author: Dupont, C. J.

text:
    State of Connecticut v. Paul DeFusco
    (10255)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 8
    decision released March 31, 1992

      John R. Donovan, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom were Lisa A. Riggione, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Susan C. Marks, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant challenges the trial court's denial of his motion to suppress evidence seized pursuant to a search warrant. Specifically, the defendant claims that the affidavit used to secure the warrant authorizing a search of his residence did not establish the requisite probable cause to justify the issuance of the search warrant. As part of this claim, the defendant contends that the warrant affidavit improperly relied on items seized from his garbage. The basic issue of this appeal is whether the Connecticut constitution prohibits a warrantless seizure and search of garbage left outside the curtilage of a defendant’s residence. Because we hold that article first, § 7, of the Connecticut constitution, like the fourth amendment to the United States constitution, does not prohibit the war-rantless search and seizure of garbage left at the curbside for collection and disposal by waste removal personnel, we conclude that the trial court properly determined that the search warrant was supported by probable cause. We, therefore, affirm the judgment of the trial court.

On October 12, 1990, the Hamden police executed a search warrant for 19 Building Brook Road, the residence of the defendant and his wife. In the course of their search, the police seized narcotics, drug paraphernalia, weapons and cash. The defendant was then arrested and charged with various narcotics offenses.

The warrant authorizing the search was based on the affidavit of two members of the Hamden police department who had experience in conducting narcotic investigations that led to arrests and convictions. It stated that on August 15, 1990, Investigator Charles Grady received information from a “known and reliable informant” who had been used numerous times for various narcotics cases, alleging that the defendant, a resident of 19 Building Brook Road in Hamden, was selling ounce quantities of cocaine from his residence and sold one half of a kilo every two weeks. The informant related, according to the affiant, that the defendant was a construction foreman and supplemented his income from sales of cocaine. The informant described the vehicles owned by the defendant. The informant also described the person from whom the defendant allegedly received his cocaine and how the two of them obtained the cocaine from two Hispanic males. Checking Hamden police records, the affiants found that there had been an anonymous complaint in 1988 that the defendant was selling ounce quantities of cocaine from his home on Building Brook Road.

On September 5,1990, Grady conducted a “garbage pull” from in front of the defendant’s house. As a result of that garbage pull, two prescription bottles bearing the defendant’s name and three small glass-ine bags, one of which was stamped “Bad Med,” were found. The affiant stated that the glassine bags were the type used to package cocaine and heroin. Further, it was alleged that on September 26, 1990, a second garbage pull was made. Among the contents of the garbage seized on September 26 was a prescription bottle bearing the defendant’s name, several short cut straws, and two glassine bags of the type used to package cocaine and heroin. On September 27, 1990, the police again met with the confidential informant, who told them that the defendant had a longtime heroin addiction. The police checked with the department of motor vehicles and the telephone company to confirm that the defendant lived in the house in question.

After the trial court denied his motion to suppress, the defendant entered a conditional plea of nolo con-tendere, pursuant to General Statutes § 54-94a, to one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). He now appeals pursuant to § 54-94a and Practice Book § 4003, claiming that it was improper for the trial court to have denied the motion to suppress.

Article first, § 7, of our constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Like the fourth amendment to the United States constitution, which it closely resembles, article first, § 7, safeguards the privacy, the personal security, and the property of the individual against unjustified intrusions by agents of the government. State v. Barton, 219 Conn. 529, 540, 594 A.2d 917 (1991).

“One of the principal means by which the warrant requirement protects the privacy and property of the individual is by the interposition of a neutral and detached magistrate who must judge independently the sufficiency of an affidavit supporting an application for a search warrant. Whether applying the fourth amendment or article first, § 7, of our own constitution, we have frequently recognized that a magistrate issuing a warrant cannot form an independent opinion as to the existence of probable cause unless the affidavit supporting the warrant application sets forth some of the facts upon which the police have relied in concluding that a search is justified. . . . When a police officer seeking a search warrant relies on hearsay information supplied by confidential informants rather than on personal knowledge and observations, certain additional facts are necessary to ensure that the magistrate’s decision to issue the warrant is informed and independent.” Id., 540-42.

State v. Barton, supra, contains a reformulation of the standard to be applied by our courts in reviewing the sufficiency of a search warrant application based on information supplied to the police by a confidential informant. The Barton court concluded that “a ‘totality of the circumstances’ analysis of the probable cause requirement of article first, § 7, of our constitution means simply this: When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” Id., 544-45.

Applying the Barton analysis to the present case, we agree with the trial court that the information supplied by the informant, standing alone, was insufficient to establish probable cause. Where the suspicions engendered by an informant’s tip would not have independently justified the issuance of a warrant, however, “the magistrate was not required to disregard the tip altogether, but could consider whether the tip and the [information gathered by the independent police] investigation together ‘bridged the gap’ between mere suspicion and probable cause.” State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991); State v. Delmonaco, 194 Conn. 331, 341, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).

This brings us squarely to the issue of whether, consistent with article first, § 7, of our constitution, or the fourth amendment to the United States constitution, the police may search a person’s garbage placed at the curbside for disposal. If not, items seized in the search cannot provide the basis for seeking a warrant or for the magistrate’s determination that probable cause exists to issue a search warrant. See Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988); State v. Ostroski, 201 Conn. 534, 544-45, 518 A.2d 915 (1986). In the present case, without the corroborating information obtained from the garbage pulls, deficiencies in the warrant affidavit regarding the information supplied by the informant would prevent mere suspicion from ripening into a determination of probable cause.

In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988), the United States Supreme Court determined that the fourth amendment to the United States constitution does not prohibit warrantless searches of garbage left outside the curtilage of a residence, namely, at the curb of a public street, for collection and disposal. The defendant, however, asks us to conclude that article first, § 7, of the Connecticut constitution mandates a different result under nearly identical facts.

Although individual states may construe their own constitutions as requiring greater restrictions on police behavior as to search and seizure than does the federal constitution; State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); State v. Geisler, 25 Conn. App. 282, 594 A.2d 985, cert. granted, 220 Conn. 918, 597 A.2d 342 (1991); the individual constitutional concepts of privacy in the states do not supply the parameters of the fourth amendment to the United States constitution for use by the federal courts. California v. Greenwood, supra, 39. Thus, the federal courts are not bound to look to the states to determine or to follow what the states have done in interpreting their own constitutions that contain provisions similar to those of the federal government. Likewise, the state courts are not required to follow federal constitutional law when interpreting state constitutional provisions as long as they do not diminish the protection afforded by the federal constitution. Our question in this case is whether the Connecticut constitution prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a residence, but adjacent thereto.

The courts of Connecticut “have turned to our own constitution, when appropriate, to afford our citizens broader protection of certain personal rights than that afforded by similar or even identical provisions of the federal constitution. . . . In doing so, we acknowledge the concern for interaction between this court and the United States Supreme Court. Yet, in evaluating federal constitutional claims by a litigant, we stand on a different footing than when evaluating claims under our state constitution.” (Citations omitted.) State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988). In interpreting our state constitution, our courts are not bound to adopt the federal interpretation of consonant federal constitutional provisions. “Our system of federalism requires no less. But of even weightier concern is the authority of our state constitution, the fundamental charter of our state, and it is this court’s duty to interpret and enforce our constitution. . . . Thus, in a proper case ‘the law of the land’ may not, in state constitutional context, also be ‘the law of the state of Connecticut.’ ” Id., 113-14.

This state’s courts have deviated, on occasion, from federal law in cases involving the fourth amendment to the United States constitution in order to grant our citizens greater protection than that given by the federal constitution. Our courts have done so, for example, when our highest federal court has created exceptions to or deviated from rules previously enunciated by it. Connecticut’s appellate courts have not been hesitant to continue to grant its citizens the same protection as did the “old” federal decisions, when the United States Supreme Court has retreated from a previously enunciated broad protection reading of the fourth amendment. See, e.g., State v. Marsala, supra; State v. Geisler, supra. Thus, in State v. Marsala, supra, our Supreme Court refused to follow United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), and gave our citizens the protection of the exclusionary rule, under our constitution, undiluted by a good faith exception, as allowed in Leon. Until Leon, a broad exclusionary rule under the federal constitution had been a constant in fourth amendment analysis, having been first announced in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), and made applicable to the states through the fourteenth amendment to the United States constitution in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The Marsala court interpreted our state constitution to allow the maintenance of a constitutional status quo that had existed for our citizens for at least twenty-nine years.

In State v. Geisler, supra, this court refused to follow New York v. Harris, U.S. , 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Harris also created an exception to the exclusionary rule under the federal constitution, and held that evidence obtained outside a residence, immediately following an illegal warrantless arrest made in the residence, was admissible at trial. Such evidence had been previously banned as violative of the fourth amendment. See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Our conclusion in Geisler aligned our state constitutional protections with those protections long afforded by the federal constitution prior to Harris and followed by the courts of this state. See, e.g., Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). In Geisler, as the Supreme Court had done in Marsala, we read our state constitution to maintain the constitutional status quo ante, thereby permitting Connecticut’s citizens and its courts to rely on privacy protections that had long been a part of our constitutional jurisprudence.

Our courts, however, have not yet extended state constitutional protections against unreasonable search and seizures beyond those protections delineated by well settled interpretations of the federal constitution. That is, our state constitution has not been interpreted to afford search and seizure protections not previously recognized under the federal constitution. See, e.g., State v. Dukes, supra. In that case, our Supreme Court concluded that the state constitution did not prohibit the search of a person and his automobile incident to his lawful custodial arrest. In doing so, the court interpreted our state constitution to provide no more protection against search and seizure than that previously determined to be provided by the federal constitution in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973), and New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).

The issue of this case does not involve a dilution of a previously established federal constitutional right through the creation of an exception to a prior rule. The cases interpreting article first, § 7, have given due recognition to firmly established interpretations of the federal constitution, while at the same time protecting the reasonable reliance of Connecticut’s citizens and courts on the long-standing protections previously afforded to them under the federal constitution. When the United States Supreme Court has interpreted the fourth amendment to diminish those protections that our citizens have come to expect, our courts have refused similarly to diminish those protections under our constitution.

The issue presented by California v. Greenwood, supra, was a first for the United States Supreme Court. No previous United States Supreme Court case had recognized an expectation of privacy in garbage that prohibited, because of the fourth amendment to the United States constitution, a warrantless search and seizure of it. Nor had the fourth amendment or our constitution been recognized by our appellate courts as affording such a right. Greenwood does not retreat from a previously recognized right afforded to the people of this state and, therefore, does not involve a case in which Connecticut citizens and courts had come to rely on a protected right no longer available under the federal constitution. Our comments as to Greenwood form a backdrop to our decision but are in no way decisive.

We now turn directly to the question of whether garbage found outside the curtilage of a home, in Connecticut, is to be afforded search and seizure protection under our state constitution. “Because the constitutional prohibition against unreasonable searches and seizures affords protection only against invasions of reasonable expectations of privacy . . . our threshold inquiry is whether the defendant in fact possessed a reasonable expectation of privacy in the [garbage]. . . . Absent such an expectation, the subsequent police action has no constitutional ramifications.” (Citations omitted.) State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986).

The determination of whether a reasonable expectation of privacy exists is fact specific and requires a two part inquiry. The first inquiry is whether the individual has exhibited an actual subjective expectation of privacy, and the second one is whether that expectation is one that society is prepared to recognize as objectively reasonable. See State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The place searched is highly relevant to this analysis because expectations of privacy in some places are afforded greater constitutional legitimacy than in others. Id., 94-95; State v. Brown, supra, 356; State v. Santiago, 26 Conn. App. 481, 602 A.2d 40 (1992).

In no site is there an absolute federal or state constitutional protection of privacy; Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); but privacy expectations vary as does our societal interest in protecting that privacy, depending upon whether the area is a garage; State v. Brown, supra; an open field; Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); a car; Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, (1970); a closed container; United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); a porch; State v. Santiago, supra; the interior of a home; Payton v. New York, supra; or the heat emanating from a garage in which it is suspected marihuana is being grown; United States v. Penny-Feeney, 773 F. Sup. 220 (D. Haw. 1991).

We agree with the defendant that many details of a person’s otherwise private life can often be found in his or her garbage. “A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target’s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests.” California v. Greenwood, supra, 50 (Brennan, J., dissenting). It is true that a sealed trash bag may harbor telling evidence of the intimate activity associated with the sanctity of the home and the privacies of life that our constitution is designed to protect. See id., 50-51. We do not believe, however, that the content of our trash is the relevant focus of our inquiry, but, rather, the site of its placement for disposal, and its accessibility to third persons because of that site. See State v. Ronngren, 361 N.W.2d 224 (N.D. 1985). In other words, the focus of any analysis is an owner’s expectation of privacy and society’s acceptance of that expectation as objectively reasonable. State v. Mooney, supra, 94.

We agree with the Greenwood majority that, notwithstanding the arguable privacy concerns that a person might ascribe to his garbage, the defendant here “placed [his] refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through [the defendant’s] trash or permitted others, such as the police, to do so. Accordingly, having deposited [his] garbage ‘in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,’ United States v. Reicherter, 647 F.2d 397, 399 ([3d Cir.] 1981), [the defendant] could have had no reasonable expectation of privacy in the inculpatory items that Pie] discarded.” California v. Greenwood, supra, 40-41. In our view, this conclusion of the Greenwood court is but another application of the oft-repeated maxim of search and seizure law that “[w]hat a person knowingly exposes to the public . . . is not a subject of [constitutional] protection.” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

Moreover, property left in areas accessible to the public can lose the constitutional protection because it has been abandoned. Although the relevant inquiry in determining whether property has been abandoned in the constitutional sense focuses not on strict property law concepts but on “whether the defendant manifested by his conduct an intent to shed ... his expectation of privacy in the item or container involved”; State v. Mooney, supra, 107; the defendant’s proprietary interests regarding the property are nevertheless relevant to this inquiry.

It is often stated that “the proper ‘test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.’ ” Id., quoting United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989). The act of leaving garbage at the curbside for disposal, however, necessarily casts the appropriate inquiry in a distinctly different way. The question here is whether a person can discard property in a public manner and therefore manifest an intention to relinquish all possessory or ownership interest in the item, but, nonetheless, retain a reasonable expectation of privacy in the object. The act of placing garbage at a curb of a public street for the purpose of permanent disposal by strangers manifests an intent to relinquish ownership of the garbage, and such conduct is necessarily inconsistent with continued privacy expectations in the items contained therein. For this reason, we find the cases relied on by the defendant, which protect garbage placed outside the curtilage from warrantless searches under state constitutional analyses; State v. Tanaka, 67 Haw. 658, 701 P.2d 1274 (1985); State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990); State v. Boland, 115 Wash. 2d 571, 800 P.2d 1112 (1990); to be unpersuasive. We conclude that such property has been abandoned for purposes of constitutional search and seizure protections.

Because the defendant voluntarily left his garbage in a public place, under circumstances indicating that he never intended to see it again, he retained no reasonable expectation of privacy in it, and it lost any immunity from search and seizure that it may have had while within the curtilage of his residence. Article first, § 7, like the fourth amendment to the United States constitution, did not protect the defendant from a war-rantless search of his garbage under those circumstances.

Because the warrantless search of the defendant’s garbage was permissible, the evidence seized during that search could properly be used by the magistrate to determine whether the search warrant application established probable cause to search the defendant’s residence. We must now determine whether, in light of all of the information contained in the search warrant affidavit, the warrant authorizing the search of the defendant’s home was supported by probable cause.

Applying State v. Barton, supra, to the facts of this case; see footnote 4, supra; we conclude that the information contained in the warrant application, and all reasonable inferences drawn from those facts, presented sufficient indicia of reliability to justify the issuance of a search warrant. Here, the police had information, both recent and from a previous time, suggesting that the defendant was involved in the sale of illegal narcotics. The reliability of that information was substantiated by items obtained from the garbage pulls, which items are commonly associated with illicit drug possession and sale. Moreover, “[i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate’s determination. . . . The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.” (Citations omitted.) State v. Johnson, supra, 565. We, therefore, conclude that the facts set forth in the affidavit provided a substantial basis for the magistrate’s conclusion that there was probable cause to believe that illegal drugs and drug paraphernalia would be found in the defendant’s home.

The trial court properly denied the defendant’s motion to suppress the evidence obtained in the search of the defendant’s residence pursuant to the search warrant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The garbage was taken by the Hamden police after it was put out for collection. The record does not establish the type of container in which the defendant’s garbage was stored when it was put out for collection and then pulled. A solid waste ordinance adopted by the Hamden legislative council, however, requires storage of garbage in a closed, watertight container and provides that such containers may be placed at curbside no more than twenty-four hours prior to collection. The trial court relied on that local ordinance in determining the issues presented by this appeal. Neither party disputes the trial court’s use of the ordinance in the court’s analysis of the defendant’s reasonable expectation of privacy in his garbage.

       The warrant affidavit also noted that garbage pulls were attempted on September 12 and 19,1990, but that no garbage was placed outside on either date.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       The trial court decided this case under State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). That case evaluated a warrant affidavit based on information obtained from a confidential informant as enunciated by the United States Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Subsequently, State v. Barton, 219 Conn. 529, 533, 594 A.2d 917 (1991), held that the determination of probable cause as provided in article first, § 7, of our state constitution is to be made pursuant to the “totality of the circumstances” analysis used by the United States Supreme Court to determine probable cause under the fourth amendment to the federal constitution in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
      The defendant conceded at oral argument that we must decide his appeal under State v. Barton, supra, notwithstanding the fact that Kimbro was controlling authority at the time of the challenged search. We agree that Barton has such retroactive effect. See State v. Ryerson, 201 Conn. 333, 340, 514 A.2d 337 (1986). In fact, in Barton itself, and in State v. Johnson, 219 Conn. 557, 594 A.2d 933 (1991), decided the same day as Barton, the new rule enunciated in the Barton decision to uphold search warrants was applied, although Kimbro had been the law at the time of the challenged searches. Moreover, this court has already “follow[ed] the lead of the Supreme Court in Barton and Johnson and reviewed] the warrant and accompanying affidavit under Gates” notwithstanding the fact that Kim-bro was controlling authority at the time of the challenged search. State v. Payne, 25 Conn. App. 428, 432 n.2, 594 A.2d 1035, cert. denied, 220 Conn. 915, 597 A.2d 337 (1991); see also State v. Anziano, 26 Conn. App. 667, 672, 603 A.2d 415 (1992).


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Douglas W. Buster
    (9957)
    Dupont, C. J., O’Connell and Norcott, Js.

      Argued February 10
    decision released April 7, 1992

      Michael A. Fitzpatrick, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55a (a) and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). He was sentenced to a total effective term of twenty-five years incarceration.

On appeals, the defendant claims that the trial court (1) improperly admitted into evidence certain statements of a nonparty witness contained in the written statement of another witness, pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), (2) abused its discretion in denying the defendant the opportunity to present certain surrebuttal evidence, and (3) improperly denied motions for judgment of acquittal because there was insufficient evidence to support the convictions. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim, Robert J. Cioppa, Jr., and a friend, Gary Lester, drove into the parking lot of a Bridgeport housing project at about 12:30 a.m. on March 4, 1989, seeking to buy crack cocaine. Cioppa and Lester had bought drugs there twice earlier in the evening of March 3, 1989. Upon driving into the lot, Cioppa was approached by a drug dealer named Sean, who had sold him narcotics earlier that night. The defendant then approached Cioppa’s car window in an attempt to sell him drugs. When Cioppa indicated that he wanted to buy drugs from Sean instead, the defendant drew a gun.

Behind Sean and the defendant was Ronell Hanks, with whom Cioppa had attended high school. Cioppa asked Hanks to intervene in order to prevent the defendant from doing anything with the gun. When the defendant threatened to shoot Hanks, Cioppa attempted to drive away. The defendant, however, fired at Cioppa, fatally wounding him. From the car’s front passenger seat, Lester backed the vehicle into the street and steered it along the road until he could get behind the steering wheel and drive to Griffin Hospital in Derby, where Cioppa was pronounced dead.

At trial, the state presented evidence from several witnesses that it was the defendant who fatally shot Cioppa. Lester testified that although he did not see the defendant’s face, the assailant was large and heavyset. Lester testified that one shot was fired from a weapon with a large barrel between seven and eight inches long. Ala Carter, a resident of the housing project, testified that she saw a car enter the parking lot and heard its driver ask for drugs. She testified that the driver was not seeking out the defendant, who ran to the car, and that just prior to the shooting, she heard the defendant tell Hanks to “mind [his] business.” Carter testified that the defendant shot the driver with a small gun after being rebuffed in his attempt to sell him drugs. She testified that she did not see anyone else there with a gun other than the defendant. Later, the defendant elicited testimony showing that Carter was not in the parking lot at the time of the shooting.

Jared Fleming also testified that he saw Cioppa’s car enter the lot and heard the discussion between the defendant and Cioppa. He testified that both the defendant and Hanks had guns, and that he heard a gunshot but did not see who shot Cioppa. At this point, pursuant to State v. Whelan, supra, the court admitted into evidence, as a prior inconsistent statement, a written statement Fleming had given to the police subsequent to the shooting. In the statement, which mirrored Carter’s testimony, Fleming said he heard the defendant threaten to kill Cioppa and then watched as the defendant shot him. He did not tell the police, however, that Hanks had a gun.

Tremayne Newsome testified that he saw a car enter the lot and that a conversation that he could not hear ensued between Hanks, the driver and the defendant, who had a gun. Newsome testified that after going into his house, he heard a gunshot outside. At this point, pursuant to State v. Whelan, supra, the court admitted into evidence, as a prior inconsistent statement, a written statement Newsome had given to the police. The content of Newsome’s statement mirrored Carter’s testimony and the statement Fleming had given to the police. In his statement, Newsome said he was outside his house when he saw the defendant and Cioppa arguing about drugs. He said that after he went inside his house, he opened the door, looked out and saw the defendant draw a gun and shoot Cioppa. Hanks also testified that it was the defendant who shot Cioppa. Hanks testified that he had walked away from the defendant and Cioppa’s car after the defendant pointed a gun at him and said he would shoot him.

In his case-in-chief, the defendant presented evidence to show that it was Hanks who shot Cioppa. Beverly Bass testified that she witnessed the incident from a window in the nearby apartment of a friend she was visiting that night. Bass testified that she saw a car drive into the lot and heard an argument about drugs and money. She testified that she heard shots and saw Hanks fire a gun. At the time of the shooting, Bass testified, the defendant was standing near a garbage dumpster, three to four feet from Cioppa’s car. She testified that after the shooting, the defendant ran from the scene with a woman named Clara Cummings. Bass did not see a gun in the defendant’s hand.

Cummings testified that she and the defendant were near the dumpster at about 11:30 p.m., when she saw Hanks, armed with a gun, approach a car that entered the lot. Cummings testified that she heard a shot while she was hiding behind the dumpster and that afterward she and the defendant fled. She testified that the defendant did not have a gun and that he was within her view when Cioppa was shot.

Another witness, Jermaine Kenney, testified that he was nearby on Trumbull Street talking with a young lady when he saw the defendant running from the parking lot while Hanks was firing a gun. Finally, the defendant elicited testimony from Kenneth Jones that three days after the defendant’s arrest, he and Hanks drove to a wooded area off Alba Avenue, where Hanks retrieved a long barreled gun he then sold to Jones for $50. Jones’ mother, Rita Holmes, then testified that she found a gun in her home and disposed of it in the household garbage. After the jury returned its verdict, the defendant filed motions for judgment of acquittal and for a new trial, which the court denied. This appeal followed.

I

The defendant first claims that the trial court improperly admitted into evidence certain remarks made by the defendant’s cousin, Kenneth “Dimpy” Buster, which were contained in a written statement given to the police by Anthony Michael Brown. The defendant argues that admission of Kenneth Buster’s remarks was improper for two reasons. First, they are not statements by Kenneth Buster, but merely Brown’s unsupported opinions or assumptions. Second, the remarks fail to make relevant for rebuttal purposes certain statements made by the defendant in a written statement he gave the police subsequent to his arrest. We disagree.

The following additional facts are necessary to our resolution of this claim. After the defendant’s arrest, he gave the police a written statement in which he claimed that the gun used to shoot Cioppa could be found in Hanks’ house or in his car. The statement was read to the jury during trial. After the defendant put on his case-in-chief, the state called Brown as a rebuttal witness. Brown, who did not see the shooting, stated that he knew the defendant and had grown up with him. Brown’s written statement to the police contained the following:

“Q: Is the gun now or was it ever in your house?
“A: It [is] not in my house, the only time it was in my house was when Dimpy showed it to me, and he said he was going to bury it at Samuel Johnson school.
“Q: Why was Dimpy going to bury the gun?
“A: Because he didn’t want [the police] to get it, it was the gun used to shoot the guy. . . .
“Q: Have you heard anything further about the gun since you saw it?
“A: Well, while Dimpy was at my house with it, after he had said he was going to bury it, he changed his mind and said he was going to put it in Ronell Hanks’ car.
“Q: Why was Dimpy going to put the gun in Ronell’s car?
“A: I guess so you all, could find it in there, so Ronell could be in . . . trouble.”

At trial, Brown gave the following testimony. On the night Cioppa was shot, Brown was in his house when he heard gunshots outside. After refreshing his recollection by looking over his written statement, Brown recalled having told the police he had seen a “long grayish-colored .38” revolver in a bag at his home on the Sunday after the shooting. With him at his home that Sunday were his cousin, Jeh-U, and the defendant and his cousin, Kenneth Buster. Brown, however, then contradicted his written statement, testifying that it was “not valid.” He testified that the police had forced him into making the statement, and that he was under the influence of narcotics at the time and was “trying to tell [the police] anything they wanted, to let [him] go.” Moreover, Brown testified that he did not see the gun at his house, and the other three young men never were there. Brown also testified, however, that he was at home that Sunday with the three young men, and that they had had a conversation about the gun.

At this point, the state sought to introduce Brown’s written statement for substantive purposes, pursuant to State v. Whelan, supra. With the jury out of the courtroom, the state also sought to introduce the remarks of Kenneth Buster, which were contained in Brown’s written statement. Kenneth Buster’s remarks were offered to show the defendant’s state of mind and to explain his subsequent conduct in giving the police a written statement implicating Hanks. Over the defendant’s objection, the court admitted Brown's written statement in its entirety, instructing the jury that Brown’s remarks were coming in for the truth of what they assert, and that Kenneth Buster’s remarks were being admitted only to show the defendant’s state of mind and to explain his subsequent conduct. The defendant duly excepted to the court’s ruling. Later, during its charge to the jury, the court again instructed the jury about Kenneth Buster’s remarks.

A

The defendant first claims that Kenneth Buster’s remarks were improperly admitted because certain of Brown’s responses to police inquiries do not constitute statements by Kenneth Buster and thus were only Brown’s unsupported opinions or assumptions. Specifically, the defendant argues that the trial court should not have admitted Brown’s responses to the questions, “Why was Dimpy going to bury the gun?” and “Why was Dimpy going to put the gun in Ronell’s car?” We disagree.

As a threshold matter, we must identify the appropriate standard under which we review these claims. First, we note that a court has broad discretion in ruling on the admissibility of evidence. State v. Negron, 221 Conn. 315, 328, 603 A.2d 1138 (1992). In addressing a challenge to a trial court’s evidentiary rulings, we note that great deference ordinarily is accorded such rulings, and that they will be disturbed on appeal only upon a clear showing of abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Estrada, 26 Conn. App. 641, 652, 603 A.2d 1179 (1992).

The defendant, in essence, now claims for the first time on appeal that Kenneth Buster’s remarks amounted to improper opinion testimony from a lay witness who lacked personal knowledge of the content of those remarks. We note that by objecting to the admission of the remarks on a variety of other grounds, the defendant failed to preserve properly the issue he has raised on appeal. Practice Book § 4185 requires that appealable claims of error be distinctly raised at trial. See also Practice Book § 288; State v. Forrest, 216 Conn. 139, 146, 578 A.2d 1066 (1990). Nevertheless, because both parties have briefed the issue; State v. Pol-litt, 205 Conn. 61, 86, 530 A.2d 155 (1987); and the record in this case provides an adequate basis for appellate review, we exercise our discretion and review the defendant’s claim. State v. Forrest, supra; State v. Pol-litt, supra.

The state offered Kenneth Buster’s remarks to rebut evidence the defendant had offered to show that Hanks had shot Cioppa. The court properly admitted the remarks for the specific, limited and narrow purpose of showing the defendant’s state of mind at the time they were made and to explain his subsequent conduct. Even if we were to agree that the remarks were not those of Kenneth Buster but opinion testimony by Brown, this would not warrant reversal of the defendant’s convictions.

The admission of prior written statements for substantive purposes is governed by State v. Whelan, supra, 753. See also State v. Grant, 221 Conn. 93, 98-99, 602 A.2d 581 (1992). In Whelan, our Supreme Court held that a written statement is admissible for substantive purposes where the declarant (1) signs the statement, (2) has personal knowledge of the facts stated, and (3) testifies at trial and is subject to cross-examination. State v. Grant, supra, 99; State v. Whe-lan, supra; State v. Estrada, supra, 656-57.

By asserting that the statements attributed to Kenneth Buster were only Brown’s opinions or assumptions, the declarant essentially mounts a challenge to the court’s ruling based on the second prong of Whe lan. This argument, however, has little merit. In State v. Green, 16 Conn. App. 390, 399, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988), this court construed Whelan, and held that “for a prior inconsistent statement containing statements of a third party to be admissible as substantive evidence the declarant must have personal knowledge of the facts underlying the statement and not just personal knowledge that the statement was made.” In State v. Grant, supra, however, our Supreme Court rejected this aspect of Green, holding that “the ‘personal knowledge’ prong of the Whelan rule does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement.” State v. Grant, supra, 99.

Applying the principles of Grant to this case, we conclude that even if the statements at issue were Brown’s and not Kenneth Buster’s, Brown need not have had personal knowledge of their underlying facts. Brown need not have witnessed the shooting of Cioppa, and he need not have had personal knowledge that Kenneth Buster intended to implicate Hanks by putting the gun in his car. Further, because Brown signed the statement he gave to the police and was cross-examined at trial, his statement was properly admitted as a prior inconsistent statement under the three-pronged Whe-lan test. State v. Grant, supra; State v. Whelan, supra. Finally, the remarks at issue were not offered for the truth of what they assert, but to show the state of mind of the defendant at the time and to explain his subsequent conduct. As such, they were not hearsay and were properly admitted. The court clearly instructed the jury as to the purposes for which the remarks were admitted not once, but twice. Under these circumstances, we find no manifest injustice affecting the fairness or integrity of the defendant’s trial.

B

The defendant next claims that Kenneth Buster’s remarks should not have been admitted because they failed to make relevant for rebuttal purposes the defendant’s written statement to the police that the gun was in Hanks’ car or in his house. We disagree.

Although we already have determined that Kenneth Buster’s remarks were properly admitted to show the defendant’s state of mind and to explain his subsequent conduct, our Supreme Court has stated that it is improper to admit such evidence when it does not tend to establish a fact in issue or corroborate other direct evidence in the case. State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). Therefore, we must determine if the defendant’s state of mind or subsequent conduct was indeed relevant.

In his case-in-chief, the defendant sought to create a reasonable doubt as to his guilt by presenting evidence from several witnesses that Hanks shot Cioppa. On rebuttal, the state sought to counteract the defendant’s strategy by offering Kenneth Buster’s remarks at the Sunday gathering at Brown’s home to show their effect on the defendant and to explain why the defendant would later tell the police that Hanks had the gun. Kenneth Buster’s remarks thus tend to establish that the defendant may have been involved in an effort to blame Hanks for the shooting. This in turn could permit the jury reasonably to infer that the defendant was acting in accord with this effort when he later told the police that Hanks had the gun. We therefore conclude that the defendant’s state of mind was relevant, and that Kenneth Buster’s remarks did make relevant for rebuttal purposes the written statement the defendant later gave to the police. Finally, we note that no prejudice inured to the defendant as a result of the court’s ruling because, as we have stated, the court twice instructed the jury that the remarks were admitted only for a specific and limited purpose. In the absence of evidence to the contrary, jurors are presumed to follow the court’s instructions. State v. Negron, supra, 331; State v. Jupin, 26 Conn. App. 331, 350, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

II

The defendant next claims that the trial court improperly denied him the opportunity to present certain sur-rebuttal evidence to counter Brown’s testimony and the remarks by Kenneth Buster. Again, we disagree.

Subsequent to Brown’s testimony, the defendant sought to present testimony from Kenneth Buster to refute the claim that the conversation at Brown’s house had occurred, and to show that Brown never had the gun in his possession and that there was no plan to make Hanks appear to be the perpetrator of the shooting. The court denied the defendant’s request for two reasons. First, the state’s rebuttal evidence was relevant only to the defendant’s state of mind and not to whether he had taken certain actions. Second, in light of the limited purpose for which Kenneth Buster’s remarks had been admitted, further testimony from him would only be cumulative. The court stated that if it permitted him to testify, further surrebuttal would be requested and there would be no finality to the trial.

It is well established that trial courts are vested with considerable discretion in the matter of rebuttal evidence. State v. Wood, 208 Conn. 125, 139, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). “Ideally, rebuttal evidence is that which refutes the evidence [already] presented . . . rather than that which merely bolsters one’s case.” (Internal quotation marks omitted.) State v. Wood, supra. There is no constitutional right to present surrebuttal evidence. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 555, 600 A.2d 757 (1991).

Because Brown already had testified that the conversation in question had not occurred, the court reasonably could have determined that surrebuttal evidence on this very point from Kenneth Buster would merely bolster the defendant’s case rather than refute evidence already presented. Further, the court reasonably could have determined that even if Kenneth Buster were to testify that no conversation occurred at Brown’s house, such evidence would not necessarily refute the implications of the defendant’s subsequent conduct in telling the police that Hanks had the gun. In other words, the jury would still be able reasonably and logically to infer that the defendant was seeking to cast blame on Hanks. Therefore, the court reasonably could have concluded that the proposed testimony from Kenneth Buster would be cumulative in nature and designed primarily to bolster the defendant’s case rather than to refute further Brown’s testimony. See State v. Wood, supra; State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985). “In a criminal trial, the judge is more than a mere moderator of the proceedings.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985). “[The judge] . . . is a minister of justice and may, of course, take all steps reasonably necessary for the orderly progress of the trial.” State v. Woolcock, 201 Conn. 605, 622, 518 A.2d 1377 (1986); State v. Jupin, supra, 349. Therefore, it is entirely proper for a court to deny a request to present certain testimony that will further “nothing more than a fishing expedition”; (internal quotation marks omitted); Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249, 520 A.2d 1008 (1987); or result in a “wild goose chase.” (Internal quotation marks omitted.) State v. Johnson, 190 Conn. 541, 551, 461 A.2d 981 (1983). We conclude that the court’s refusal to permit the defendant to present surrebuttal evidence from Kenneth Buster was a reasonable exercise of its sound discretion. State v. Wood, supra; State v. Simino, supra.

Ill

The defendant next challenges the sufficiency of the evidence regarding his convictions for manslaughter in the first degree and carrying a pistol without a permit. This need not detain us long. Because the defendant’s brief on appeal contains no more than the bare assertion that insufficient evidence existed to support his conviction for carrying a pistol without a permit, we deem this part of his claim abandoned. See Practice Book § 4065; State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991); State v. Nita, 27 Conn. App. 103, 112-13 n.6, 604 A.2d 1322 (1992).

With respect to his manslaughter conviction, the defendant argues that the testimony of Lester, Carter, Fleming, Newsome and Brown is neither substantial nor so convincing that it could be said to establish beyond a reasonable doubt that he is guilty of fatally shooting Cioppa. We disagree.

The two part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. Second, we determine whether on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991); State v. Jupin, supra, 337. In reaching its conclusions, a jury may draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); State v. Jupin, supra. With respect to the type of evidence the jury employs to reach its verdict, it is immaterial to the probative force of that evidence that it be, in whole or in part, circumstantial rather than direct. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991); State v. Jupin, supra. We emphasize that it is not any single fact but the cumulative impact of a multitude of facts that establishes guilt when proof is based substantially on circumstantial evidence. State v. Henning, supra; State v. Jupin, supra. Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, supra, 601; State v. Jupin, supra.

Finally, in determining whether the jury reasonably could have found guilt, we ask if any rational factfinder could have done so. State v. Montanez, supra, 20; State v. King, supra, 601; State v. Jupin, supra, 338. It is not our province as a reviewing court to sit as “a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Henning, supra, quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. Id. This court has had neither the opportunity to observe the witnesses, nor the chance to evaluate their credibility, tasks that are exclusively within the province of the jury as trier of fact. State v. Carter, 196 Conn. 36, 46, 490 A.2d 1000 (1985); State v. Jupin, supra, 339.

At trial, the state presented ample evidence, both testimonial and written, direct and circumstantial, from which the jury could find the defendant guilty beyond a reasonable doubt. Lester, Carter, Fleming, Newsome and Brown testified that it was the defendant who burst upon the scene and fatally wounded Cioppa when a drug deal went sour. Although the state conceded at oral argument that discrepancies exist in the stories of each of its witnesses, we reiterate that we do not sit as a thirteenth juror; State v. Henning, supra; to second-guess the trier of fact’s evaluations of witness credibility. Viewing the evidence in the light most favorable to sustaining the jury’s verdict, as we must, we conclude after scrupulous review of the record that the jury reasonably and logically could have determined that the evidence was sufficient to establish beyond a reasonable doubt that the defendant committed the crime of manslaughter in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The pertinent portion of defendant’s written statement is as follows: “Q: Is there anything else that you want to add to this statement? “A: Ronell has the gun that shot the man. It may be in his car, a 1977 Oldsmobile, black with a board in the back that is used as the bumper. The car is unregistered. If the gun is not in his car, it’s in his house.”

       At trial, the defendant objected to the admission of Kenneth Buster’s remarks on grounds of relevancy and hearsay, and on grounds that they are not relevant rebuttal evidence.

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

       This claim was properly preserved at trial. See footnote 3, supra.


author: Lavery, J.

text:
    State of Connecticut v. Wendell Irving
    (9677)
    Daly, Lavery and Heiman, Js.

      Argued December 6, 1991
    decision released April 7, 1992

      Leopold P. DeFusco, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were James Turcotte, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Lavery, J.

After a jury trial, the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and failure to appear in the first degree in violation of General Statutes § 53a-172. In this appeal, the defendant claims that the trial court improperly (1) allowed the state to introduce his statements to a police officer without first requiring the state to prove that the officer had properly advised him of his rights and that the defendant had waived them, (2) refused to allow cross-examination of the victim concerning a felony charge pending against her, and (3) permitted the state to cross-examine him concerning a January 6, 1978 robbery conviction for the purpose of impeaching his credibility. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In the early morning hours of March 12, 1989, the victim went downstairs in her apartment to investigate a noise in her kitchen. There, she found the defendant and a woman she knew as Ray. The victim ordered them to leave the apartment, but they refused. The defendant then grabbed the victim and dragged her upstairs, where, for the next two hours, he sexually assaulted her. During the sexual assault, Ray locked the defendant and the victim in the bedroom, disconnected all the telephones, and looted the apartment. Ray then fled from the scene.

After the assault, the defendant apologized to the victim, and asked her to tell the police that someone else had assaulted her. The victim agreed to do so. The defendant then helped the victim connect her telephone, and she called the police. When the police arrived, the victim told them that she had been sexually assaulted, and her apartment had been burglarized. She further told the police that she had called the defendant after the assault occurred. One of the officers, Detective John Flynn, then took the victim to the hospital. En route, the victim told Flynn that the defendant was her assailant. At the same time, the defendant was assisting other officers in their search for Ray. Flynn transmitted this information to the officers who were with the defendant.

After leaving the victim at the hospital, Flynn went to police headquarters and interviewed the defendant, who had been arrested on the basis of the information from the victim. The defendant denied having sexual relations with the victim. After Flynn told the defendant how serious the matter was, however, he admitted having had consensual sexual relations with the victim.

At trial, Flynn testified that after he advised the defendant of his constitutional rights, the defendant indicated that he understood his rights and that he would speak with Flynn. Flynn then interviewed the defendant. According to Flynn, the defendant first denied having sexual relations with the victim, but later admitted having had consensual sexual relations with her. When he took the stand, however, the defendant denied having sexual relations with the victim, stating that he “did and didn’t" have sex with her, because he had paid the victim for sex, but he was unable to complete the act because Ray entered the room. On cross-examination, the defendant denied that Flynn had advised him of his constitutional rights before questioning.

The defendant first claims that the trial court improperly allowed the state to introduce statements made by the defendant to Flynn without first requiring the state to prove that Flynn had properly advised the defendant of his rights and that the defendant had waived them. Such advisement and waiver is necessary when a suspect is subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Madera, 210 Conn. 22, 48-49, 554 A.2d 263 (1989). The defendant failed to raise this claim at trial either by way of an objection to the admission of Flynn’s testimony or by pressing a motion to suppress any statement he made to Flynn. He thus seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

“The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights, including his right to remain silent. ... A valid waiver is defined, in accordance with the well known test of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), as the intentional relinquishment or abandonment of a known right. . . . [T]he record need not show a specific expression of relinquishment of rights. . . . Instead, a waiver may be ‘inferred from the actions and words of the person interrogated’ . . . and from his‘course of conduct.’ . . .’’(Citations omitted.) (State v. Barrett, 205 Conn. 437, 449-50, 534 A.2d 219 (1987). Although we are required to give every reasonable presumption against the waiver of a fundamental constitutional right; see Johnson v. Zerbst, supra; In re Manuel R., 207 Conn. 725, 739, 543 A.2d 719 (1989); State v. Smith, 18 Conn. App. 368, 374, 558 A.2d 257 (1988); the defendant in the present case must still satisfy each of the conditions set forth in State v. Golding, supra, if we are to review this unpreserved constitutional claim.

Under the first Golding condition, the defendant can prevail only if there is an adequate record for our review. State v. Golding, supra, 240. The burden of providing an adequate record rests on the defendant. State v. Leary, 217 Conn. 404, 416, 587 A.2d 85 (1991); State v. Suarez, 23 Conn. App. 705, 708, 584 A.2d 1194 (1991). “If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra. We conclude that the defendant’s claim does not merit review under Golding because the record was not properly preserved.

In State v. Anderson, 209 Conn. 622, 553 A.2d 589 (1989), our Supreme Court considered whether a criminal defendant had waived his right to counsel. In that case, the defendant allegedly requested counsel on two occasions. Id., 629-31. At trial, however, the only evidence presented on the waiver issue was the testimony of two officers that, after the defendant was given his Miranda warnings, he stated that he might want to call his attorney at some future time. Id., 629. The defendant argued that the admission of his statements deprived him of his constitutional rights and a fair trial. Id., 625. The court declined to review the defendant’s claim because the record did not adequately support his claim. Id., 634.

On direct examination, Flynn testified on the advisement and waiver issue as follows:

“[Prosecutor]: Upon you interviewing the defendant, what was the first thing you did, Detective?
“[Flynn]: I advised him of his constitutional rights.
“[Prosecutor]: Okay. And did you ask him whether he understood these rights?
“[Flynn]: Yes.
“[Prosecutor]: Did you ask him if he would speak to you?
“[Flynn]: Yes, I did.
“[Prosecutor]: Did he indicate that he would speak to you?
“[Flynn]: He indicated that he understood his rights and he was willing to talk to me.”
On cross-examination, the defendant testified as follows:
“[Prosecutor]: Then, at that point you were brought down for processing in the New Haven police department, is that correct?
“[Defendant]: Yes, I was.
“[Prosecutor]: And there came a time when Detective Flynn came to see you, is that correct?
“[Defendant]: Yes, he did. . . .
“[Prosecutor]: Now, he advised you of your rights at that point, is that correct?
“[Defendant]: No one advised me of nothing.
“[Prosecutor]: Remember, throughout the whole night?
“[Defendant]: No one advised me of nothing.
“[Prosecutor]: They never read off a blue card or a piece of paper what your rights are?
“[Defendant]: No, they didn’t.”
“Had the defendant objected to the detective’s testimony at trial or moved to suppress it on the ground he now claims, a hearing or questioning would have provided a factual basis for his claim and the record would have been properly preserved.” State v. Anderson, supra, 633. In this case, the defendant failed to object to Flynn’s testimony. On the basis of the undeveloped state of the record in this case, we cannot, without becoming factfinders, determine whether the defendant waived his Miranda rights.

In addition, the defendant filed a motion for discovery requesting any relevant statements made by the defendant that the state intended to use at trial. The trial court granted this motion and the state complied. Also, the defendant filed a motion to suppress the statements he had made to Flynn, stating in the motion that the statements were made without a knowing, voluntary and intelligent waiver of his privilege against self-incrimination. There was no hearing on this motion and it was not pursued by the defendant.

The foregoing makes it clear that, at the time of trial, defense counsel was in fact aware of the advisement and waiver issue. Just as the defendant in State v. Anderson, supra, failed to file a motion to suppress his statements or to object to their admission, the defendant in the present case failed to follow through on the motion to suppress his statements or to object to their admission. The defendant made a tactical choice to allow his statements to Flynn to come before the jury in order to bolster his testimony at trial—that he “did and didn’t” have sexual relations with the victim—to show that his version of the events was consistent at all times. “The defendant cannot now claim ‘foul’ because of the admission of evidence which he allowed in for tactical purposes. . . .” (Citations omitted.) Id., 633. Because the record was not properly preserved, and because the defendant has failed to demonstrate that he was deprived of a fair trial, his first claim does not merit review under State v. Golding, supra.

The defendant next claims that the trial court improperly limited his cross-examination of the victim, thus abridging his right to confrontation under the sixth amendment to the federal constitution. The following facts are pertinent to this claim.

At the time of trial, there was an outstanding warrant against the victim for failure to appear in the first degree. Although the victim knew of the warrant, service of process had not yet occurred, and the victim had not yet been arrested for or charged with the offense. Outside the presence of the jury, defense counsel sought permission to question the victim, before the jury, on the failure to appear charge and on the outstanding warrant so that the jury might consider the matter as it related to the victim’s truthfulness and veracity. The trial court invoked the victim’s fifth amendment rights on her behalf, and denied the defendant’s request, reasoning that the outstanding warrant for failure to appear was not relevant to truthfulness and veracity. The defendant excepted to this ruling.

The defendant asserts that his right to confrontation under the sixth amendment to the federal constitution was denied because he was not allowed to question the victim concerning the failure to appear charge as well. The defendant argues that he should have been permitted to question the victim on the outstanding warrant in the failure to appear matter in order to determine whether the state had promised her consideration in exchange for her testimony against him. At the hearing, however, defense counsel failed to articulate this argument. Instead, he argued that this line of questioning was proper to attack the victim’s truthfulness and veracity. Accordingly, our review of this claim is governed by State v. Golding, supra, because the defendant seeks to raise a constitutional claim that was not raised at trial.

“Although cross-examination is the most effective means of confronting witnesses, not all limitations of that right are of constitutional dimension. State v. Lewis, [220 Conn. 602, 622, 600 A.2d 1330 (1991)]. The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness. State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985). Whether to permit cross-examination as to particular acts of misconduct to show a lack of veracity lies largely within the discretion of the trial court. Id., 401. Where the trial court allows significant cross-examination concerning a witness’ veracity, it cannot be said that the constitutional right to confrontation is implicated.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Dobson, 221 Conn. 128, 137, 602 A.2d 977 (1992).

In the present case, the trial court refused to allow cross-examination regarding the failure to appear felony charge for which the warrant had not yet been served. Because the failure to appear charge was not pending in that the victim had yet to be arrested and charged with the offense, we cannot say that the trial court abused its discretion in limiting the defendant’s cross-examination of the victim so as to exclude questioning regarding this matter. Consequently, the defendant has failed to demonstrate a constitutional violation that clearly deprived him of a fair trial, and we decline to review this claim further.

Finally, the defendant claims that the trial court abused its discretion in permitting the state to cross-examine him concerning a January 6,1978 robbery conviction for the purpose of impeaching his credibility because at the time of trial this conviction was more than ten years old. General Statutes § 52-145 (b) provides that felony convictions may be shown for the purpose of attacking a witness’ credibility. “ ‘Three factors should be examined to determine whether a prior criminal conviction . . . has been [properly] admitted: (1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness in time of the prior conviction.’ State v. Geyer, [194 Conn. 1, 11, 480 A.2d 489 (1984)]; see also C. Tait & J. LaPlante, Connecticut Evidence § 7.21.6 (2d Ed. 1988).” State v. Rivera, 221 Conn. 58, 73, 602 A.2d 571 (1992); State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); State v. McClain, 23 Conn. App. 83, 85, 579 A.2d 564 (1990).

“The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proffered evidence.” State v. Geyer, supra, 13; State v. Thomas, 15 Conn. App. 197, 205, 543 A.2d 1356 (1988). In the present case, the substitute information charged the defendant with sexual assault in the first degree. Because the prior robbery conviction is dissimilar to the offense charged, the prejudice to the defendant was not great. Second, it is undisputed that a robbery conviction bears on truthfulness. “[L]arceny, which is the underlying crime in any robbery, bears directly on the credibility of the witness-defendant. The defendant’s robbery conviction, therefore, was highly probative of his truthfulness and veracity.” State v. Crumpton, 202 Conn. 224, 229, 520 A.2d 226 (1987). Finally, “[a] prior conviction which is more than ten years old may, under some circumstances, retain some probative value which is minimally sufficient to overcome any marginal prejudice, and may be admissible, therefore, without a wholly unreasonable exercise of a trial court’s discretion.” State v. Kuritz, 3 Conn. App. 459, 463, 489 A.2d 1053 (1985). In the present case, the trial court examined the proffered conviction under the factors as set forth in State v. Nardini, supra, and decided to allow its admission. We conclude that the trial court’s decision on this matter was not an unreasonable exercise of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The conditions as set forth in Golding, need not be considered in any particular order. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991).

       Out of the presence of the jury, the following exchange occurred. “[The Court]: Is it your claim that your client did not receive his Miranda warnings, is that your claim? . . .
      “[Defense Counsel]: That’s not my claim at this moment only because it’s news to me.”

       The defendant asserts that his claim is identical to that of the defendant in State v. Rollins, 20 Conn. App. 27, 564 A.2d 318, cert. denied, 213 Conn. 803, 567 A.2d 833 (1989), in which we ordered a new trial. In Rollins, however, there was nothing in the record to indicate a Miranda warning was given. Id., 33. Consequently, the defendant’s claim was reviewed because the defendant was deprived of a fundamental constitutional right and a fair trial. Id., 31. In the present case, Flynn testified that he advised the defendant of his constitutional rights and that the defendant waived them.

       “To sustain the privilege against self-incrimination, it need only be evident from the implications of the question, in the context in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” State v. Erhardt, 17 Conn. App. 359, 364, 553 A.2d 188 (1989). The privilege against self-incrimination depends on the mere possibility of prosecution. State v. Williams, 200 Conn. 310, 319, 511 A.2d 1000 (1986). Thus, a charge could be considered ‘ ‘pending’ ’ for fifth amendment purposes, while at the same time it may be considered not “pending” for the purpose of ascertaining the truthfulness and veracity of a witness.

       The defendant was permitted to cross-examine the victim concerning a pending felony charge of possession of narcotics for the purpose of impeaching her credibility. At trial, defense counsel asked the victim whether the state had promised any favorable disposition of this pending felony charge in exchange for her testimony against the defendant. The victim denied any such bargain with the state.
      The trial court properly refused to allow the defendant to question the victim on the conduct underlying the felony charge, because narcotics offenses are not relevant to prove truthfulness or veracity. State v. Dob-son, 221 Conn. 128, 137, 602 A.2d 977 (1992); State v. Geyer, 194 Conn. 1, 14, 480 A.2d 489 (1984).

       See footnote 1, supra.

       General Statutes § 52-145 (b) provides: “A person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.”

       The court instructed the jury that the prior robbery conviction was relevant only as to the credibility of the defendant. The court further specifically instructed the jury to disregard the evidence suggesting that a burglary occurred in this case and the fact that the defendant was initially charged with burglary.


author: Foti, J.

text:
    State of Connecticut v. Michael J. Marsala
    (6088)
    Dupont, C. J., O’Connell and Foti, Js.
    Submitted on motion February 20
    decision released March 24, 1992

      Richard Emanuel, assistant public defender, with whom, was G. Douglas Nash, public defender, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Foti, J.

The state requests that we reconsider our remand in State v. Marsala, 26 Conn. App. 423, 601 A.2d 542 (1991), and review the search and seizure warrant under the “totality of the circumstances” test of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), pursuant to State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). Our remand ordered a new trial because our decision did not review the warrant to determine whether the evidence seized pursuant to it should have been excluded.

We have recently explained that our scope of review, in determining whether a substantial factual basis was demonstrated for the issuing authority to find probable cause to issue a warrant, is limited to the facts that appear within the four corners of the affidavit or facts that may properly be inferred from those facts. State v. Anziano, 26 Conn. App. 667, 669-72, 603 A.2d 415 (1992). We also have given retroactive effect to State v. Barton, supra, in State v. Payne, 25 Conn. App. 428, 431, 594 A.2d 1035, cert. denied, 220 Conn. 915, 597 A.2d 337 (1991). Barton applied the “totality of the circumstances” test of Illinois v. Gates, supra, and explained that analysis as follows:

“When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate.” State v. Barton, supra, 544-45.

The defendant originally raised two issues on appeal,

(1) whether the trial court improperly denied his motion to suppress evidence seized from his person, and

(2) whether the trial court improperly denied his motion for judgment of acquittal because of insufficient evidence. See State v. Marsala, 15 Conn. App. 519, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988). The state conceded that the underlying affidavit lacked the necessary indicia of reliability and basis for knowledge required by the two-pronged Aquilar- Spinelli test, and unsuccessfully put forth two theories that would support the court’s denial of the defendant’s motion: a good faith exception to the exclusionary rule and the investigative stop doctrine as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 6The state now seeks an affirmation of the judgment of conviction because under the “totality of the circumstances” test of State v. Barton, supra, our review of the underlying affidavit would lead to the conclusion that there existed a substantial basis for the issuing authority’s determination that probable cause existed. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). If probable cause existed, the evidence seized was properly admissible, and there would be evidence sufficient to support a conviction, thereby making a new trial unnecessary. We agree that we should examine the warrant; see State v. Anziano, supra; and amend our rescript in State v. Marsala, supra, 26 Conn. App. 423.

The affidavit supporting the application for the search warrant contained the following information. A named police officer from Trumbull notified the Monroe police that the defendant was a heavy seller of cocaine and other illegal drugs. The police had also received a telephone call from a resident of Swendsen Drive reporting that he had seen what he believed to be drug activity at 154 Swendsen Drive, that he had seen many vehicles drive up to the house, and that a bearded man came from the house, approached each vehicle and engaged in some sort of transaction. When the vehicles left, the man returned to the house. This “concerned citizen” then stated that this activity could be characterized as “heavy” with vehicles coming and going at all times of the day and night. In light of these reports, Monroe police drove by the house several times every day and night for a period of time and observed numerous vehicles occupied by young males in front of the house and a man walking between the house and the vehicles. On September 15,1986, a confidential informant came to the police department in Monroe and told of what he believed to be heavy drug trafficking at 154 Swend-sen Drive, supplied a list of thirteen marker numbers of vehicles that had been seen frequently stopping at that address at all times of the day and night and that some type of transaction would take place between the occupants of the cars and Michael Marsala, who was known to the informant as the occupant of 154 Swend-sen Drive. The police then continued their surveillance. The informant again came to the police department on September 29, 1986, and gave similar information about the activity concerning Marsala and the address in question. The informant also stated that extremely heavy activity was seen during the weekend of September 27 and 28, 1986.

On September 23, 1986, another police officer told one of the affiants that another informant had told him that he was aware of a man named Mike on Swendsen Drive who was selling cocaine to young people who drove up to the front of the house and that transactions took place right in the street. The following day a resident of the same neighborhood as 154 Swendsen Drive telephoned one of the affiants to express concern about what he felt was frightening activity going on in front of that address.

The information received by the affiants came from two neighbors, who, although not referred to as such, maybe considered “concerned citizens,” from one confidential informant directly, from a second informant through a police officer, and from another police officer, and from another police department. Neither of the “confidential informants” was shown to be reliable but the information given was obviously current and in one instance detailed sufficiently to be based on personal observation. The credibility of the two neighbors “is bolstered by the fact that citizen informers are considered more credible than confidential informants who are often criminals themselves with ulterior motives for providing information to the police.” State v. Anzi-ano, supra, 673. Additionally, observations of the defendant’s activities, made by one or both of the affi-ants, corroborated the details provided by the informants.

Although the confidential informant was not specifically shown to be reliable or trustworthy, the information derived from all sources and corroborated by the police surveillance reasonably allowed the issuing authority to conclude that the information supplied by the informants presented a substantial factual basis on which to find that probable cause existed.

Thus, after considering the totality of the circumstances as described in the affidavit, we conclude that it presented sufficient objective indicia of reliability to justify the issuance of the warrant. Therefore, the trial court properly denied the defendant’s motion to suppress. The evidence was properly admitted and with it, the evidence was sufficient to sustain the conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state filed a “Motion for Reargument” pursuant to Practice Book §§ 4121, 4122 and 4123, which we accept as a motion for reconsideration, and hereby grant.

       For a complete review of this matter see: State v. Marsala, 15 Conn. App. 519, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988); State v. Marsala, 19 Conn. App. 478, 563 A.2d 730 (1989); State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); and State v. Marsala, 26 Conn. App. 423, 601 A.2d 542 (1991).

         We concluded that there was no merit to the defendant’s insufficiency claim, if the evidence seized pursuant to the search warrant was properly admissible. State v. Marsala, 15 Conn. App. 519, 526-28, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988).

       The two-pronged test required that a search warrant affidavit based on an informant’s tip contain some of the underlying circumstances demonstrating his reliability or his veracity, along with his basis for knowledge. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637(1969).

       The Supreme Court in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990), after granting a petition for certification to review our decision in State v. Marsala, 19 Conn. App. 478, 563 A.2d 730 (1989), determined that under Connecticut constitutional law, there was no good faith exception to the exclusionary rule.