection because her daughters—who helped her to move—were afraid. Both sides referenced the move during their closing arguments to the jury.

On appeal, the defendant claims that the court abused its discretion in denying him the opportunity to explain his flight through Conlon’s testimony. It is difficult for us to determine the substance of that claim because it appears to us that Conlon testified on direct and on cross-examination in the way that the defendant desired. Indeed, the defendant provided an alternative reason in his closing argument to explain why he had fled to New York. As such, we are unable to conclude that the court abused its discretion in restricting the testimony.

D

The defendant also challenges the court’s decision to allow the introduction of two color autopsy photographs of the victim’s face. The first photograph was from a center-right angle; the second showed the left side. Both photographs reveal a gash on the victim’s forehead, and what appear to be scrapes beginning on the victim’s nose and extending to a portion of the left side of the face. The defendant attempted in a motion in limine and again during the trial to exclude the photographs. Both times, the court overruled his request. The defendant again argues that the second photograph was repetitive and that both were more prejudicial than probative. He is no more successful here than he was at the trial court.

In his motion in limine, the defendant sought to exclude both photographs because the graphic nature of the injuries was more prejudicial than probative and would be cumulative of other testimony if offered for the purpose of identifying the victim. Although the parties expected at the start of the trial that there might be some conflict among the witnesses as to whether the facial injuries resulted from the victim’s falling to the ground immediately after the shooting or whether the victim was dragged along the pavement by Perez’s car, both sides agreed that the facial injuries were unrelated to the shooting. The assistant state’s attorney argued that she was entitled to show the injuries that the victim sustained as a result of the shooting, even if the cause was unclear. During a colloquy with the court, the assistant state’s attorney seemed to modify her position and stated that she believed that the gash on the head was the exit wound from the bullet. The court denied the defendant’s motion in limine and stated that it did not believe that the photographs were inflammatory.

The defendant renewed his objection without additional argument during the trial when the state introduced the first photograph for identification during the testimony of one of the police officers who was at the scene. The court overruled the objection and the photograph was admitted.

The defendant again objected when the state attempted to introduce the second photograph during the testimony of the associate medical examiner, and its admissibility was discussed outside the presence of the jury. The state argued that the photograph would be offered for identification and that it “better depicted the side views of the injuries,” which would illustrate the associate medical examiner’s testimony as to their cause. The state also expressed its concern that the defense counsel would raise the issue of how the injuries were sustained on cross-examination and reiterated that a later witness would testify that the victim was dragged along the pavement by Perez’s car. If that testimony were introduced, the state argued, then the jury could conclude that the shooting was not the cause of death. The state then would have to recall the associate medical examiner as a rebuttal witness. For his part, the defendant argued that the photograph was cumulative and again argued that it was more prejudicial than probative. After expressing concerns about the photograph’s relevance, the court overruled the defendant’s objection. The associate medical examiner testified that it was her opinion that the victim’s death was instantaneous, and that the other facial injuries were unrelated to the shooting and “are typical injuries that [the victim] fell on a hard, flat surface . . . .” The defense counsel did not challenge the associate medical examiner’s opinion on that subject on cross-examination, and there was no testimony during the trial that the victim was dragged by Perez’s car.

Even photographs depicting gruesome scenes that may prejudice the jury are admissible, so long as, in the court’s discretion, they are more probative than prejudicial. State v. Haskins, 188 Conn. 432, 452-53, 450 A.2d 828 (1982). A court may exclude relevant evidence “if its probative value is outweighed by the danger of unfair prejudice . . . .” (Emphasis added.) Conn. Code Evid. § 4.3. Our Supreme Court has “outlined four situations where prejudice to the defendant could outweigh the probative value of evidence. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 757, 760 A.2d 82 (2000). “There is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, the test for determining the admissibility of the challenged evidence is relevancy and not necessity.” (Internal quotation marks omitted.) State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986).

We conclude that the court could have properly determined that the first photograph was relevant for the purpose of having the police officer who had been at the crime scene identify the victim, and the court did not abuse its discretion in admitting it. The second photograph presents a closer case. Because the associate medical examiner testified that the victim died instantaneously, it is difficult for us in hindsight to see how the admission of a photograph showing facial injuries caused after death accompanied by testimony regarding how those unrelated injuries were sustained helped to prove any material fact. As we previously noted, there was no conflicting testimony regarding the cause of the injuries or that the death was instantaneous.

If our standard of review were broader, we may very well conclude that the graphic nature of the second photograph was more prejudicial than its limited probative value supporting instantaneous death. Our standard of review is not broad, but rather is limited to whether the court clearly abused its discretion. The fact that we may be able to conclude that a photograph was not relevant “does not mean that other reasonable persons might . . . conclude otherwise.” Id., 650-51 n.l. Additionally, at the time that the photograph’s admissibility was challenged, both attorneys believed that there would be conflicting testimony as to how the injuries were sustained. If there had been evidence that the victim was dragged along the pavement by Perez’s car, the photograph and medical examiner’s testimony refuting that testimony could have been relevant on the issue of whether the gunshot caused the victim’s death. Accordingly, the court did not abuse its discretion in allowing its admission because it appeared to be relevant at the time it was offered. See State v. Booth, 250 Conn. 611, 620, 737 A.2d 404 (1999) (trial court discretion whether to sever trial “ ‘necessarily exercised before the trial begins and with reference to the situation as it then appears to the court’ ”), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). The proper course of action for the defendant would have been to move to strike the photograph and that portion of the associate medical examiner’s testimony at the conclusion of the case once it was determined that the evidence was irrelevant. He, however, did not make such a motion. Accordingly, we will not correct an action of the court that was not improper.

III

The defendant finally claims that the court improperly denied his motion for a judgment of acquittal as to the murder conviction. He claims that the police focused on him as a defendant without a thorough neighborhood canvass, that the eyewitnesses testifying for the state were not credible and that there was no physical evidence linking him to the crime. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. 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. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578, 606-607, 758 A.2d 327 (2000).

The defendant’s claim that the court should have granted his motion for a judgment of acquittal on the murder charge is threefold: (1) that the police focused on him rather than conducting a neighborhood canvass to determine whether the shooter may have been another individual; (2) the state’s witnesses did not actually witness the shooting and were otherwise unreliable; and (3) there was no physical evidence linking the defendant to the crime. As the state points out, the defendant is not challenging that the shooting met the elements of murder, but the jury’s finding that he was the shooter. None of the defendant’s proffered reasons persuade us that the court’s denial of the motion for a judgment of acquittal was improper.

“[T]he question of identity of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve.” State v. Jackson, supra, 257 Conn. 206. “Identification may be shown by circumstantial as well as by direct evidence . . . Moreover, [i]n considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citation omitted; internal quotation marks omitted.) State v. Vasques, 53 Conn. App. 661, 665, 733 A.2d 856, cert. denied, 250 Conn. 922, 738 A.2d 662 (1999).

Here, the jury could have reasonably found from the circumstantial evidence of the state’s three eyewitnesses that the defendant shot the victim. Estronza testified that he saw the defendant enter the vestibule, where it looked as if he was loading a gun. He also testified that he saw the defendant emerge from the building with the gun and heard gunshots. Perez testified that he saw the defendant come out of the building with a gun and start shooting. Vachon Wallace testified that although he did not see the defendant’s gun, he saw the defendant come out of the building shooting. He also testified that he saw the victim get hit and fall to the ground. Estronza and Wallace had known the defendant for several years, and Perez knew his name and had seen him before.

As the court correctly charged the jury, circumstantial evidence may be just as probative as direct evidence. See, e.g., State v. Sauris, 227 Conn. 389, 399, 631 A.2d 238 (1993). Furthermore, “[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) Id. Because the jury reasonably could have found that the defendant was the shooter, the court properly denied the defendant’s motion for a judgment of acquittal as to the murder conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated: “Contrary to [what has] been suggested, I find that there’s absolutely no undue suggestiveness. When I was first given this photo array, I had to look at [the defendant] on a number of occasions and then look back, actually, to find [the defendant]. You know, I have never seen this before. I find—denied. I’m not going to go into it any further. Let’s move forward.”

       Detective Luisa St. Pierre testified that she and other detectives returned to the 57 Center Street apartment after the night of the shooting to locate the defendant, but were unsuccessful.

       The defendant argued: “You had evidence, and I’m sure the state’s attorney is going to put it before you and I’m sure the state’s attorney is going to tell you again and again in rebuttal that you have evidence before you that [the defendant] was arrested in New York. And he was. And remember what Detective [James] Rovella said. People leave the scene of a shooting for all kinds of reasons—scared, trying to get help—who knows? At least for all kinds of reasons. And you also know because Maria Conlon testified that the family had to move the following day. And Detective [Luisa] St. Pierre verified that. And it’s funny, because originally Detective St. Pierre said oh, no, I went back to look for [the defendant] several times. Remember she said that several times? And I asked her on cross-examination, isn’t it right that the family moved the following day? What are you going back there for? And that could look to [the jury] like [the defendant] did something wrong by leaving. The family left. The family left the neighborhood.”

       At oral argument, the defense counsel, on her own initiative, wavered between conceding and “almost conced[ing]” that the court did not abuse its discretion in allowing the admission of the first photograph because it could be probative to show the exit path of the bullet. See, e.g., State v. Satchwell, 244 Conn. 547, 574, 710 A.2d 1348 (1998). As we discuss, however, the associate medical examiner testified that there was no exit wound and that all of the facial injuries occurred as a result of the victim’s hitting the ground after the shooting. Because the defense counsel did not unambiguously concede that the first photograph was relevant, we address the court’s decision to admit both photographs.

       The colloquy was as follows:
      “[Assistant State’s Attorney]: Obviously, the state is entitled to show the victim, to show the injuries that he received as a result of [the shooting], the head wound. I don’t know whether the gash on the front of his forehead is as a result of falling [or] is as a result of the car incident. But the state is certainly entitled to show that, and I think that I have picked two of the least graphic photos. I do not intend to introduce any of the other photos of the victim certainly without notifying the court ahead of time, but [the jury is] entitled to see what injuries the victim suffered.
      “The Court: Which is the exit wound?
      “[Assistant State’s Attorney]: I believe at the top.
      “The Court: Oh, this is the exit wound?
      “[Assistant State’s Attorney]: I believe so, Your Honor. Yes.
      “The Court: Anything else?
      “[Assistant State’s Attorney]: Nothing.

        ‘[Defense Counsel]: No, sir.
      ‘The Court: Objection overruled.'

       Indeed, the defense counsel began his closing argument to the jury by stating: “This is the photograph of the young man who was killed on July 9,1995. Take a good look at it. Because there was proven beyond areasonable doubt at this trial, and unfortunately that was a fact that was never in dispute, that this young man . . . was shot to death on Center Street.”


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. KHARI MILLER
    (AC 21967)
    Schaller, Dranginis and Daly, Js.

      Argued February 19
    officially released May 7, 2002

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Khari Miller, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). On appeal, the defendant claims that (1) he was convicted on the basis of insufficient evidence of identification, (2) the prosecutor improperly urged the jury to find, contrary to the evidence, that the state met its burden of identifying the defendant even if the jury did not believe the sole identifying witness, (3) there was insufficient evidence to support the conviction of conspiracy to commit robbery and (4) the court abused its discretion in denying his motion for new counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 25,1998, the defendant, Demont Murphy and Benjamin Smith met outside Murphy’s home in Hartford. All three were wearing black clothing. Donna Williams and Rose Carter joined the men. Murphy went into his car and retrieved a gun that he put in the waistband of his pants. Williams told Murphy that the victim, Hubert Martin, had money in a wallet in his shoe and that they needed to go get it. Murphy asked Williams if she was “still down to do that,” to which she responded, “Hell, yeah.” Carter and Williams then went inside to use drugs, and the three men left for the victim’s home.

The men knocked on the victim’s door while the victim’s wife, Letna Martin, was upstairs reading in bed. She heard her husband ask, “Who is it?” and heard the door open before there was any response. From the window she could see one man entering the house and one standing on the porch. She then heard her husband’s muffled voice, as if someone’s hand was covering his mouth, call out “help, murder, call the police.” She immediately dialed 911. While she was still on the telephone, she heard someone coming up the stairs. The defendant entered her room holding a gun and threw the telephone out of her hands. He grabbed her by the neck and dragged her downstairs into the living room where her husband was standing. She saw no one else in the room. Her husband then grabbed a small statue and threw it at the defendant, and the defendant shot the victim, killing him. The defendant then ran out the door. When Martin ran to the door to lock it behind him, she saw the three men running away. Approximately $550, which the victim kept in his wallet during the day and stored in one of his shoes at night, was stolen. The three men ran back to Murphy’s house where Murphy said that “he didn’t have to shoot him” and “he didn’t really have any money . ...” A boot matching the victim’s boot at the murder scene was located in a field approximately 100 feet from the victim’s front door.

Following the defendant’s conviction, he was sentenced to forty-five years imprisonment on the felony murder count, fifteen years concurrent for robbery in the first degree and fifteen years concurrent for conspiracy to commit robbery in the first degree for a total effective sentence of forty-five years. This appeal followed. Additional facts will be set forth as necessary to resolve the issues on appeal.

I

The defendant first claims that he was denied his due process rights because no reasonable jury could have concluded that Martin identified the defendant beyond a reasonable doubt. Specifically, he claims that the evidence was insufficient to identify him as the perpetrator because Martin, the sole eyewitness, identified Smith as the shooter during a hearing in Smith’s case, testified that the bedroom was generally dark and that she could not determine whether the shooter was heavy or thin because she had panicked, and did not “look into the eyes” of the defendant. We do not agree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. 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. . . .

“The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he 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. . . . The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... In this process of review, it does not diminish the probative force of the evidence that it consists ... of evidence that is circumstantial rather than direct.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 646, 789 A.2d 519 (2002).

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably concluded that the defendant was the perpetrator. The record reveals that Martin selected the defendant’s photograph from a photographic array and identified him in court. Although she stated that it was generally dark, she repeatedly testified that she was able to see him in her bedroom. She said, “I saw the person who came into my house.” She also testified that there was a small lamp in the bedroom that gave the room some light.

She testified on direct examination that she previously had identified Smith as the shooter. She maintained, however, then and during cross-examination that she “wasn’t certain” and “wasn’t sure” about that statement. The defendant also attempted to impeach Martin with her testimony during a hearing in Smith’s case that she saw two people running from her home. She repeatedly stated, however, that she saw two people at the house, one inside and one outside, and three people running away.

Whether Martin’s testimony was believable was a question solely for the jury. “It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury.” (Internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 256, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

In addition to Martin’s testimony, the jury had the testimony of other "witnesses before it. For example, Darlene Randolph testified that, as she was walking by, she witnessed the three men, including the defendant, gathered together at Murphy’s house shortly before the shooting. She identified the defendant’s photograph from a photographic array and identified him in court. She also testified that about one week after the shooting, the defendant approached her and made statements to her that she interpreted to mean that she was to “look out for” the defendant. Specifically, she testified, “And he told me, he said, you gonna stop goin’ ’round tellin’ people I had somethin’ to do with that. You know. And I’m lookin’ at him like—he said, you got my back, right? He said, just show me love.” From Randolph’s testimony, the jury reasonably could have concluded that the defendant was involved in the shooting and was in fact the shooter because he, in essence, asked her to cover for him. Rose Carter also testified that when Murphy came running back home with the two other men, she heard Murphy say that “he didn’t have to shoot him . . . .” From this statement, the jury reasonably could have concluded that, although Murphy was seen in possession of a gun, he was not the perpetrator. As we have stated, “it does not diminish the probative force of the evidence that it consists . . . of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Lewis, supra, 67 Conn. App. 646; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 7c, p. 10.

We conclude that the jury had before it sufficient evidence from which it could have concluded that the defendant was the person that Martin saw shoot her husband. We will not second-guess the jury’s conclusion. We therefore reject the defendant’s claim that the jury had insufficient evidence to conclude beyond a reasonable doubt that the defendant was the perpetrator.

II

The defendant next claims that he was denied the right to a fair trial because “the prosecutor repeatedly and improperly urged the jury to find the defendant guilty . . . even if the jury rejected Mrs. Martin’s identification of the defendant as the shooter.” Specifically, he claims that the prosecutor’s closing argument was improper because the prosecutor argued that the defendant could be found guilty of robbery in the first degree and felony murder even if the jury found that the defendant was not the shooter, but was a participant in the crime. Although the defendant concedes that the prosecutor’s statements during closing argument were legally correct on the charge of felony murder, on appeal he claims that the argument presented a theory of culpability not relied on at trial. He contends that if the jury rejected Martin’s identification of him as the shooter, it could not reasonably conclude in the alternative that he was a participant. We disagree.

The defendant’s claim of prosecutorial misconduct was not preserved at trial. He therefore seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). It is well settled that “[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct 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. . . . [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument. . . . [M]oreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial .... State v. Bonsu, 54 Conn. App. 229, 238, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999).” (Internal quotation marks omitted.) State v. Iannazzi, 68 Conn. App. 456, 465-66, 791 A.2d 677 (2002); see also 1 B. Holden & J. Daly, supra, § 12, p. 76 & (Sup. 2001) § 12, pp. 69, 82.

Recently, our Supreme Court reiterated in State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), that “[t]o prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . [P]rosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself ....

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) Id, 699-701.

“While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) Id., 701-702.

We conclude that the there was no prosecutorial misconduct and therefore we cannot say that the defendant was clearly deprived of his constitutional right to a fair trial. The prosecutor properly argued from evidence raised at trial that even if the defendant was not the shooter, he was a participant in the robbery and shooting of the victim. First, even if the jury concluded that the defendant had not shot the victim, it could have credited Martin’s testimony to the extent that she identified him as one of the three men involved in the crime. Carter and Randolph also identified the defendant as one of the men involved. They placed the defendant with Smith and Murphy on the night of the incident and testified that all three men were dressed in dark clothing. Carter testified that Williams had told Murphy that the victim kept money in his shoe and that they should go get it. Both Carter and Randolph testified that the defendant and Smith were standing about four or five feet away from this conversation. Carter testified that after she went into the hallway of Murphy’s house with Williams to use drugs, the three men returned, running from the direction of the victim’s house. One of them was yelling, “[G]et the fuck out of here.” In addition, after the killing, the defendant approached Randolph and made statements to her that she not say anything about his involvement in the crime, which statements the jury reasonably could have concluded indicated his consciousness of guilt.

The jury reasonably could have interpreted those statements as indicating that the three men planned to rob the victim that night. The cumulative weight of the evidence suggests that the defendant was, if not the shooter, at least a participant in the robbery and shooting of the victim. We conclude that it was proper for the prosecutor to draw the jury’s attention to the reasonable inferences to be drawn from the facts before the jury and that his closing argument, therefore, did not constitute prosecutorial misconduct.

Ill

The defendant next claims that the evidence was insufficient to support the conclusion that he was guilty of conspiracy to commit robbery in the first degree. We disagree.

As we have stated, we invoke a two part test in reviewing sufficiency of the evidence claims. State v. Lewis, supra, 67 Conn. App. 646. Viewing the evidence in a light most favorable to sustaining the verdict, we must determine whether the jury reasonably could have concluded that the evidence and the inferences drawn therefrom established the defendant’s guilt beyond a reasonable doubt. Id.

“Conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense. . . . State v. Kenney, 53 Conn. App. 305, 312, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).” (Internal quotation marks omitted.) State v. Vasquez, 68 Conn. App. 194, 209, 792 A.2d 856 (2002); see General Statutes § 53a-48 (a); see also 1 B. Holden & J. Daly, supra, § 58f, p. 350 & (Sup. 2001) § 125c, p. 367. “[I]ntent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Miller, 59 Conn. App. 406, 413, 757 A.2d 69 (2000), cert. denied, 255 Conn. 942, 769 A.2d 60 (2001); 1 B. Holden & J. Daly, supra, § 66c, pp. 474-75.

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. .. . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Spearman, 58 Conn. App. 467, 471-72, 754 A.2d 802 (2000).

The defendant challenges whether the state met its burden of proving the intent to agree to conspire. The evidence supporting our conclusion as to this element of conspiracy has been set forth in the previous section. We reiterate, however, that the defendant was seen on the night of the shooting congregating with Murphy and Smith while Murphy discussed robbing the victim with Williams. All three were dressed in dark clothing. The three men, including the defendant, went in the direction of the victim’s home. The defendant was identified as an individual inside the victim’s home. The men, including the defendant, were seen running away from the direction of the victim’s home. Approximately one week after the shooting, the defendant approached Randolph, and the jury reasonably could have infered from Randolph’s testimony that the defendant attempted to conceal his involvement in the crime. On the basis of the evidence and the reasonable inferences drawn therefrom, we conclude that the jury reasonably concluded that the defendant intended to agree to the conspiracy and that he intentionally participated in a planned robbeiy of the victim.

IV

The defendant’s final claim on appeal is that the court improperly denied his request for the appointment of new counsel. Specifically, he argues that the request should have been granted because he was considering seeking a writ of habeas coipus based on his counsel’s alleged ineffective assistance in a prior case, his counsel had made a motion to withdraw in that prior case and the attorney-client relationship had broken down. He also argues that the court made an inadequate and therefore improper inquiry into whether new counsel should be appointed and that the court improperly failed to inform him that if he decided to proceed pro se, he would be given access to a law library through standby counsel. We are not persuaded.

We must first consider whether the court conducted a sufficient inquiry into the defendant’s request. The defendant argues that the court did not sufficiently inquire about his complaints and that the court reversed the proper order of questioning by first asking the defendant whether he desired to represent himself and then asking why he wanted new counsel. With respect to the order of questions, the defendant provides no authority that mandates a specific order of questioning for purposes of this inquiry. We conclude that this is a distinction without a difference. As to the court’s obligation to conduct an inquiry into the defendant’s request for new counsel, our standard of review is an abuse of discretion standard. State v. Hansen, 39 Conn. App. 384, 399, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). “A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints.” Id.

Our review of the record reveals that the court questioned the defendant at length as to his reasons for requesting new counsel. The defendant responded that he had problems with counsel in a prior case and that counsel had made a motion to withdraw from representation in that case. Although the defendant said that they had since worked those problems out, he explained that “on the performance of the last case, I would expect that in this next case it would be not too much a different thing. It wouldn’t be too much of a difference and I think I need not bet—like—well, can I say better representation.” The defendant did not offer any reason for his dissatisfaction with his counsel in the present case. Instead, he agreed with the court that counsel was a competent attorney. We conclude therefore that the court conducted a sufficient inquiry.

We also conclude that the court did not abuse its discretion in denying the defendant’s request for new counsel. “There can be no dispute that a criminal defendant has a constitutional right to the effective assistance of counsel . . . [and] that right, however, is not without limitation. For example ... it is clear that the right to effective assistance of counsel does not include an unlimited opportunity to obtain alternate counsel.” (Citations omitted; internal quotation marks omitted.) State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 74 (1988). “Moreover, appellate tribunals look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial .... Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Fisher, 57 Conn. App. 371, 382, 748 A.2d 377, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000). “Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” (Internal quotation marks omitted.) State v. Patavino, 51 Conn. App. 604, 609, 724 A.2d 514, cert. denied, 249 Conn. 919, 733 A.2d 236 (1999). “The standard of review to be applied when reviewing a denial of a request for alternate counsel is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” (Internal quotation marks omitted.) State v. Guitard, 61 Conn. App. 531, 536, 765 A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32 (2001).

The defendant concedes, and we agree, that instituting a habeas corpus claim based on ineffective assistance of counsel against a defendant’s counsel does not necessarily require the appointment of new counsel. See State v. Vega, 259 Conn. 374, 391, 788 A.2d 1221 (2002) (filing of grievance insufficient to implicate violation of defendant’s sixth amendment rights); State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986) (unsubstantiated allegations of ineffective assistance and conflict of interest do not per se require court to disqualify counsel); State v. Beckenbach, 198 Conn. 43, 50, 501 A.2d 752 (1985) (unsubstantiated allegations of ineffective assistance of counsel do not per se require court to grant continuance). The defendant offered no evidence indicating that counsel’s representation was ineffective or otherwise indicating a substantial reason to grant the defendant’s request. The defendant’s claim that the attorney-client relationship had broken down is further undermined by the defendant’s statement that he and his counsel were able to “work out their differences,” notwithstanding counsel’s motion to withdraw from the prior case. “The trial court is bestowed with broad discretion in determining whether the circumstances warrant the appointment of new counsel. . . . [A]bsent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error.” (Citation omitted; internal quotation marks omitted.) State v. Casado, 42 Conn. App. 371, 379, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996). We conclude that the factual record of this case does not warrant reversal.

Finally, the defendant asserts that the court improperly failed to inform him that if he chose to proceed pro se, he would be given access to legal materials through standby counsel. The defendant argues that he “clearly and unequivocally expressed his right to self-representation, which request was conditioned on one basis: access to a law library.” We cannot agree.

Our reading of the transcript reveals that the court was ready to make the proper inquiry pursuant to Practice Book § 44-3 to determine if the defendant should be permitted to waive his right to counsel. The defendant, however, clearly stated that he did not want to proceed pro se. Rather, he desired to have the court appoint substitute counsel. Moreover, we reiterate that standby counsel has a limited purpose. Our Supreme Court has stated: “A criminal defendant who knowingly and intelligently waives the right to counsel and who has been appointed standby counsel is not constitutionally entitled to access to a law library. Rather, the appointment of standby counsel satisfies the state’s obligation to provide the defendant with access to the courts.” State v. Fernandez, 254 Conn. 637, 658, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001). In Fernandez, the court further stated that “the role of standby counsel is essentially to be present with the defendant in court and to supply the limited assistance provided for in Practice Book § 44-5 . . . [and] that standby counsel does not, however, have any obligation to perform legal research for the defendant.” Id. We therefore are not persuaded that the court improperly failed to inform the defendant that he had a right of access to a law library through standby counsel because he is afforded no such right.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of charges of murder in violation of General Statutes § 53a-54a and burglary in the first degree in violation of General Statutes § 53a-101 (a) (1).

       Randolph further testified that the phrase “show me some love” meant that they were to “look out for” each other.

       Under Golding, “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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant cites the following colloquy in support of the invocation of his right to self-representation:
      “The Court: Well, let me address a question or two to [the defendant]. Do you prefer to represent yourself, sir?
      “The Defendant: Well, there is no possible way I can represent myself, Your Honor, because I don’t have access to a law library and any of the legal paperwork that I need to represent myself in the case like this, and I don’t have the state’s evidence or I didn’t have a motion to discovery filed yet, so I don’t know exactly what the state has against me, so no, I couldn’t represent myself. I would need another counsel.
      * * *
      “The Court: Well, what I am going to do, then, based on what I’ve heard, I haven’t heard any problems at all with representation in this case. The alternative at this point would be to represent yourself, but you said you don’t want that, and even if you did, I would be compelled to go through a fairly lengthy examination on the record of your experience and so forth, but given your representation that you are not comfortable representing yourself, then I won’t go through that.
      “The Defendant: But, Your Honor, not the point that I wouldn’t be comfortable representing myself, it is just that [in] the facility that I am, located, I don’t have the access to a law library or the facilities for—
      “The Court: But as I understand it, for whatever reason, you don’t want to represent yourself, is that correct.
      “The Defendant: I would if I could. If I could, I would.

      “The Court: Well, do you want to represent yourself? If that is your request, I will go through a—
      “The Defendant: No, my request is that I would like another attorney.” (Emphasis added.)