author: Foti, J.

text:
    State of Connecticut v. Antoine Reddick
    (13335)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued November 2, 1994
    decision released February 7, 1995

      John W. Steinmetz, with whom, on the brief, were Thomas P. Orfanos and Linda L. Morkan, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of burglary in the first degree in violation of General Statutes §§ 53a-8 and 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), two counts of robbery in the second degree in violation of General Statutes §§ 53a-8 and 53a-135 (a) (1), conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48 and 53a-102 (a), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92 (a) (2) (B), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), and conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122 (a) (2). The defendant was sentenced to a total effective sentence of fifty years incarceration. The defendant claims that the trial court improperly (1) failed to strike the testimony of two state’s witnesses, (2) allowed testimony under the hearsay exceptions for express admissions and adoptive admissions, (3) allowed evidence of consciousness of guilt, and (4) allowed the admission of documents under the catchall exception to the hearsay rule. We affirm the judgment of conviction.

The jury could reasonably have found the following facts. On July 15, 1982, at approximately 1:30 a.m., two men entered the house of Edward DiLauro and Henrietta DiLauro at 855 Prospect Street in Hamden. Henrietta DiLauro, a seventy-three year old woman, was asleep on the couch on the first floor. One of the men placed his hand over her mouth and she was lifted from the couch and carried into the bathroom. The men threatened to kill her if she screamed. Her mouth was stuffed with tissues and she was bound and put under the sink. They took her three rings and stated that they came from Harlem and needed money for drugs. They wore masks and gloves. She could not tell their race. From the bathroom she could see them carrying her belongings from the house to the garage, including a television from the master bedroom, two oriental rugs from the foyer and liquor from a cabinet. They packed her car, took the car keys, but had trouble starting the car.

After she was able to free herself, she went upstairs where she found her husband with a bloodied pillow over his face. His hands were tied with an electric cord. He told her that two men had entered the bedroom while he slept, grabbed him, punched him in the nose, put the pillow over his face and tied his hands.

The police were called and Hamden police detective Andy Polzella responded at approximately 3:30 a.m. Shortly thereafter, Officer Ronald Durkin arrived to assist in the investigation. They spoke to the victims and examined the premises. The interior of the house was in disarray. The burglars’ point of entry was found to be a rear bathroom window that had been pryed open with a tool. Outside, by this window, Durkin discovered a Greyhound bus route map, and a Jamaica, New York, bankbook in the name of James Dawson. The map was marked with the name Maxine Dawson and with a destination. The two items were later sent to the Federal Bureau of Investigation for purposes of fingerprint comparison. A search for latent fingerprints within the house proved negative.

Later that morning, Henrietta DiLauro gave a statement at police headquarters. She could not identify the robbers or determine their race. She gave a list of the items stolen from the house and her person, which included a bankbook from the Connecticut Savings Bank.

Later on that same day, July 15, 1982, a woman entered the Connecticut Savings Bank with the DiLauro bankbook and approached the teller, Terry Gambardella. The woman sought to withdraw money from that account but since the bank signature card did not match the woman’s identification, the woman was asked to wait while Gambardella consulted the head teller. The woman departed, leaving a credit card and the bankbook. Later, Gambardella identified a police photograph of Carol Varella as the person attempting to withdraw money from the DiLauro account.

Varella’s testimony estabished that on July 15,1982, she was living in New Haven with Diane Reddick, the defendant’s sister, and Kenny Sanders. At approximately 8:30 a.m., Varella was awakened by Sanders and the defendant. Sanders had a bankbook and a Visa credit card. He told Varella that he and the defendant had obtained them earlier, and he asked her to use the bankbook to withdraw money for him. He convinced her that she could pass as a white person, which was the race of the DiLauros. She, along with the defendant and Sanders, went to the bank. She entered the bank, with Sanders following. When asked to wait by the teller, she and Sanders left. After returning to the car, she asked about the source of the bankbook. They told her that they had broken into a house on Prospect Street in Hamden, that Sanders climbed in a window and opened the front door for the defendant. They said they tied and gagged an old lady who had been asleep on the couch, and Sanders had punched an old man in the face and gagged him. Both Sanders and the defendant laughed about the crime. They related that they had tried to take bottles of liquor, television sets and oriental rugs but they had put it all in a car that they could not start. They said that they wore ski masks and pretended to be from New York. Although Varella could not recall which of the two men made each of the statements, both men participated in the conversation and neither disagreed with or disavowed what the other said. She also observed some jewelry, including a diamond ring and gold rings. At some point, she found some costume jewelry from the robbery in the trash in back of her house and she took some of it.

On July 23,1982, the police seized the “junk” jewelry and Varella was arrested. She saw the defendant once after July 15, 1982. They spoke of the police investigation of the incident and the defendant said he would not let the police catch him. At the time of trial in 1992, she had not seen the defendant for ten years.

Arrest warrants were issued for the defendant and Sanders, and the police attempted to locate the defendant at his address in July, 1982. Several stakeouts at this and other locations proved unsuccessful. The defendant was not located in 1982 or 1983. In 1984, police learned that the defendant had been located in Florida.

The defendant’s fingerprints were found on the Jamaica bankbook and on the Greyhound map found at the scene of the crime. The defendant’s fingerprints also matched those on a fingerprint card issued to James Dawson at the Chicago police department. An inspector from the state’s attorney’s office, Raymond Brodeur, contacted Sergeant Thomas Barnes, records supervisor of the Chicago police department. Barnes sent a sworn affidavit along with certified copies of the fingerprint card and a mug shot of James Dawson.

I

The defendant first claims that the trial court improperly failed to strike the testimony, pursuant to Practice Book § 752, of two witnesses, Varella and Henrietta DiLauro. The defendant’s argument is based on the allegation that the investigating police destroyed statements of these witnesses prior to the commencement of trial. According to the defendant, the state’s consequential failure to produce the statements pursuant to Practice Book § 752 so prejudiced him that the court’s refusal to strike the trial testimony of the two witnesses requires a reversal of his conviction. We do not agree.

The defendant’s claims regarding each of the two witnesses will be addressed separately.

A

The following facts are relevant to the defendant’s claim regarding Varella. Following Varella’s direct testimony, the defendant was supplied with a typewritten copy of Varella’s statement. During voir dire, Varella indicated that a tape had been made of her statement on the day of her arrest. Thereafter, that statement was typed, and she read and signed it. The tape could not be produced at trial and was presumed destroyed. The defendant’s motion to strike Varella’s testimony was denied by the trial court.

The defendant claims that the state’s failure to produce Varella’s taped statement infringed on his constitutional right of confrontation. He farther claims that the state failed to prove that the nonproduction of the statement was harmless.

Our Supreme Court has set forth the analysis to be applied where the state is unable to comply with the mandate of Practice Book § 752. “[I]f a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’testimony is not required. . . . Rather, under such circumstances, it is appropriate that the court weigh the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. . . . This approach gives broad discretion to the trial court. . . . Where . . . the destruction of a witness’ statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness. . . . [T]he proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule.” (Citations omitted; internal quotation marks omitted.) State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990).

The state’s failure to provide material to which a defendant is entitled under Practice Book § 752 may “adversely affect a defendant’s ability to cross-examine . . . witnesses and thereby infringe upon his constitutional right of confrontation.” State v. Williamson, 212 Conn. 6, 20, 562 A.2d 470 (1989). In determining whether cross-examination has been impaired, our Supreme Court has considered such factors as the trial or reviewing court’s access to the unproduced material, the declarant’s adoption of a counterpart transcript within a short time after making the statement, and the extent to which the defendant’s conviction rested on the testimony of the witness whose pretrial statement was destroyed. State v. Belle, supra, 215 Conn. 269-70. It is also appropriate to consider whether other impeachment material was available to the defendant. State v. Cerilli, 222 Conn. 556, 580, 610 A.2d 1130 (1992). Absent a showing that a defendant’s constitutional right of confrontation was violated by the destruction, the state need prove only that it was more probable than not that the nonproduction was harmless. Where the inability to produce a statement so adversely affects the defendant’s ability to cross-examine the witness that his confrontation rights are infringed, the state must prove harmlessness beyond a reasonable doubt. State v. Belle, supra, 269-70.

One of the factors in determining whether the non-production of Varella’s taped statement interfered with the defendant’s right to confrontation is whether Varella adopted a counterpart transcript within a short time after making the statement. The trial court found that the only tape of the interview was the one made at the Hamden police station. This tape was transcribed and signed by Varella one day later. There is little or no likelihood that the taped interview and the transcript of the interview differed. Furthermore, while Varella’s testimony was important in implicating the defendant in the burglary, the defendant’s conviction did not rest solely on her testimony.

This leads us to conclude that the failure to produce the tape did not so adversely affect the defendant’s ability to cross-examine Varella that it infringed on his constitutional right of confrontation. Accordingly, the standard to be applied to the harmless error inquiry is whether the state has met its burden of proving that it is more probable than not that the nonproduction of the tape was harmless. State v. Johnson, 214 Conn. 161, 175, 571 A.2d 79 (1990). In applying the balancing test set forth previously, we must weigh the state’s culpability in the destruction of the tape-recorded statement against the prejudice suffered by the defendant as a result of that destruction to determine whether the trial court abused its broad discretion in denying the defendant’s motion to strike. We conclude that the trial court did not abuse its discretion.

Varella reviewed and signed the typed statement, which the trial court found identical to the taped statement given the previous day. It is unlikely that the tape would have revealed anything different. Our review of the whole record leads us to conclude that the destruction of the tape was harmless because the result would not have been different had it been preserved. State v. Belle, supra, 215 Conn. 268. The court did not abuse its discretion in failing to strike Varella’s testimony.

B

The following facts are relevant to the defendant’s claim regarding Henrietta DiLauro. Following DiLauro’s direct examination, the state gave to the defendant the typewritten statement that DiLauro had given to the police on the day of the burglary ten years earlier. During voir dire by the defendant, DiLauro indicated that the police had taken notes while interviewing her at home. DiLauro stated that these notes were read back to her and she acknowledged that they were truthful and correct. She also stated that she signed a typed copy of her statement at the police station. When questioned by the state, she indicated that she had not signed anything at her house and that the typed statement was the only written statement that had been read to her and that she had signed. On continued examination by the defense, she testified that the police took notes at her house but did not read those notes back to her. The defendant did not move to strike her testimony at this time.

Following Polzella’s testimony, the defendant asked to see the notes of his interview with DiLauro at her house. Polzella indicated that any notes taken ten years earlier were no longer in his possession because he destroyed his notebooks when they were filled. He also stated that he probably wrote only the victims’ names, address and dates of birth, as that was his usual habit. Durkin testified that he also had taken notes when interviewing the victims. He stated that those notes were destroyed, but the contents had been condensed in his reports that had already been furnished to the defendant.

Although the defendant objected to his not being furnished with the police notes concerning the DiLauro interview, the defendant never moved to strike her testimony. Because the defendant neither objected to DiLauro’s testimony nor sought to strike it, we will not review his claim that the trial court improperly did not strike the testimony. See Practice Book § 4185.

The defendant also claims that the state’s failure to produce DiLauro’s statement^ deprived him of the opportunity to cross-examine her effectively. We do not agree. The trial court found that DiLauro’s typed and signed statement made at the police station on the day of the crime was the only statement that DiLauro had made. The record supports this determination. Further, the principal issue in this case was one of identity. DiLauro’s testimony in no way identified the defendant or anyone else. Her testimony merely related the facts of the burglary without implicating the defendant. Our review of the whole record shows that the state’s failure to produce the field notes relative to the DiLauro interview did not so adversely affect the defendant’s ability to cross-examine her that it infringed on his constitutional right of confrontation. Also, it is more probable than not that the nonproduction of the notes was harmless. See State v. Cecarelli, 32 Conn. App. 811, 824, 631 A.2d 862 (1993).

II

The defendant next claims that the trial court improperly admitted, through the testimony of Varella, statements made during a conversation that Varella had had with the defendant and Sanders. Varella testified as to aspects of this conversation, which occurred in the car as Varella, Sanders and the defendant drove away from the bank. She stated that there was no question in her mind that both Sanders and the defendant had participated in the conversation, and that neither man had disavowed or disagreed with anything the other had said. She could not recall, however, exactly who had said what. The defendant posits that because Varella could not be specific as to which man had said what, Varella’s testimony that “they” discussed the robbery should not have been allowed. Citing State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), the trial court admitted the entire conversation.

“An admission may be introduced only against the party who made the admission. . . . An accused can be held to have adopted a statement as his own, however, when his conduct indicates that he assents to or adopts a statement made by another person.” (Citation omitted.) Id., 682-83. Such an adoption must be demonstrated by conduct or statements that are “ 'unequivocal, positive and definite in nature, clearly showing that in fact the defendant intended to adopt the hearsay statements as his own.’ ” State v. Morrill, 197 Conn. 507, 537, 498 A.2d 76 (1985). Even if a defendant makes no response to a statement made within his hearing, that statement may be introduced when the circumstances show that he heard and understood the statement, had the opportunity to speak and circumstances naturally called for a reply from him if the statement was not true. Id., 535. “Such an admission by one cries out for denial by the other. In the absence of such a denial, it is admissible as an admission against both.” Festo v. Luckart, 191 Conn. 622, 632-33, 469 A.2d 1181 (1983).

Our review of the record discloses that the defendant either made the accusatory statements or heard them and did not disavow them. The trial court found that both the defendant and Sanders had participated in the conversation, and neither had disavowed what the other said. The statements were accusatory in nature and involved a brutal crime. Such statements would naturally have required a response if the listener had not participated in the alleged crimes. The main conversation took place in the privacy of a car, a small space in which conversation could easily be heard and where no police or unfriendly witnesses were present. The fact that both men participated in the conversation indicates that they understood each other’s statements and had an opportunity to reply. See State v. John, supra, 210 Conn. 684. We conclude that Varella’s testimony was admissible under the adoptive admissions exception to the hearsay rule.

The defendant argues that to allow hearsay under an adoptive admission “requires a more stringent and specific showing of assent” and that Festo is probably not good law today. Festo is Supreme Court precedent. This court will not reevaluate Supreme Court precedent. State v. Cecarelli, supra, 32 Conn. App. 825.

Ill

The defendant claims that the trial court improperly admitted, as evidence of flight, testimony that the defendant was found in Florida two years after the crimes. He contends that there was no evidence of flight in this case. The crimes occurred on July 15,1982. The defendant was found in Florida in July, 1984. There was no evidence as to when the defendant departed for Florida.

Flight, when unexplained, tends to prove a consciousness of guilt. State v. Ferraro, 176 Conn. 508, 516, 408 A.2d 265 (1979). When considered together with all the facts of the case, flight may justify an inference of the accused’s guilt. State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 975 S. Ct. 126, 50 L. Ed. 2d 116 (1976). It does not, however, raise a presumption of guilt. State v. Fernandez, 27 Conn. App. 73, 90, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). Flight may be established by proof of efforts by the police to apprehend the accused. Such proof, however, must be supported by evidence that the defendant knew he was wanted by the police. State v. Ferraro, supra, 517. “ ‘Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.’ ” State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).

Here, there were several pieces of evidence that supported consciousness of guilt. The evidence showed that the police made unsuccessful efforts to locate the defendant immediately after the crimes. In addition, there was testimony that shortly after the crimes the defendant had indicated that the police would not find him. There was also evidence presented that the defendant had used an alias. Under these circumstances, the fact that the state could not prove when the defendant had gone to Florida is not significant. A lapse in time between the commission of the crimes and the flight, whenever that might have occurred, should not affect the admissibility of the evidence of flight. The evidence was sufficient to support an inference that the defendant was in Florida for the purpose of avoiding arrest in Connecticut. Evidence that the defendant was found in Florida in 1984 could be admitted as relevant to the issue of flight.

IV

The defendant’s final claim is that the trial court improperly allowed into evidence an affidavit, a fingerprint card bearing the name James Dawson, and a photograph of the defendant.

The following facts are relevant to this claim. The affidavit of Sergeant Thomas Barnes, records supervisor of the Chicago police department, was offered to establish the foundation for admitting the fingerprint card. The purpose of admitting the fingerprint card was to establish that the defendant was the owner of a bankbook found at the scene of the crime. This bankbook was issued to “James Dawson.” During voir dire, Raymond Brodeur, an inspector from the state’s attorney’s office testified that he spoke to Barnes about the alias “James Dawson” on the defendant's record. He was told that the fingerprint card and mug shot were made and kept in the normal course of police business. Barnes sent his affidavit to this effect, along with the certified copies of the other documents. The state offered the documents either as business records or as being sufficiently reliable to be admissible under the residual exception to the hearsay rule. The court found the documents reliable and concluded that it was in the interest of justice to admit the documents under the residual or catchall exception to the hearsay rule.

The trial court has broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). We afford a trial court’s ruling on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Its evidentiary rulings will be set aside only where there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). Every reasonable presumption should be given in favor of the trial court’s ruling. State v. Shindell, 195 Conn. 128, 136, 486 A.2d 637 (1985).

“An out of court statement is hearsay when it is offered to establish the truth of the matters contained therein. . . . As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court under oath, and subject to cross-examination. . . . The residual, or catchall, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions. State v. Sharpe, supra, [195 Conn.] 664 . . . .” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992).

While the defendant does not challenge the ruling as to the reliability and trustworthiness requirement, he does challenge whether, under the first prong of the test, there was a reasonable necessity for the admission of the statements. Our Supreme Court has stated that “the necessity requirement is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” (Emphasis added.) State v. Sharpe, supra, 195 Conn. 665.

The trial court recognized the reliability of the items and held that they should be admitted in the interest of justice. The court also noted that Barnes, although technically available, could not testify in place of the documents, and to bring him “all the way from Chicago, merely to ask him the foundation questions to qualify a business record, to ... go through that expense and trouble which would result in I suspect not a single question on cross-examination” would not be reasonable.

The reasonable necessity requirement is met when common sense demonstrates that the documents are considered sufficiently trustworthy to be admissible and there appears to be no justifiable need for cross-examination of the witness, not the declarant, in the traditional sense.

The trial court determined that the evidence was relevant, that it was necessary to the resolution of the case, that the documents were reliable and trustworthy, and that they should be admitted in the interest of justice. While the court did not elaborate on which of the alternatives it considered in satisfying the necessity requirement, the fingerprint card and mug shot are the type of evidence that speaks for itself, requiring no cross-examination. Evidence of the same value could not have been obtained from any other source. The affidavit by Barnes accompanied the card and photograph and was admitted solely for the purpose of explaining that they were true, accurate copies of the originals and that they were kept in the usual course of police business of the Chicago police department. “There is no procedural canon against the exercise of common sense in deciding the admissibility of hearsay evidence.” Id., 665-66, quoting Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 397 (5th Cir. 1961).

We therefore conclude that the trial court did not abuse its discretion in admitting the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       Edward DiLauro died prior to trial.

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness testified.”

       In the context of this issue, bad faith is defined as destruction done with a deliberate intent to deprive the defendant of discoverable material or with malicious intent. State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989). Here, the defendant concedes that there was no bad faith on the part of the police. He claims that nonproduction of the witness’ statement violated his confrontation rights.

       The defendant did move to strike Durkin’s testimony because of the destruction of his field notes. The court’s denial of this motion is not before us on appeal. Regarding DiLauro’s testimony, the defendant argues that it should have been stricken without the defendant’s having to request it. We find this argument to be without merit. “The appropriate sanctions for the state’s failure to comply with discovery are set forth in Practice Book § 755, which requires the trial court either to strike the testimony of the state’s witness or to declare a mistrial, if the defendant seeks it and the interests of justice require it.” State v. Cecarelli, 32 Conn. App. 811, 823, 631 A.2d 862 (1993).

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       While it seems clear that the officers took field notes at the time of the first response to the house, field notes are not statements unless they are signed or otherwise adopted. See State v. Belle, supra, 215 Conn. 266. The record does not indicate that the notes were signed or otherwise adopted in this case.

       In State v. John, supra, 210 Conn. 682, our Supreme Court affirmed the trial court’s decision to admit the testimony of a witness concerning admissions that had been made by one or both of the defendants while riding in the witness’ car. The court held that the statements, whether attributable to one or the other defendant, were admissible against both under the adoptive admissions exception to the hearsay rule.

       The court instructed on consciousness of guilt, mentioning all the evidence and not only the defendant’s apprehension in Florida. The court also charged as to the function of the jury in this regard, and noted that flight does not create a presumption of guilt. The jury instruction provided in part that the jury should consider “the length of time between the offense and the first evidence that the defendant had at some point traveled to Florida, that there may be reasons for this fully consistent with innocence. You may include the fact that we live in a mobile society.” The court’s instruction clearly stated that consciousness of guilt was but one permissible inference to be drawn from the evidence of flight.

       The defendant, while not challenging the admission of the photograph in his main brief “as a result of counsel’s oversight,” raises that challenge in his reply brief and asks that we review this part of the issue. We do so, noting no prejudice to the state because the issues presented by the admission of the photograph are fully analyzed in the parties’ briefs.

       The state argues that neither the fingerprint card nor the mug shot is a statement and therefore that neither is hearsay. We find this argument to be unpersuasive. The trial court treated both as hearsay and ruled accordingly.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Joseph Picataggio et al. v. Vincent Romeo et al.
    (13116)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs December 9, 1994
    decision released February 14, 1995

      Dannel P. Malloy filed a brief for the appellants (defendants).

      Geoffrey S. Brandner and John Ponzini filed a brief for the appellees (plaintiffs).
   O’Connell, J.

This is a fraudulent conveyance action in which the defendants appeal from the granting of summary judgment in favor of the plaintiffs. The dis-positive issue is whether the trial court properly decided that no genuine issue of material fact existed. We reverse the judgment of the trial court.

The following facts are necessary for a disposition of this appeal. In late 1984 or early 1985, the plaintiffs became creditors of the defendant Vincent Romeo because of defective masonry work he had done on a stone wall on the plaintiffs’ property. On October 24, 1990, the plaintiffs obtained a judgment against the defendant Vincent Romeo based on this defective work.

In the interim, on June 20,1985, the defendant Vincent Romeo conveyed his interest in the subject real property to his wife, the defendant Maria Romeo. The sole consideration for this conveyance was “love and affection.” The defendants admit that the reason for the conveyance was that the defendants’ son was involved in an automobile accident while operating an uninsured motor vehicle owned by the defendant Vincent Romeo.

The plaintiffs brought the present action pursuant to General Statutes (Rev. to 1991) § 52-552, alleging that the June 20, 1985 conveyance from the defendant Vincent Romeo to his wife Maria Romeo was fraudulent. The defendants filed a special defense claiming that the transfer was made without intent to defraud creditors. Both parties filed motions for summary judgment with supporting affidavits. The affidavit of each defendant states that the June 20, 1985 conveyance was not made with intent to defraud creditors.

A summary judgment may be granted “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Town Bank & Trust v. Benson, 176 Conn. 304, 306, 407 A.2d 971 (1978); see Practice Book § 384. A material fact is one “which will make a difference in the result of the case.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The controlling issue in the present case is whether the parties intended to defraud their creditors.

“Whether the conveyance in question was fraudulent is purely a question of fact. . . . Fraudulent intent must be proved, if at all, by clear, precise and unequivocal evidence. ...” (Citations omitted; internal quotation marks omitted.) Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990).

A question of intent raises an issue of material fact, which cannot be decided on a motion for summary judgment. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).

“The function of the trial court, in summary judgment proceedings, is not to decide issues of material fact, but rather to determine whether any such issues exist.” Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). Here, the trial court properly identified intent as a genuine issue of material fact, but it should not have proceeded to decide that issue. “The resolution of genuinely disputed issues must be left to later determination after a full hearing.” Id.

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

In this opinion the other judges concurred.

       The defendants also raised the following issues: (1) “Whether the transfer of real property from the defendant-appellant, Vincent Romeo, to the defendant-appellant, Maria Romeo, was fraudulent?” (2) “Whether there is sufficient evidence to find that the transfer of real property from the defendant-appellant, Vincent Romeo, to the defendant-appellant, Maria Romeo, was made with the intent to defraud creditors?”

       General Statutes (Rev. to 1991) § 52-552 was repealed shortly after this action was commenced and replaced by the Uniform Fraudulent Transfer Act. General Statutes §§ 52-552a through 52-552k.

       The defendant Vincent Romeo attached copies of income tax returns and a balance sheet purporting to show that he was not judgment proof.

       Practice Book § 384 provides as follows: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”


text:
    Anne Gallant v. Michael Esposito
    (12668)
    O’Connell, Foti and Landau, Js.
    Argued October 27, 1994
    decision released February 14, 1995

      Louis I. Parley, for the appellant-appellee (defendant).

      Diane Polan, for the appellee-appellant (plaintiff).
   O’Connell, J.

This is a dissolution of marriage action in which the defendant appeals from the trial court’s postjudgment order increasing his child support payments. He claims that the trial court improperly treated employer contributions to a corporate pension plan as includable in his income for purposes of determining his support payment obligations.

The plaintiff filed a cross appeal, claiming that the trial court (1) improperly refused to order alternate security for child support and (2) improperly refused to award her counsel fees.

We affirm the judgment of the trial court on both the appeal and the cross appeal.

When the parties’ marriage was dissolved on October 8,1992, the plaintiff was awarded custody of their minor child and $142 per week in child support. The defendant was ordered to post security for the support payments in the form of a lien against his shares in a closely held corporation. In May, 1993, the plaintiff moved for modification of child support based on a change of circumstances. Following an evidentiary hearing, the trial court increased the defendant’s child support payments by $37 per week. The defendant appealed.

The genesis of this proceeding was the plaintiff’s five page, sixteen paragraph motion to modify. The plaintiff alleged, inter alia, that the defendant had filed a petition in bankruptcy (paragraph three), that the defendant had a new position as a corporate officer (paragraph nine), that the defendant was deferring compensation into pension funds rather than receiving additional income in order to avoid paying increased child support (paragraph ten), that the defendant had not noted the required lien on his corporate shares (paragraph twelve), that the defendant did not intend to note the lien on his corporate shares (paragraph twelve), that the defendant claimed that the bankruptcy code prevented the plaintiff from enforcing the lien (paragraph thirteen), that the defendant had testified in the bankruptcy proceeding that he did not own any shares in the corporation (paragraph fourteen), and that the lien ordered by the trial court in the dissolution proceeding was now of no value (paragraph fifteen).

The plaintiff contended that the foregoing allegations constituted a substantial change of circumstances entitling her to an increase in child support as well as a bond for security for payment of child support and attorney’s fees.

Modification of support is governed by General Statutes § 46b-86 (a), which empowers a trial court to modify a prior order upon a showing of a substantial change in circumstances. “Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine the initial award of . . . support are relevant to the question of modification. . . . These require the court to consider, without limitation, the needs and financial resources of each of the parties and their children, as well as such factors as health, age and station in life.” (Citations omitted.) Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981).

This court has repeatedly held that the trial court is not required to make specific, detailed findings on each of the statutory factors it considers. Askinazi v. Askinazi, 34 Conn. App. 328, 332, 641 A.2d 413 (1994). We do require, however, that the record contain some indication as to the reasoning of the trial court in exercising its discretionary powers. Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992), citing Markarian v. Markarian, 2 Conn. App. 14, 17 n.2, 475 A.2d 337 (1984); Zern v. Zern, 15 Conn. App. 292, 295, 544 A.2d 244 (1988). In the present case, the trial court failed to set forth any reasoning whatsoever. Moreover, each of the allegations in the plaintiffs motion for modification is grounded on a factual basis requiring a finding of fact by the trial court.

Practice Book § 4061 explicitly mandates that it is the responsibility of the appellant to provide an adequate record for review. The record here does not contain a written memorandum of decision, nor does the transcript contain a statement of the trial court’s finding of facts and conclusions of law. The defendant did not seek articulation of the trial court’s decision pursuant to Practice Book § 4051. Absent a memorandum of decision clearly stating the court’s finding of facts and conclusions of law, we are left to surmise or speculate as to the existence of a factual predicate for the trial court’s decision.

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

In Holmes v. Holmes, 32 Conn. App. 317, 322-23, 629 A.2d 1137 (1993), we discussed the futility of our attempting appellate review when we have not been furnished with a proper record. Without a clear statement of the trial court’s findings and its conclusions of law, we would have to resort to conjecture. Without a written memorandum of decision or a clear recitation in the record of the court’s findings, we cannot determine if the court’s conclusions were reasonable. Id., 322; State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993) (O’Connell, J., concurring).

The defendant contends that he satisfied his obligation of furnishing a proper record when he supplied this court with a transcript of the trial court proceedings. This 146 page transcript of examination and cross-examination of witnesses and colloquies between counsel and the court is not a substitute for factual findings and conclusions of law. For us to study the conflicting testimony of witnesses and draw conclusions would make us fact finders — a role from which appellate courts are barred. Connecticut Resources Recovery Authority v. Connecticut Light & Power Co., 34 Conn. App. 246, 248, 641 A.2d 398 (1994).

“[Ujnder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 4.1 (a).

The defendant was not alone in his failure to provide an adequate record for review. The plaintiff also failed to furnish any record on which we could base a proper review of her cross appeal.

Because both parties have failed in their duty to furnish an adequate record for review, their claims must fail. Oakes v. New England Dairies, Inc., 219 Conn. 1, 16, 591 A.2d 1261 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       Page two of the motion to modify, which apparently contained part of paragraph three and all of paragraphs four through eight, is missing from the record supplied to this court. Examination of the trial court file disclosed that it is missing there also. No motion to rectify the trial court file was made. Practice Book § 4051. We cannot speculate on the contents of the missing paragraphs.

       The relevant portion of Practice Book § 4051 provides: “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues . . . or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. . . .”

        Holmes and Rios were both based on a version of Practice Book § 4059 that did not apply to postjudgment modification orders at the time the present case was heard. The reasoning of both cases is relevant, however, to the § 4061 adequate record requirement. An amendment to § 4059 made it applicable to postjudgment modifications decided after May 31, 1994.


text:
    William Palumbo v. George Papadopoulos
    (12916)
    Foti, Landau and Spear, Js.

      Argued November 29, 1994
    decision released February 14, 1995

      Donald W. Celotto, Jr., with whom, on the brief, was R. Eugene Torrenti, for the appellant (plaintiff).

      Timothy D. Miltenberger, with whom, on the brief, was E. Huntington Deming, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment for the defendant rendered after a trial to the court. He claims that the trial court improperly concluded that the defendant had established the applicability of the doctrine of equitable estoppel. We reverse the judgment of the trial court.

The facts, as reflected in the record, are essentially as follows. The plaintiff owned a 1988 Chevrolet Corsica, which he allowed his son, Robert Palumbo, to use. The defendant owned a 1970 Mercedes-Benz. On March 9, 1991, Robert Palumbo obtained the original certificate of title for the Corsica from his father’s place of business, forged his father’s name thereon, and drove to the defendant’s place of business where he exchanged his father’s car for that of the defendant. The defendant knew that Robert Palumbo was not the registered owner. The registered owner was William Palumbo. On March 12,1991, the plaintiff notified the defendant that the Corsica was his and sought a rescission of the trade. He thereafter left the Mercedes-Benz at the defendant’s place of business. The defendant inquired of the police as to whether the Corsica had been reported stolen. He received a negative reply and refused to return the Corsica.

The defendant appeared pro se. Although the pleadings did not raise equitable estoppel as a defense, the case was tried under that theory, and the court framed the opinion on equitable grounds. Cases are reviewed on the theory on which they were tried and decided. Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985); Housatonic Valley Publishing Co. v. Citytrust, 4 Conn. App. 12, 15, 492 A.2d 203 (1985).

Our law is well established that any claim of estoppel must be predicated on proof of two essential elements: (1) the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and (2) the other party must change its position in reliance on those facts, thereby incurring some injury. Lunn v. Tokeneke Assn., Inc., 227 Conn. 601, 607, 630 A.2d 1335 (1993); O’Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990). The party claiming estoppel has the burden of proof and whether that burden has been satisfied in a particular case is an issue of fact. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 699, 590 A.2d 957 (1991).

The plaintiff argues that there was no evidence presented to satisfy the first prong of the test, that is, that he did or said something calculated or intended to induce the defendant to believe that Robert Palumbo had authority to convey title to the Corsica. We agree.

The scope of our judicial review where the legal conclusions of the court are challenged is to “determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts [found] . . . are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Applying these principles to the present case, we note that the trial court found that the plaintiff’s son had forged the plaintiff’s name on the certificate of title. He then told the defendant that the car was his but that his father had placed his own name on the certificate of title for insurance purposes. The only factors relevant to the first element of the estoppel claim were that the plaintiff allowed his son to drive the Corsica, and that he left the certificate of title at his place of business where his son obtained it. These facts are insufficient to demonstrate that the plaintiff did anything to induce the defendant to believe that he had signed the certificate of title, or had authorized his son to convey title. The conclusion of the trial court, as to the applicability of equitable estoppel, is not supported by the facts found. For estoppel to exist, there must be misleading conduct resulting in prejudice to the other party. John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984). No such misleading conduct was demonstrated in this case.

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

In this opinion the other judges concurred.

       No written memorandum of decision was filed by the trial court. An oral memorandum of decision, however, signed by the court, was entered on September 24,1993, wherein the court stated that “the effort is by the plaintiff to blame everything on this defendant .... That’s just inequitable. ... I am trying to think of something that developed here that would indicate that this defendant is not entitled to that consideration, or entitled to have the equities viewed in that fashion, but I can’t.”


author: Per Curiam.

text:
    State of Connecticut v. Raymond Marquis
    (13373)
    Heiman, Speak and Hennessy, Js.
    Argued January 9
    decision released February 14, 1995

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, assistant state’s attorney, for the appellant (state).

      Matthew J. Collins, for the appellee (defendant).
   Per Curiam.

Our review of the record, briefs, and oral arguments of the parties leads us to conclude that the record is not adequate to afford review of the issues raised by the state.

The state’s appeal is taken from the trial court’s dismissal of the case on the application of both the state and the defendant, after the trial court denied the state’s motion for permission to videotape the testimony of the child victim out of the presence of the defendant. See General Statutes § 54-86g.

While the record discloses that the trial court found that the state had made a “prima facie” showing of entitlement to videotape the child’s testimony, the record fails to reflect a finding by the trial court that the state had satisfied its statutory burden of establishing “by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony.” General Statutes § 54-86g (a). Thus, it is impossible on the basis of the record before us to ascertain the basis on which the trial court denied the state’s motion for permission to videotape the testimony of the victim.

It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § 4051. Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993).

Our review of the trial court’s oral decision leaves us with the firm conviction that the legal and factual predicate for the trial court’s decision is unclear and ambiguous. “Moreover, to the extent that the trial court’s memorandum of decision may be viewed as ambiguous in this respect, we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment. Matza v. Matza, [supra, 226 Conn. 188]; Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992).” Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 773, 646 A.2d 790 (1994). Because the state, as the appellant, failed to file such a motion, we must assume that the trial court acted properly. Id., 773-74; Matza v. Matza, supra, 188.

The judgment is affirmed.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”


text:
    State of Connecticut v. Rodney Crosby
    (13384)
    O’Connell, Foti and Landau, Js.
    Argued November 8, 1994
    decision released February 14, 1995

      Susan M. Cormier, with whom, on the brief, was Michael S. Taylor, certified legal intern, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from judgments of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b) under one information, and assault in the second degree in violation of General Statutes § 53a-60 (a) under a separate information. The defendant was sentenced to a total effective sentence of seventy years.

On appeal, the defendant asserts that the trial court improperly (1) consolidated three informations for trial, (2) instructed the jury as to what evidence to consider in each case and as to the presumption of innocence, (3) excluded impeachment testimony, and (4) admitted identification evidence. The defendant also alleges that the evidence was insufficient to support the guilty verdict of carrying a pistol without a permit. We affirm the judgments of the trial court.

The jury could reasonably have found the following facts. On May 10, 1991, at approximately 3 a.m., the defendant went to the home of the victim, Kyong Flemming, at 1414 Stratford Avenue in Bridgeport. At the time, the victim and her two young daughters were at home. The defendant entered and threatened to “blow the victim’s brains out.” He fired one shot in the house and then proceeded to follow the victim outside where several more shots were fired. The victim called her ten year old daughter’s name, and when the child came outside she found her mother lying on the ground. The victim died of multiple gunshot wounds to the chest, abdomen and upper and lower extremities. The defendant gave a written statement later that evening and confessed to shooting the victim four or five times with his nine millimeter gun. The casings found at the scene and the bullets that killed the victim came from a nine millimeter gun.

At approximately 5 a.m. that same morning, Laurie Thompson observed the defendant outside her house on Sixth Street near Stratford Avenue in Bridgeport, holding a man at gunpoint and asking about the girls inside. Thompson was in the house with her friend Lisa Campfield. They ran out the back door but encountered the defendant about two blocks away near Pettiway’s Variety Store. The defendant shot Thompson in the leg with a handgun. A nine millimeter shell casing was found at the scene. The defendant also confessed to this shooting.

The third incident, which resulted in a declaration of mistrial after the jury failed to return a verdict on the charges of sexual assault and unlawful restraint, allegedly took place that same morning, on Union Avenue, after the murder. The alleged victim, D, had heard the gunshots and later had seen the body being moved from the scene of the crime. Thereafter, while she was walking home, she was allegedly restrained at gunpoint and sexually assaulted by the defendant who told her that he knew he was going to jail and that he had “shot two bitches.”

I

The defendant first claims that the trial court improperly granted the state’s motion to consolidate the three informations thereby raising the “potential for prejudice . . . greater than that which existed in Boscarino and Horne.”'

General Statutes § 54-57 and Practice Book § 829 permit a defendant to be tried jointly on charges arising from separate cases. "When a defendant stands accused of two or more similar offenses, they may be joined at trial if they are based on related acts that evince a common scheme, intent or motive. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). The question of joinder or severance rests in the sound discretion of the trial court. State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). The defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Whether a joint trial will be substantially prejudicial to the rights of the defendant means something more than that it will be less advantageous to the defendant. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982).” State v. Rose, 29 Conn. App. 421, 429-30, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992).

We recognize that the defendant’s claim of possible prejudice from a joint trial results from the fact that when alleged crimes are so similar in time, place and circumstance, there is a danger that the jury may use evidence of one crime to convict the defendant of the other crimes. See State v. Oliver, 161 Conn. 348, 288 A.2d 81 (1971).

“Our Supreme Court has held that a trial court should consider several factors in determining whether [a motion for joinder is proper]. These factors include: (1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred. . . . State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990).” (Citations omitted; internal quotation marks omitted.) State v. Rose, supra, 29 Conn. App. 430. Our review of the record leads us to conclude that joinder did not result in substantial injustice in this case.

The defendant was charged with crimes based on three discrete, easily distinguishable factual scenarios that were similar in time and locality. Although there were similarities, the charges were easily separable as the victims were different and the chronology clear. The evidence, presented over a four day period through nineteen witnesses, was neither so complex nor so confusing as to be in any manner incomprehensible to the jury. It was organized chronologically and presented logically. The evidence was not commingled. The defendant at no time raised an objection to the manner in which the evidence was presented.

Further, where evidence of one incident can be admitted at the trial of the other incidents, separate trials would provide the defendant no significant benefit, and under such circumstances he would ordinarily not be substantially prejudiced by joinder. State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987); State v. Grant, 33 Conn. App. 133, 138, 634 A.2d 1181 (1993). Evidence of a criminal defendant’s unconnected crime may be admissible when probative to show identity. State v. Smith, 10 Conn. App. 624, 629, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987). To be relevant on the issue of identity, a reasonable inference that the person who committed one crime also committed the other must be warranted. State v. King, 35 Conn. App. 781, 791, 647 A.2d 25 (1994). Here, evidence elicited as to an incident charged by one information was germane to the issues of identity and opportunity in either or both of the cases based on the other incidents.

The trial court did not abuse its discretion in granting the state’s motion to consolidate. The joinder of the three incidents for a single trial did not result in substantial injustice to the defendant.

II

The defendant next claims that the trial court improperly instructed the jury as to what evidence to consider in each case, and also as to the presumption of innocence.

A

The defendant argues that the trial court failed to provide any guidance to the jury regarding what evidence to consider in each case and to caution the jury not to consider the commission of one crime as evidence of the commission of another. The defendant acknowledges that he neither filed a request to charge nor took an exception to the court’s final instruction that he claims lacked the admonition. He claims review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in that the failure “violated the defendant’s constitutional due process rights by diluting the state’s obligations to prove each element of each crime beyond a reasonable doubt.”

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 239-40. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992).

The first two conditions of Golding are met here because there is an adequate record for review and the right not to be convicted except on proof beyond a reasonable doubt is a constitutional right. See Summerville v. Warden, 29 Conn. App. 162, 178 n.4, 614 A.2d 842 (1992), rev’d on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994). On the basis of a review of the merits, however, we conclude that no constitutional violation exists that clearly deprived the defendant of a fair trial. See State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

Our standard of review in cases where the defendant claims that the instructions violate constitutional due process protections is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled. State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993). We will reverse a conviction only if, in the context of the whole charge, there is a “reasonable possibility that the jury was misled in reaching its verdict.” State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989). We examine the charge as a whole to determine if it adequately guided the jury to a proper resolution of the issues presented. State v. Fleming, 198 Conn. 255, 268, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

Our review of the record leads to the conclusion that the trial court sufficiently distinguished the three separate incidents and each of the individual offenses. While it does not appear that the court gave a specific cautionary instruction, a reading of the entire charge makes it clear that proper guidance was given so that it is not likely the jury impermissibly intermingled evidence of one incident with that of either of the other two.

The defendant raises for the first time in his brief a claim that the trial court failed to “relate adequately the abstract rules of law to the facts of the case . . . [n]o reference was made to any specific evidence other than the defendant’s claim of intoxication as it applied to the element of intent.” He contends that he was deprived of his constitutional due process right to an adequately instructed jury.

Whether the trial court’s charge adequately relates the issues of law to the facts of a case depends on the particular circumstances of that case. We have recently decided several cases involving this issue. In State v. Lemoine, 33 Conn. App. 743, 641 A.2d 131, cert. granted, 230 Conn. 909, 644 A.2d 920 (1994), and State v. Wolff 29 Conn. App. 524, 616 A.2d 1143 (1992), we determined on the bases of the particular circumstances of each case, that the courts’ instructions failed to relate the issues of law adequately to the facts of the cases. In State v. Shanks, 34 Conn. App. 103, 640 A.2d 155, cert. denied, 229 Conn. 921, 642 A.2d 1216 (1994), we determined otherwise.

Our review of the whole instruction demonstrates that the elements of each crime are set forth clearly and separately. Also, the instruction sufficiently related the law to the facts of each crime charged. Because we cannot determine that the alleged constitutional violation clearly exists, we conclude that the defendant has failed to meet the third prong of Golding.

B

The defendant next claims that the trial court improperly instructed the jury as to the presumption of innocence. Specifically, the defendant claims the trial court’s instruction that “you must keep in mind that this rule is made to protect the innocent and not the guilty” violated the constitutional guarantees of due process and the defendant’s right to a fair trial. The defendant acknowledges that this claim was not properly preserved but seeks review under State v. Golding, supra, 213 Conn. 239-40. The defendant cannot prevail under Golding as it is clear from a reading of the court’s charge in its entirety that the instructions did not dilute the presumption of the defendant’s innocence or lessen the state’s burden of proof. “Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” (Internal quotation marks omitted.) State v. Tucker, 226 Conn. 618, 651-52, 629 A.2d 1067 (1993); see State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992); State v. Bush, 33 Conn. App. 253, 266-67, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994).

We have recently approved a similar instruction as to the presumption of innocence. See State v. Jaynes, 35 Conn. App. 541, 556-59, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994) (similar instruction did not violate defendant’s right to due process and to fair trial); see also State v. Zaporta, 36 Conn. App. 250, 268-69, 648 A.2d 880 (1994).

We review the charge as a whole and conclude that the trial court adequately conveyed to the jury the presumption of the defendant’s innocence and the state’s burden of proof.

Ill

The defendant next posits that the trial court improperly excluded impeachment testimony from a defense witness. The facts relevant to this claim are as follows. The defendant presented a witness, Theodora Diaz, who testified that both Laurie Thompson, the victim of the assault charge, and D, the woman who was the alleged victim of the sexual assault, lived in her general neighborhood. She further testified that she had spoken to people in the community about both women on more than one occasion. She was then asked if she knew of the women’s reputations for truth and veracity. The court sustained the prosecutor’s objection.

The defendant alleges that he was deprived of his state and federal constitutional rights to a fair trial by not being allowed his right to confrontation.

A criminal defendant’s right to impeach the witnesses against him implicates his constitutional right to confrontation. State v. Rodriguez, 180 Conn. 382, 393, 429 A.2d 919 (1980). Cross-examination to elicit facts tending to show lack of veracity is a matter of right and may not be unduly restricted. State v. Oehman, 212 Conn. 325, 330, 562 A.2d 493 (1989). That right is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985). Not every evidentiary ruling that denies a defendant a line of inquiry is constitutional error. Id., 403. The court may exercise discretion in this regard; State v. Martin, 201 Conn. 74, 87, 513 A.2d 116 (1986); and may disallow reputation evidence when the proponent fails to provide a sufficient foundation. State v. Bryant, 17 Conn. App. 525, 530, 554 A.2d 1105 (1989). The record discloses that no proper foundation was provided to show either that the witness had personal knowledge of the women’s general reputations in the community for veracity, or that those to whom she spoke about the women had an opportunity to form, and did form, opinions as to the women’s veracity.

We cannot conclude that the trial court abused its discretion in excluding this testimony for lack of a proper foundation.

IV

The defendant also alleges that the trial court improperly allowed out-of-court identification evidence of the defendant by Thompson, the victim of the assault, that was unnecessarily suggestive and tainted her subsequent identifications. This claim was not raised at trial. The defendant claims reviewability under Golding.

Following her injury, Thompson was taken to a hospital. She was administered medication and when she awoke she identified the defendant, who was standing in the doorway, as the person who had shot her. Sometime thereafter, Thompson gave the police a statement and also identified the defendant in a photographic lineup and photographic array. She also made an in-court identification.

We conclude that the defendant has not met the first prong of the Golding analysis for review of his claim. The first criterion, which requires that the record be adequate to review the claim, was designed to avoid remands for the purposes of supplementing the record. State v. Leroy, 33 Conn. App. 232, 235, 635 A.2d 305 (1993), cert. denied, 228 Conn. 922, 638 A.2d 36 (1994).

“In determining whether identification procedures violate a defendant’s due process rights, the 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 examination of the ‘totality of the circumstances.’ See State v. Gold, 180 Conn. 619, 656-58, 430 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Piskorski, 177 Conn. 677, 741, 419 A.2d 866 (1979); State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979); State v. Smith, 165 Conn. 680, 684, 345 A.2d 41 (1974); see also Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

Without question, almost any one-to-one confrontation between a victim and a suspect must convey the message that the police have reason to believe him guilty, and is therefore unnecessarily suggestive. State v. Gordon, 185 Conn. 402, 414-15, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). We cannot end here, however. The second prong is a determination of reliability. This determination requires the fact-finding function of the trial court. “[I]n determining whether, despite an unnecessarily suggestive procedure, an identification is reliable, the trial court’s observation of witnesses carries less weight than in other fact finding contexts.” Id., 416. The court must, however, find facts sufficient for a reviewing court to examine the legal question of reliability. Id.

It is the defendant’s burden to prove that, under the totality of the circumstances, this identification was so unreliable as to be inadmissible into evidence. State v. Rose, supra, 29 Conn. App. 426. The “totality of circumstances,” by necessity, requires the determination of a number of factors used to test the reliability of the out-of-court identification. State v. Gordon, supra, 185 Conn. 416. The appellant bears the burden of providing us with a record adequate to review his claim. State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Without the necessary factual and legal conclusions furnished by the trial court, we would be left to speculate. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

In this case, no motion to suppress was filed and no evidentiary hearing was held regarding the identification evidence at issue. Therefore, no findings are available for our review of the legal question of reliability. We will not review the unpreserved claim.

V

Finally, the defendant argues that the evidence was insufficient to enable the jury to convict him of carrying a pistol without a permit. Specifically, he argues that to convict him under General Statutes § 29-35, the state must prove that the weapon involved was a pistol as defined pursuant to § 29-27, that is, having a barrel less than twelve inches in length.

“The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. . . . The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Citations omitted.) State v. Wagner, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

Our Supreme Court recently overruled State v. Brown, 173 Conn. 254, 377 A.2d 268 (1977), to the extent that it required the state to introduce direct numerical evidence of the length of the barrel of a handgun to support a conviction under General Statutes §§ 53a-217 and 53a-3 (18). State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994).

Our review of the record shows that the testimony of Lisa Campbell indicated that the gun was not as long as a piece of paper she was shown. That paper, marked in evidence, is less than twelve inches. The evidence was sufficient for the jury to infer that even if the pistol was twelve inches, the barrel as part of the whole, had to be less than twelve inches in length.

Therefore, we conclude that the evidence was sufficient to sustain the defendant's conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       The defendant was found not guilty on this second information of attempted assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1). A mistrial was declared on a third information to the charges of sexual assault in the first degree in violation of General Statutes § 53a-70a and unlawful restraint in violation of General Statutes § 53a-95.

       The defendant was committed to the custody of the commissioner of correction for the term of life on the count of murder, and for the term of five years on each of the other counts, with all sentences imposed to be served consecutively.

       In Boscarino and Home, our Supreme Court held that the trial court improperly consolidated the cases against each defendant because the factual similarities between the cases, although insufficient to make the evidence in each case admissible at the trial of the other cases, impaired the defendant’s right to the jury’s fair and independent consideration of the evidence in each case. State v. Horne, 215 Conn. 538, 546-51, 577 A.2d 694 (1990); State v. Boscarino, 204 Conn. 714, 719-25, 529 A.2d 1260 (1987).

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       The trial court instructed that there were three separate and distinct informations, and went through each separately during the charge. It was clear that the jury was instructed that not only was each count separate and distinct, but also that each information was separate and distinct.
      The court concluded: “When you commence your deliberations, I am also going to include along with the informations — and I would ask that you either each read the informations or have your foreperson read them aloud so that you thoroughly understand the informations, and I am also going to send in for your aid and comfort, perhaps, what I have termed an elements sheet. And it will set forth merely the bare bones elements of everything that I have explained to you as part of my instructions. Please do not take them out of context. You must take them in consideration with all of my other instructions; but I know that certainly with several counts on three separate informations involved here, it will be of some use to you just merely to see what these bare bones elements are. So you will also have that with you. I will also send in to you a sheet describing your possible verdicts in each count on each of the informations. Hopefully, that will be of some use to you, also.”

       The court’s instruction stated in part: “Every person . . . charged with the commission of a crime is presumed to be innocent until proven guilty. . . . [H]e continues to be innocent until such time as the evidence . . . [satisfies] you beyond a reasonable doubt that he is guilty. . . . The presumption of innocence does not have the effect of evidence itself. Its only effect is to place upon the state the burden of proving the defendant’s guilt beyond a reasonable doubt. . . . It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged and by making the state meet its burden of [proof] beyond a reasonable doubt. But you must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence, proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it is the sworn duty of the jury to enforce the law and render a guilty verdict.”

       The jury failed to reach a verdict in D’s case.

       The following was elicited from the witness:
      “[Defense Counsel]: Okay. Do you know a girl named Laurie Thompson?

        “A. Yes, I know her. I know of her.
      “Q. Do you know whether or not she has any reputation in the community for truth and veracity?
      “A. Yes, she does, with a bad reputation.
      “Q. A bad reputation?
      “A. Bad-
      “[State’s Attorney]: Objection, there’s no foundation for that.
      “The Court: Sustained.
      “[Defense Counsel]: Do you know [D]?
      “A. Yes.
      “Q. How long do you know [D]?
      “A. Not that well. I seen her a few times.
      “Q. Do you know people who know her?
      “A. Yes.
      “Q. Do you know if she has a reputation in the community for truth?
      “[State’s Attorney]: Objection. Insufficient foundation.
      “The Court: Sustained.
      “[Defense Counsel]: Do they live — do you know whether or not they live in the same general neighborhood that you live in?
      “A. Yes, they do. About two blocks away from me.
      “Q. And do you know how long approximately both girls lived in that neighborhood?
      “A. No, I wouldn’t know how long they lived there, but they lived there same amount of time as I have.
      “[Defense Counsel]: Your Honor, same offer.
      “[State’s Attorney]: Still no foundation.
      “The Court: Still no foundation for her reputation in the community.
      “[Defense Counsel]: For truth and veracity.
      “[Defense Counsel]: Have you had any occasion to talk with members of the community as to the circumstances in which people you know had anything to do with Laurie or [D]?
      “A. Yes.
      “Q. On more than one occasion?
      “A. More than once.
      “Q. As to which girl or both?
      “A. Both.
      “Q. As to your personal knowledge of each of these girls, how well do you know them personally? I may have asked you before, I don’t remember at this point.
      “A. My personal knowledge of them is — I know them personally as seeing them. I don’t know them as associating myself with them too much. But I see them a lot at night and I don’t know if I could say what I see them doing, but — ”

       The defendant does not claim review under the plain error doctrine.

       General Statutes § 29-27 provides that “[t]he term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.”