author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. EDDIE ABERNATHY
    (AC 22198)
    Schaller, Flynn and Bishop, Js.

      Argued June 11
    officially released October 15, 2002

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael A. Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

In this case, which is the companion to State v. Dixon, 72 Conn. App. 852, 806 A.2d 1153 (2002), Eddie Abernathy, one of two codefendants, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, aiding and abetting robbery in the first degree in violation of General Statutes §§ 53a-8 and 53a-134, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134. On appeal, the defendant claims that the court (1) violated his rights under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut on three separate occasions when it misinterpreted or misapplied the Connecticut Code of Evidence, and (2) violated his rights under the fourteenth amendment to the United States constitution and article first, § 8, when it declined to admit certain evidence under the residual exception to the hearsay rule. We affirm the judgment of the trial court.

On the basis of the evidence admitted during the defendant’s trial, the jury reasonably could have found the following facts. On the evening of October 21, 1998, the defendant, James “G” Dixon, Anthony “Tone” Cannon, Raymond “Flip” Hite, Michael Homes, Tamaika Easterling, Lacrisha Williams and others gathered at Tasheeka “Chicken” Contrelle’s apartment, at 99 Wyllys Street in Hartford, where they drank liquor and smoked marijuana. Later that evening, Homes led the defendant, Dixon, Cannon and Hite into Contrelle’s bedroom, shut the door and proposed that they commit a robbery. After some discussion, the five men exited the bedroom and entered the kitchen, where they drank more liquor and smoked more marijuana.

A while later, at about 10 p.m., the defendant, Dixon and Cannon left the party together. The defendant had in his possession a black, nine millimeter handgun, and Dixon had in his possession a small, chrome .25 caliber handgun. The three men entered a black Honda Prelude, which Cannon had acquired earlier that day, and drove throughout Hartford, stopping to buy gasoline on Washington Street and to buy juice on Brook Street. Thereafter, the three men, while driving on Green Street, saw a man, in the distance, walking in the middle of the road. The defendant, who was driving, drove the Honda to the side of the road, conversed briefly with Dixon and turned off the engine. He then turned toward Cannon, who was in the backseat, handed him a mask and the black, nine millimeter handgun, and told him to rob the man walking in the middle of the road. Cannon accepted the handgun and put on the mask, and he and Dixon exited the Honda together. As they approached the man, Cannon said, “What up?” The man, Baze “Burt” Privette, recognized Cannon’s voice and responded, “Tone?”

Cannon hesitated and asked Privette for a cigarette. Privette replied that he did not have one. Cannon then backed away from him, but Dixon, who had been standing to Cannon’s right, did not. Rather, he drew the chrome .25 caliber handgun, held it to Privette’s head and ordered him to “run everything.” He then grabbed Privette and led him into an alley nearby. Halfway down the alley, Dixon shot Privette in the head, killing him. He searched Privette’s pockets and then ran out of the alley. He and Cannon entered the Honda and told the defendant what had occurred. The defendant ordered them to give him the mask and guns and to keep quiet. Dixon and Cannon complied. The three men then drove away, heading toward the vicinity of Capitol Avenue and Lawrence Street.

All three men later were arrested and charged in connection with the incident. The defendant was charged with felony murder, aiding and abetting robbery in the first degree, and conspiracy to commit robbery in the first degree. The jury returned a verdict of guilty as to all counts, and the court rendered judgment accordingly. The defendant later was sentenced to a total effective term of fifty years imprisonment. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

The defendant first claims that the court violated his rights under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut on three separate occasions when it misinterpreted or misapplied the Connecticut Code of Evidence. Specifically, he claims that the court violated his federal and state constitutional rights to confront witnesses and to present a defense when it precluded him from (1) calling an individual named Antonio Johnson as a witness for the purpose of impeaching Cannon’s testimony concerning his motivation for cooperating with the state, (2) calling Johnson as a witness for the purpose of impeaching Cannon’s testimony that Cannon never had a disagreement or fight with Privette and (3) asking Homes certain questions on cross-examination. We begin by setting forth the legal principles that guide our analysis of those claims.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . .

“Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest; proof of the main facts is a matter of right but the extent of the proof of details lies in the court’s discretion. . . . The right of confrontation is preserved if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

“Although it is within the trial court’s discretion to determine the extent of [impeachment] and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the [confrontation clause] of the sixth amendment.” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248-49, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). Whether limitations on impeachment, including cross-examination, are so severe as to violate the confrontation clause of the sixth amendment is a question of law reviewed de novo. United States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000) (“ ‘[confrontation clause challenges are reviewed de novo to determine whether defense counsel was afforded a reasonable opportunity to impeach adverse witnesses; once that threshold is reached, the trial court’s restrictions on the extent and manner of cross-examination are reviewed only for abuse of discretion’ ”); United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996); United States v. Saunders, 166 F.3d 907, 918-19 & 918 n.16 (7th Cir. 1999) (expressly following Laboy-Delgado); United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000); United States v. Vargas, 933 F.2d 701, 704 (9th Cir. 1991).

Nonetheless, “[t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted [impeachment], . . . Only relevant evidence may be elicited through [impeachment], . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence . . . is irrelevant.” (Internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 604-605, 669 A.2d 562 (1995).

“The [sixth amendment to the] federal constitution [also] require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated.” (Citations omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002). Whether the consequences of a court’s ruling excluding evidence proffered by a defendant are so severe as to violate the defendant’s right to present a defense under the compulsory process clause of the sixth amendment is a question of law reviewed de novo. Cf. United States v. Soape, 169 F.3d 257, 267 (5th Cir. 1999) (“We have generally given district courts wide discretion in determining whether subpoenas should issue under Rule 17 (b) [of the Federal Rules of Criminal Procedure] . . . but only within the limits imposed by the Constitution .... Whether the trial court’s refusal to subpoena a witness violates the Sixth Amendment is, [of] course, a question of law that we review de novo.” [Citations omitted; internal quotation marks omitted.]). With those legal principles in mind, we now address each of the defendant’s claims.

A

The defendant first claims that the court violated his right to confront witnesses and his right to present a defense when it precluded him from calling Johnson as a witness for the purpose of impeaching Cannon’s testimony concerning his motivation for cooperating with the state. We disagree.

The following additional procedural history is relevant to our analysis of the defendant’s claim. During the state’s direct examination of him, Cannon, in addition to implicating the defendant and Dixon, testified as follows. In connection with the shooting on October 21, 1998, the state charged him with murder, felony murder and robbery in the first degree, and he was imprisoned as a result of those pending charges. The state had not promised or indicated that it was willing, under any condition, to reduce or to drop any of the charges against him or to recommend that the court impose a lenient sentence.

During cross-examination, Cannon acknowledged that the charges pending against him were very serious, and that he was cooperating with the state and hoping his testimony would benefit him at the time of his sentencing. Additionally, he acknowledged that, if convicted of the pending charges, he could be sentenced to a very long term of imprisonment and that he was “looking to cut [himself] a deal . . . .” He confirmed that the state had not made any promises concerning the charges against him or his sentence.

During the defendant’s and Dixon’s case-in-chief, they asked the court for permission to call Johnson as a witness. Johnson, they claimed, was prepared to testify as follows: “Cannon informed him that he was looking for five years at first, that he was hoping to get three years to get out. He’d be out within a year.” (Emphasis added.) In support of their request, the defendant and Dixon argued that Johnson’s statement “goes directly to contradict not necessarily that an offer [has] been made, but the perception . . . [of] what he thinks he’s getting for his cooperation with the state.” Additionally, the defendant and Dixon alleged that Cannon had made the statement to Johnson very recently, after Cannon had completed testifying during the state’s case-in-chief. That, they argued, prevented them from laying a foundation for Johnson’s statement during their cross-examination of him. The defendant and Dixon farther argued that if the court concluded that a foundation for Johnson’s testimony was necessary, it should grant them permission to recall Cannon as their witness to enable them to lay a foundation.

The state opposed the defendant and Dixon’s request, arguing that (1) under § 6-10 of the Connecticut Code of Evidence, extrinsic evidence of a prior inconsistent statement is inadmissible if the contents of the statement are not disclosed to the witness at the time the witness testifies and (2) under § 6-4 of the Connecticut Code of Evidence, it is improper to call a witness if the primary purpose in doing so is to impeach the witness.

The court denied the defendant’s and Dixon’s requests. It concluded that (1) Johnson could not testify regarding Cannon’s hopes for only a one, three or five year term of imprisonment because a proper foundation for his testimony had not been established through Cannon, and (2) Cannon could not be recalled because (a) the defendant’s and Dixon’s offer of proof indicated that the primary purpose in seeking to recall him was to impeach him, and (b) the defendant and Dixon were seeking to introduce Johnson’s statement in the hope that the jury would use it substantively.

On appeal, the defendant claims that the court improperly precluded him from either calling Johnson or recalling Cannon and then calling Johnson. He advances three arguments in support of his claim: (1) the court misapplied § 6-4 of the Connecticut Code of Evidence, (2) the court did not realize it had discretion to permit Johnson to testify even though neither the defendant nor Dixon had established a foundation for his testimony through Cannon during cross-examination and (3) neither § 6-4 or § 6-10 control a situation in which a party is seeking to impeach a witness with a subsequent inconsistent statement.

In response, the state argues, among other things, that the defendant’s and Dixon’s offer of proof was inadequate because it failed to establish that Johnson’s testimony was substantially inconsistent with Cannon’s. Because we agree with the state, we need not assess the present claim on the specific grounds urged by the defendant.

The following additional legal principles control our analysis. “Impeachment of a witness by the use of a prior inconsistent statement is proper only if the two statements are in fact inconsistent. . . . Moreover, the inconsistency must be substantial and relate to a material matter. . . . Since the purpose of such evidence is to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true . . . the inconsistency must be substantial and relate to a material matter. ... In determining whether an inconsistency actually exists, the testimony of the witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Moreover, statements from which a possible inference of inconsistency may be drawn are insufficient for the purpose of impeachment.” (Citations omitted; internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 763-64, 574 A.2d 182 (1990). “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 351, 796 A.2d 1118 (2002).

In the present case, the defendant and Dixon, during their offer of proof, failed to satisfy their burden of establishing that there was a substantial inconsistency between Cannon’s testimony and Johnson’s proposed testimony concerning a statement that Cannon subsequently had made in his presence. Cannon testified that he was hoping that his testimony would benefit him at the time of his sentencing and that he was “looking to cut [himself] a deal . . . .” His testimony is not substantially inconsistent with the subsequent statement he allegedly made to Johnson, in which he expressed his desire for only a one, three or five year term of imprisonment Consequently, we conclude that the defendant failed to lay a proper foundation for Johnson’s testimony. Accordingly, we conclude that the court did not violate the defendant’s rights to confront witnesses or to present a defense when it did not permit Johnson to testify concerning Cannon’s subsequent statement.

B

We next consider the defendant’s claim that the court violated his rights to confront witnesses and to present a defense when it precluded him from calling Johnson as a witness for the purpose of impeaching Cannon’s testimony that Cannon never had a disagreement or fight with Privette.

The following additional procedural history is relevant to our analysis of the defendant’s claim. The state, during its case-in-chief, called Cannon as a witness. On direct examination, Cannon testified as follows. Throughout his life, he had known Privette and his family, and he had grown up in the same neighborhood as Privette. He and Privette had friendly relations and encountered each other quite frequently in 1998. Although he and Privette did not socialize together, they conversed whenever they saw each other. He never argued or fought with Privette and was present at the scene when Privette was shot.

During cross-examination, Cannon testified as follows. On October 23, 1998, he told the police, in a written statement, that he had known Privette only for one month. He lied to the police about how long he had known Privette because he was high from smoking illy (marijuana dipped in embalming fluid). He confirmed that he had grown up in the same neighborhood as Privette and volunteered that Jamar Privette, one of Privette’s cousins, was a close friend. He steadfastly denied ever having had a disagreement or fight with Privette.

During the defendant’s and Dixon’s case-in-chief, the defendant asked the court for permission to call Johnson as a witness. Johnson, they claimed, was prepared to testify consistently with a statement he had given to police, indicating that Cannon had told a third person on December 4, 1998, that he had had a disagreement with Privette. Johnson, in that statement, alleged in relevant part: “I had known about this incident where ‘Burt’ Privette had been killed from talking with his cousin Edn Whitley, who was in the same block as me. Edn told me that the dude that killed Burt had been ‘beefing’ with Burt and that it was ‘Tone’ [Cannon].”

The state opposed the request, informing the court that the defendant and Dixon had Johnson’s statement in their possession before the trial began and arguing that in accordance with § 6-10 of the Connecticut Code of Evidence, they should have established a foundation for Johnson’s testimony by questioning Cannon about the statement on cross-examination dining the state’s case-in-chief.

The court denied the defendant’s and Dixon’s request because they had not established a foundation for Johnson’s testimony. In so doing, it stated: “If you have a statement that says Anthony Cannon admitted to having a [disagreement] with the victim to X on such and such a date, in order to impeach a witness, you need to afford him that opportunity and ask him. Otherwise, we’re into extrinsic evidence, which the witness was never questioned about and that’s not permissible under the rules.”

On appeal, the defendant advances two arguments in support of his claim: (1) the court did not know it had discretion to permit Johnson to testify absent a foundation and, therefore, improperly precluded him from testifying for lack of a foundation, and (2) improperly precluded him from laying a foundation by recalling Cannon to question him about Johnson’s statement.

In response, the state argues, among other things, that the defendant’s and Dixon’s offer of proof was inadequate because it failed to establish that Johnson’s statement, which included hearsay, was admissible. We agree with the state.

The following additional legal principles are relevant to our consideration of the state’s counterargument. “The purpose of an offer of proof has been well established by our courts. First, it informs the court of the legal theory under which the evidence is admissible. Second, it should inform the trial judge of the specific nature of the evidence so that the court can judge its admissibility. Third, it creates a record for appellate review.” (Internal quotation marks omitted.) State v. Walsh, 67 Conn. App. 776, 786-87, 789 A.2d 1031, cert. denied, 260 Conn. 906, 795 A.2d 546 (2002).

Section 6-5 of the Connecticut Code of Evidence provides: “The credibility of a witness may be impeached by evidence showing bias for, prejudice against, or interest in any person or matter that might cause the witness to testify falsely.” “The range of matters potentially giving rise to bias, prejudice or interest is virtually endless.” Conn. Code Evid. § 6-5 commentary. “Because evidence tending to show a witness’ bias, prejudice or interest is never collateral . . . impeachment of a witness on these matters may be accomplished through the introduction of extrinsic evidence, in addition to examining the witness directly. . . . The scope and extent of proof through the use of extrinsic evidence is subject to the court’s discretion, however . . . and whether extrinsic evidence may be admitted to show bias, prejudice or interest without a foundation is also within the court’s discretion. . . .

“The offering party must establish the relevancy of impeachment evidence by laying a proper foundation . . . which may be established in one of three ways: (1) by making an offer of proof; (2) the record independently may establish the relevance of the proffered evidence; or (3) stating a good faith belief that there is an adequate factual basis for [the] inquiry.” (Citations omitted; internal quotation marks omitted.) Id.

In the present case, the record discloses that the defendant and Dixon each were seeking to introduce evidence that a third party had committed the respective crimes with which each of them had been charged. The record further discloses that the defendant and Dixon each were seeking to establish that Cannon, specifically, had a motive and an opportunity to shoot Priv-ette. Thus, Johnson’s written statement indicating that Whitley told him that Cannon had killed Privette following a disagreement is relevant. See id., § 4-1.

Evidence that is relevant is not necessarily admissible, however. See id., § 4-2 (“[a]ll relevant evidence is admissible, except as otherwise provided by the constitution of the United States, the constitution of this state, the Code or the General Statutes”). Section 8-2 of the Connecticut Code of Evidence provides: “Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book.” “‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.” Id., § 8-1 (3).

The defendant and Dixon, in their offer of proof, failed to establish that Johnson’s statement, in which he relays what Whitley had told him, was admissible despite the fact that it is hearsay. Consequently, we conclude that the court did not violate the Connecticut Code of Evidence when it precluded the defendant from calling Johnson as a witness for the purpose of impeaching Cannon’s testimony that Cannon never had a disagreement or fight with Privette. On that basis, we conclude that the court did not violate the defendant’s right to confront witnesses. See State v. Pratt, supra, 235 Conn. 604-605 (confrontation clause does not suspend rules of evidence to give defendant right to engage in unrestricted impeachment). Finally, on the basis of the entire record, we conclude that the court afforded the defendant a meaningful opportunity to present a defense (including a third party culprit defense) and, therefore, did not violate his right to present a defense. See also State v. Cerreta, supra, 260 Conn. 261 (“ ‘[generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense’ ”).

C

The defendant next claims that the court violated his rights to confront witnesses and to present a defense when it precluded him from asking Homes certain questions on cross-examination.

The following additional procedural history is relevant to our consideration of the defendant’s claim. The state, during its case-in-chief, called Homes as a witness. On direct examination, he testified as follows. During, October, 1998, he lived with Contrelle in her apartment. He was present at Contrelle’s party on the evening of the shooting, as were the defendant, Dixon and Cannon. At the party, he and the other adults were smoking marijuana and drinking alcohol, and he was high. The defendant had a big black handgun, and Dixon had a small, silver colored .25 caliber handgun. In Contrelle’s bedroom, the defendant, Dixon, Cannon and Contrelle discussed committing a robbery to “get a few dollars.” Later, at approximately 11 p.m., the defendant, Dixon and Cannon left the party together. Very early the following morning, at 1 or 2 a.m., the defendant and Cannon returned. The defendant did not speak, and Cannon, who usually was boisterous, sat on the couch, shaking.

Sometime during the week preceding the shooting, the defendant told Homes that Privette owed the defendant money and that Privette had refused to acknowledge the debt. Homes knew Privette and his family for a long time; he grew up with him and lived across the street from him. On cross-examination, Homes testified as follows. The defendant was wearing a black overcoat on the night of the shooting; he could not recall, however, what Cannon was wearing that night. Contrelle was his girlfriend in 1998, and he saw a sawed-off shotgun on a shelf in Contrelle’s bedroom during the party.

During cross-examination, Homes was asked the following three questions: (1) “You’re smoking marijuana, you’re drinking, there are weapons around, there’s a five year old kid walking in an out of the apartment. Couldn’t Chicken [Contrelle] have been arrested for risk of injury?”; (2) “And there came a point that Tasheeka [Contrelle] was arrested for [possession of ] that shotgun, correct?”; and (3) “When was the last time you saw Burt prior to this — the shooting of Burt?” The state objected to those three questions, arguing that each was irrelevant. The court sustained all three of the state’s objections. On appeal, the defendant argues that the court improperly sustained the objections and, as a result, violated his rights to confront the witness and to present a defense. We disagree.

The following additional legal principles are relevant to our analysis. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 685-86, 800 A.2d 1160 (2002).

We conclude that if Homes had been allowed to respond to one or more of the three questions at issue, evidence irrelevant to the determination of the issues relating to the charges against the defendant and Dixon would have been admitted. Evidence establishing that Contrelle could have been arrested for risk of injury to a child and actually was arrested for possessing a sawed-off shotgun did not have a logical tendency to aid the jury in deciding whether the state had proven its charges against the defendant and Dixon. Similarly, the record discloses that evidence establishing when Homes last saw Privette did not have a logical tendency to aid the jury. Accordingly, we conclude that the court did not violate the defendant’s rights to confront witnesses or to present a defense when it declined to permit the defendant to ask Homes irrelevant questions on cross-examination.

II

Finally, the defendant claims that the court acted improperly in declining to admit certain evidence under the residual exception to the hearsay rule.

The following additional procedural history is relevant to our consideration of the defendant’s claim. During his case-in-chief, the defendant called Sahmish Banks as a witness. On direct examination, the defendant elicited testimony concerning a conversation she had had with Privette on October 21, 1998. Banks testified that during that conversation, Private had said that he had had an “argument with some kid.” The state immediately objected, arguing that Banks’ testimony was hearsay. The court reserved ruling on the objection and permitted the defendant to lay more of a foundation through Banks. The direct examination of her proceeded as follows:

“Q. Now, the discussion we just talked about, what time, approximately, did that happen that day?
“A. Probably like around 2:30.
“Q. And this happened — where did this discussion happen?
“A. With him and—
“Q. Yes.
“A. —Whoever?
“Q. Yes.
“A. Mahl Avenue. Wherever that’s at. I don’t know.
“Q. No. Where did your discussion with—
“A. Him?
“Q. Yes.
“A. Green Street.
“Q. At your place?
“A. At our house.
“Q. Okay. And how soon after the incident did you talk to him?
“A. Half an hour.
“Q. Was he — what was his demeanor? Do you know what that means?
“A. Uh-uh.
“Q. What did he look like when he was describing this incident to you?
“A. Like himself, like he didn’t — it didn’t really matter to him but he told me anyway.
“Q. Was he excited?
“A. No.
“Q. Was he nervous?
“A. No. He was just himself when he said it.”

The defendant then offered Banks’ testimony under, inter alia, the residual exception to the hearsay rule. The court sustained the state’s objection on the basis that the defendant had not made “a sufficient showing as to the reliability or trustworthiness of the statement. ”

On appeal, the defendant argues that the court, in declining to admit Banks’ testimony under the residual exception, violated the Connecticut Code of Evidence as well as his state and federal constitutional rights to due process. We disagree.

Simply put, the defendant has put a constitutional tag on a nonconstitutional evidentiary ruling. “[I]t would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997). We thus consider the defendant’s claim as we would any ordinary challenge to an evidentiary ruling. Our determination, therefore, is whether the court abused its discretion in its evidentiary ruling.

“A trial court’s ruling on the admissibility of evidence is entitled to great deference and will be overturned only if a clear abuse of the court’s discretion is shown and the defendant shows that the ruling caused substantial prejudice or injustice.” State v. Lewis, 245 Conn. 779, 804 n.23, 717 A.2d 1140 (1998). An appellate tribunal is required to make every reasonable presumption in favor of upholding the trial court’s ruling. Id., citing State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

Section 8-9 of the Connecticut Code of Evidence contains the residual exception to the hearsay rule and provides: “A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.”

“Reasonable necessity is established by showing that 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.” (Internal quotation marks omitted.) Id., § 8-9 commentary.

The record discloses that the defendant, in his offer of proof, did not establish that there was a reasonable necessity for the admission of Banks’ testimony concerning Privette’s statement. The defendant did not so much as argue that evidence of the same value could not be obtained from other sources. Additionally, we cannot conclude, on the basis of the record, that the circumstances surrounding Privette’s statement established a motivational basis for truth telling equivalent to those associated with the traditional exceptions to the hearsay rule. Accordingly, we conclude that the court did not abuse its discretion in declining to admit Banks’ testimony under the residual exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sixth amendment, to the United States constitution provides in relevant part: 'Tn all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor . . . .”

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him; [and] to have compulsory process to obtain witnesses in his behalf . . .

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       Article first, § 8, of the constitution of Connecticut provides in relevant part,: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       The defendant, in Ms brief, has failed to analyze independently his state constitutional claims. We therefore limit our review to Ms claims under the United States constitution. See State v. Cerreta, 260 Conn. 251, 260 n.7, 796 A.2d 1176 (2002).

       “While the right to test witnesses by cross-examination is fundamental, it is not unbridled. . . . When a witness’ credibility is in issue, the trial court may impose limits on cross-examination as long as the court grants the defendant sufficient leeway to establish a reasonably complete picture of the witness’ veracity, bias, and motivation. ... If the trial court imposes such limitations and the defendant thereafter challenges them on appeal, we review the record de novo to ascertain whether the court, overall, gave the defendant a reasonable chance to develop the whole picture. ... If we find that the core concerns of the Sixth Amendment have been satisfied, we will grant relief from the shackling of cross-examination only for manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) United States v. Laboy-Delgado, supra, 84 F.3d 28.

       For clarity, we note that “[b]oth this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000).

       Section 4-1 of the Connecticut Code of Evidence provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES DIXON
    (AC 22041)
    Schaller, Flynn and Bishop, Js.

      Argued June 11
    officially released October 15, 2002

      Donald, J. O’Brien, special public defender, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael A. Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

In this case, which is the companion to State v. Abernathy, 72 Conn. App. 831, 806 A.2d 1139 (2002), James Dixon, one of two codefendants, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that (1) the court violated his rights under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut on three separate occasions when it misinteipreted or misapplied the Connecticut Code of Evidence, (2) the court violated his rights under the fourteenth amendment to the United States constitution and article first, § 8, when it declined to admit certain evidence under the residual exception to the hearsay rule, (3) the state failed to disclose exculpatory material to him in a timely manner and (4) the court violated his right, under the sixth amendment, to a jury drawn from a fair cross section of the community. We affirm the judgment of the trial court.

On the basis of the evidence admitted during the defendant’s trial, the jury reasonably could have found the following facts. On the evening of October 21,1998, the defendant, Eddie Abernathy, Anthony “Tone” Cannon, Raymond “Flip” Hite, Michael Homes, Tamaika Easterling, Lacrisha Williams and others gathered at Tasheeka “Chicken” Contrelle’s apartment, at 99 Wyllys Street in Hartford, where they drank liquor and smoked marijuana. Later that evening, Homes led the defendant, Abernathy, Cannon and Hite into Contrelle’s bedroom, shut the door and proposed that they commit a robbery. After some discussion, the five men exited the bedroom and entered the kitchen, where they drank more liquor and smoked more marijuana.

Awhile later, at about 10 p.m., the defendant, Abernathy and Cannon left the party together. The defendant had in his possession a small, chrome .25 caliber handgun, and Abernathy had in his possession a black, nine millimeter handgun. The three men entered a black Honda Prelude, which Cannon had acquired earlier that day, and drove throughout Hartford, stopping to buy gasoline on Washington Street and to buy juice on Brook Street. Thereafter, the three men, while driving on Green Street, saw a man, in the distance, walking in the middle of the road. Abernathy, who was driving, drove the Honda to the side of the road, conversed briefly with the defendant and turned off the engine. He then turned toward Cannon, who was in the backseat, handed him a mask and the black, nine millimeter handgun and told him to rob the man walking in the middle of the road. Cannon accepted the handgun and put on the mask, and he and the defendant exited the Honda together. As they approached the man, Cannon said, “What up?” The man, Baze “Burt” Privette, recognized Cannon’s voice and responded, “Tone?”

Cannon hesitated and asked Privette for a cigarette. Privette replied that he did not have one. Cannon then backed away from him, but the defendant, who had been standing to Cannon’s right, did not. Rather, he drew the chrome .25 caliber handgun, held it to Priv-ette’s head and ordered him to “run everything.” He then grabbed Privette and led him into an alley nearby. Halfway down the alley, the defendant shot Privette in the head, killing him. He searched Privette’s pockets and then ran out of the alley. He and Cannon entered the Honda and told Abernathy what had occurred. Abernathy ordered them to give him the mask and guns and to keep quiet. The defendant and Cannon complied. The three men then drove away, heading toward the vicinity of Capitol Avenue and Lawrence Street.

All three men later were arrested and charged in connection with the incident. The defendant was charged with murder in violation of General Statutes § 53a-54a (a), felony murder, robbery in the first degree, conspiracy to commit robbery in the first degree and carrying a pistol or revolver without a permit. The jury returned a verdict of not guilty as to the murder count, and a verdict of guilty of felony murder, conspiracy to commit robbery in the first degree, carrying a pistol or revolver without a permit and the lesser offense of attempt to commit robbery in the first degree. The court rendered judgment accordingly and later sentenced the defendant to a total effective term of fifty years imprisonment. This appeal followed. Additional facts and procedural history will be presented as necessary.

I

The defendant first claims that the court violated his rights under the sixth amendment and article first, § 8, on three separate occasions when it misinterpreted or misapplied the Connecticut Code of Evidence. Specifically, he claims that the court violated his federal and state constitutional rights to confront witnesses and to present a defense when it precluded him from (1) calling an individual named Antonio Johnson as a witness for the purpose of impeaching Cannon’s testimony concerning his motivation for cooperating with the state, (2) calling Johnson as a witness for the purpose of impeaching Cannon’s testimony that Cannon never had a disagreement or fight with Privette and (3) asking Homes the following question on cross-examination: “And there came a point that Tasheeka [Contrelle] was arrested for [possession of a] shotgun [in her home on the night of the crimes], correct?”

In State v. Abernathy, supra, 72 Conn. App. 835-49, Abernathy raised the same challenges to those eviden-tiary rulings, which we addressed and rejected in part I of that opinion. We reject the defendant’s claims on the basis of that analysis.

II

The defendant next claims that the court, in declining to admit certain testimony under the residual exception to the hearsay rale, violated the Connecticut Code of Evidence as well as his state and federal constitutional rights to due process. Specifically, the defendant argues that the court improperly excluded the testimony of Sahmish Banks, a friend of Privette, that on October 21, 1998, Privette had told her that he had had an “argument with some kid.”

In State v. Abernathy, supra, 72 Conn. App. 849-52, Abernathy raised the same challenges to that eviden-tiary ruling, which we addressed and rejected in part II of that opinion. We reject the defendant’s claims on the basis of that analysis.

Ill

The defendant argues that the state and Cannon, a witness who presented testimony unfavorable to the defendant during the state’s case-in-chief, previously had agreed that Cannon would testify against the defendant in exchange for a favorable sentencing recommendation on his own pending charges relating to the shooting. Because the existence of that agreement never was disclosed, the defendant claims that the state failed to disclose exculpatory material to him in a timely manner in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We reject the defendant’s claim.

“The law governing the state’s obligation to disclose exculpatory evidence to defendants in criminal cases is well established. The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. [Id., 86]; State v. Simms, 201 Conn. 395, 405 & n.8, 518 A.2d 35 (1986). In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.” (Internal quotation marks omitted.) State v. Sitkiewicz, 64 Conn. App. 108, 113, 779 A.2d 782, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001).

“It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused. ... A plea agreement between the state and a key witness is impeachment evidence falling within the definition of exculpatory evidence contained in Brady.” (Citations omitted; internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). “The existence of an undisclosed plea agreement is an issue of fact for the determination of the trial court. . . . Furthermore, the burden is on the defendant to prove the existence of undisclosed exculpatory evidence.” (Citation omitted.) Id. A court’s factual finding as to whether undisclosed exculpatory evidence exists will not be disturbed on appeal unless it is clearly erroneous. Id., 737-38. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted) Id., 738.

In the present case, the defendant, during his casein-chief, asked the court for permission to recall Cannon, the state’s key witness, for the purpose of questioning him about a conversation he allegedly had had with Johnson. During that conversation, the defendant argued, Cannon had told Johnson that “he was looking for five years at first, that he was hoping to get three years to get out. Fle’d be out within a year.” At no time did the defendant argue that the state had, in fact, made an offer to Cannon.

Following the defendant’s trial, Cannon pleaded guilty to reduced charges and was sentenced to a total effective term of eighteen years imprisonment, suspended after nine years, with five years probation. During Cannon’s sentencing hearing, the state informed the court as follows: “Mr. Cannon did testily at the trial of the codefendant, so his two codefendants were both convicted of crimes of felony murder. It’s because of his cooperation in that case that the charges are what they are today, and the court has indicated a sentence of eighteen [years, suspended] after nine [years incarceration].”

On the basis of the record before us, we conclude that the defendant failed in his burden of proving the existence of the undisclosed exculpatory evidence he complains of on appeal.

IV

Finally, the defendant claims that the court violated his sixth amendment right to a jury drawn from a fair cross section of the community when it excused each venireperson who worked full-time and whose employer would compensate that venireperson only for the first five days of jury service. The defendant argues that the court’s practice, as well as General Statutes § 51-247, results in the systemic exclusion of minorities from jury service. Before setting forth the relevant legal principles, we note that the defendant concedes that during his trial, he did not offer any evidence in support his present claim.

“In order to establish a violation of his federal constitutional right to a jury drawn from a fair cross section of the community, the defendant must demonstrate the following: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578, 588, 758 A.2d 327 (2000).

Turning immediately to the second prong of the test, we conclude that the defendant has failed to provide any evidence, including statistical evidence, demonstrating that the court’s practice or § 51-247, or both, systematically excludes minorities from serving on juries. We therefore reject his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor . . . .”

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him; [and] to have compulsory process to obtain witnesses in his behalf . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . .

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .”

       The defendant, in his brief, has failed to analyze independently his state constitutional claims. We therefore limit our review to his claims under the United States constitution. See State v. Cerreta, 260 Conn. 251, 260 n.7, 796 A.2d 1176 (2002).

       See footnotes 3 and 4.

       General Statutes § 51-247 (a) provides in relevant part: “Each full-time employed juror shall be paid regular wages by his employer for the first five days, or part thereof, of his juror service. . . .”


author: FLYNN, J.

text:
    CHESTER LISIEWSKI v. JOHN A. SEIDEL ET AL.
    (AC 21385)
    Mihalalcos, Flynn and Stoughton, Js.
    Argued December 11, 2001
    officially released October 15, 2002

      Ernest J. Cotnoir, for the appellants (defendants).

      Beth A. Steele, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants, John A. Seidel and Fred R. Seidel, Jr., appeal from the judgment of the trial court, which resolved this boundary dispute involving property located in the town of Sprague in favor of the plaintiff and also found that the plaintiff held a prescriptive easement over the defendants’ gravel driveway. We affirm in part and reverse in part the judgment of the trial court.

The plaintiff, Chester Lisiewski, owns land to the east of the disputed property and brought this action when the defendants erected a metal gate obstructing his passage over the driveway. On appeal, the defendants claim that the trial court improperly found a latent ambiguity in the deed description of the property and improperly resolved that ambiguity against them. The defendants also challenge the trial court’s determination that the plaintiff holds a prescriptive easement over the driveway, claiming that the plaintiff did not set forth sufficient evidence to establish that his use was not permissive. We agree with the defendants’ first claim. Accordingly, we reverse that part of the judgment determining the location of the shared boundary between the parties. We affirm that part of the judgment finding that the plaintiff held a prescriptive easement over the gravel driveway.

The parcel of land subject to the title dispute is a narrow, L-shaped parcel on the northerly and westerly borders of the plaintiffs land (disputed area). There is also a dispute over an easement to use the existing gravel driveway. Even if one accepts the construction of deeds advanced by the plaintiff, almost all of the gravel driveway is located on the undisputed land of the defendants except for a narrow gore within the disputed area which expands from a sliver to a width of five feet on the street line.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. In the early 1950s, the plaintiff and the defendants’ grandfather, Reinhold Seidel, worked together as foremen in the same factory. At that time, the plaintiff and Seidel negotiated the land conveyance at issue in this appeal. Seidel owned real property in the town of Sprague, which he decided to sell to the plaintiff. In 1952, prior to conveyance, the plaintiff began building a house on the land. During construction, vehicles eventually wore a path near the western boundary of the parcel that Reinhold Seidel would eventually convey to the plaintiff. It was this path that would later evolve into the gravel driveway at issue in this appeal. On April 28, 1954, Seidel conveyed the land to the plaintiffs wife by warranty deed, which was recorded in the Sprague land records in volume 16, pages 410 and 411.

When the plaintiff moved in, the land immediately to the east of the gravel driveway was “practically” a “jungle,” due to heavy foliage. The plaintiff soon cleared and cultivated the area. In late 1954, he planted a row of Hemlocks in that area, roughly parallel to the gravel driveway. In the late 1950s, he built a stone wall in the disputed area. One length of that stone wall lay several feet to the east of the gravel driveway.

Meanwhile, Seidel retained land to the west, including the gravel driveway. This land eventually passed to the defendants. Upon Seidel’s death, the land first passed from his estate to Martha Emma Seidel, his wife. In 1962, Martha Emma Seidel conveyed that land by quitclaim deed dated February 16, 1962, and recorded in the Sprague land records in volume 15, page 413, to her son, Fred Seidel, and his wife Olga. Finally, Fred Seidel and Olga Seidel conveyed the land to their two sons, John Seidel and Fred R. Seidel, Jr., (the defendants) by warranty deed dated and recorded on June 20, 1997, on pages 689 and 690 of volume 53 of the Sprague land records.

Before the defendants acquired the property to the west of what their grandfather had conveyed to the plaintiff, the plaintiff had used the gravel driveway for more than forty years as a means of egress and ingress to and from his property. In 1981, the plaintiff built a garage behind and to the north of his house, connecting with the gravel driveway. Prior to that date, he had simply parked vehicles outside in the same location. The defendants’ predecessors in title, namely their father and grandfather, never challenged the plaintiffs use of the gravel driveway.

Shortly after acquiring the land to the west of the plaintiffs land from their parents, however, the defendants erected a metal gate near the end of the gravel driveway, preventing the plaintiffs passage. The defendants hired a surveyor, Thomas Brennan, who set pins in the ground indicating that their boundary lay near the stone wall built by the plaintiff, to the east of the driveway. In the view of this expert, the defendants held title to most of the gravel driveway and the strip of land between the eastern edge of the driveway and the plaintiffs stone wall.

The plaintiff hired his own surveyor, John Faulise. In the plaintiffs view, most of the gravel driveway remains the property of defendants, but the disputed area to the east of the driveway is his. The court adopted the plaintiffs view as to the ownership of the disputed area and also found that the plaintiff held a prescriptive easement over the gravel driveway. It held in pertinent part: “After a motion for articulation/reargument, the court entered judgment for the plaintiff on the second count of the amended revised complaint. The court finds the allegations in the second and third counts of the amended revised complaint to be true. The court, having heard the interested parties, finds that the plaintiff has established through the testimony of his expert and through his deed that he has, in fact, title to the disputed land as set forth on exhibit A, and that the defendants have no title, interest or estate therein. The court further finds that the defendants failed to establish their claim of adverse possession as to the disputed area by clear and convincing evidence. Accordingly, the court finds that the plaintiff has clear title to the disputed area as set forth on exhibit A and enters judgment accordingly. The court further finds that the plaintiff has a prescriptive easement over the gravel driveway as shown on a map entitled ‘Property Survey prepared for Chester Lisiewski, 108 Bushnell Hollow Road, Sprague, Connecticut, Scale 1”= 20’, May, 1998’ by John U. Faulise, Jr., Boundaries, LLC, and enters judgment accordingly.”

The exhibit A the court referenced in its judgment was not the exhibit A of the revised amended complaint, but contained the same legal description found on exhibit C of the revised amended complaint. The courses and distances set forth in both exhibit A of the court’s judgment and exhibit C of the revised amended complaint describe only a northerly and westerly line of the disputed area. We mean that the legal description does not close by describing all sides of this L-shaped parcel.

However, because the courses and description are followed by the words, “Said disputed area contains .15 acres more or less and is shown as ‘Disputed Area’ on a survey plan prepared by John U. Faulise, Jr., L.S., Boundaries entitled: Property Survey prepared for Chester Lisiewski, 108 Bushnell Hollow Road, Sprague, Connecticut, scale 1”= 20’, May 1998, Ident No. 98-065, Last Revised 1/14/00,” we conclude that the court’s description is clear as to the description of the disputed area despite the fact that the courses set forth do not contain a description of all sides of the parcel.

After the judgment was rendered, the defendants filed this appeal. Further facts and procedural history will be set forth where necessary.

The defendants first claim that the court improperly determined that the relevant deed description contained a latent ambiguity. We agree. Accordingly, we reverse that aspect of the trial court’s judgment.

“The principles guiding our construction of land conveyance instruments, such as the [deed] at issue in this appeal, are well established. The construction of a deed . . . presents a question of law which we have plenary power to resolve. ... Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000).” (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn. App. 538, 541, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 812 A.2d 865 (2002). “In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant.” (Internal quotation marks omitted.) Id., 542.

The trial court found that there was a latent ambiguity in the deed description of the plaintiffs property used in the conveyance from the defendants’ predecessor in title, Reinhold Seidel, to the plaintiff. “A latent ambiguity arises from extraneous or collateral facts that make the meaning of a deed uncertain although its language is clear and unambiguous on its face. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995).” Marshall v. Soffer, 58 Conn. App. 737, 743, 756 A.2d 284 (2000). This warranty deed was dated April 28, 1954, and recorded in volume 16 on pages 410 and 411 of the Sprague land records, and described the property conveyed as follows: “Beginning at a point on the northerly side of [Bushnell Hollow Road] at the southeasterly comer of these conveyed premises and the southwesterly comer of land of Esdras Gosselin and mnning thence northerly along a wire fence 415 feet bounded easterly by said Gosselin land; thence westerly 200 feet to a bound; thence southerly on a line parallel with and 200 feet distant westerly from the first described line 415 feet to the northerly side of said [road], the last two lines bounded northerly and westerly by remaining land of the grantor; thence easterly along the northerly side of said [road] 200 feet to the point of beginning.” (Emphasis added.) The beginning point of the first course, a point on the northerly side of Bushnell Hollow Road, is not in dispute and can be readily ascertained because the location of the monument road and the southeasterly comer of the plaintiffs property, where it meets the southwesterly corner of Gosselin’s residence on that road line, are readily ascertainable. The course and the distance as to the first boundary can be readily ascertained as well. The wire fence monument was located in the field, and ran generally in the northerly direction, as called for in the deed. Although the direction of the fence was also somewhat easterly as well, the monumental call of the fence would govern as more certain. “It is well settled as a rule of the construction of deeds that ‘[w]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances.’ ” Frank Towers Corp. v. Laviana, 140 Conn. 45, 50, 97 A.2d 567 (1953); Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978); Russo v. Corideo, 102 Conn. 663, 672, 129 A. 849 (1925).” Koennicke v. Maiorano, 43 Conn. App. 1, 10, 682 A.2d 1046 (1996). Because the deed calls for 415 feet, the northeasterly comer can be readily ascertained. With respect to the fourth course and distance, the deed states that it runs “easterly along the northerly side of said highway 200 feet to the point of beginning.” By mnning 200 feet back westerly from the point of beginning, we can ascertain the southwesterly comer. It is important to keep in mind that the undisputed title evidence and the language of the description the grantor used show that the grantor was making an out conveyance from a larger parcel that he owned, and that he deeded off only 200 front feet on Bushnell Hollow Road.

The point of beginning, the easterly boundary and the terminus of the easterly boundary were readily ascertained by both surveyors, Faulise and Brennan. Their locations are undisputed. It is also undisputed that the property described is not a rectangle. The property described contains no right angles, as dictated by the oblique angle formed where Bushnell Hollow Road meets the easterly boundary of the plaintiff along the wire fence abutting land of Gosselin (now land of Gerald Czikowski and Linda Czikowski). The lengths of the boundaries can be followed exactly, yielding a parcel generally looking like a parallelogram, with easterly and westerly boundaries of 415 feet in length each and northerly and southerly boundaries of 200 feet in length each. The four comers of the property can then be located.

However, Faulise, the plaintiffs surveyor, whose view the trial court adopted, contended that the distance between the parallel easterly and westerly boundaries, described as 200 feet in the deed, could not be the same length as the northerly and southerly boundaries, which were also described as 200 feet in length in the deed. The easterly boundary is at an oblique angle from the southerly and northerly boundaries, and the plot is therefore not a rectangle. Faulise testified that the distance between the parallel easterly and westerly boundaries, taken from a direction perpendicular to them, cannot match the 200 foot deeded lengths of the northerly and southerly boundaries. Although the court never used the word “perpendicular,” Faulise’s survey map depicts a distance of 200 feet taken from the direction perpendicular to segments of the easterly and westerly boundaries. Yet the deed describes the distance between the parallel easterly and westerly boundaries as matching the northerly and southerly boundaries, i.e., 200 feet. The plaintiffs surveyor argued that a latent ambiguity must therefore be resolved. We conclude that the language of the deed is clear and unambiguous on its face and that no extraneous or collateral facts exist that make its meaning uncertain. See Marshall v. Soffer, supra, 58 Conn. App. 743.

There is an inaccurate assumption in the plaintiffs view of the deed description. The assumption is that the distance between the parallel easterly and westerly boundaries, which distance was also stated as 200 feet in the deed, must be measured from a direction perpendicular to those boundaries. The defendants argued, and we agree, that this is not so. The plaintiffs view would require us to excise the adjective “westerly” from the call “on a line parallel with and 200 feet distant westerly from the first described line” and simply consider it to be a measure of perpendicular distance between the parallel lines. However, “[e]very word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted . . . .” (Internal quotation marks omitted.) Mulla v. Maguire, 65 Conn. App. 525, 532, 783 A.2d 93, cert. denied, 258 Conn. 934, 785 A.2d 29 (2001). We read the call “200 feet distant westerly” plainly to mean that in the westerly direction, the parallel line is 200 feet distant; not, as the trial court found, to mean that the lines must be 200 feet away in a direction perpendicular to the original line described as running 415 feet along Gosselin’s land. Unlike the directional call for the easterly boundary along the wire fence, there was no competing call, much less a monument, that would supersede the directional call for the distance between the parallel easterly and westerly boundaries, namely, the “westerly” direction. Under our plain reading of the deed description, there is no latent ambiguity, and the remaining calls in the deed description do not conflict. The defendant’s expert, Brennan, followed this approach, and the lot lines of his survey map matched the calls in the deed description within inches. In the plaintiffs view, the northerly and southerly boundaries had greater lengths than their respective calls in the deed. Without these greater lengths, a smaller area results and the westerly boundary does not encompass the disputed area between the gravel driveway and the stone wall. Accordingly, because all calls can be given effect as written, we conclude that the plaintiff does not hold title in the disputed area. See id.

We note that the trial court found that “as between the two experts, Mr. Faulise was by far the most credible and expert.” Our appellate review generally defers to the determinations of the trial court regarding factual findings on issues of credibility, unless they are clearly erroneous. Mackie v. Hull, supra, 69 Conn. App. 545. However, the ultimate issue of who holds title to the disputed area is not a question of credibility. “The construction of a deed . . . presents a question of law which we have plenary power to resolve. ... Il Giardino, LLC v. Belle Haven Land Co., [supra, 254 Conn. 511].” (Internal quotation marks omitted.) Mackie v. Hull, supra, 541. An expert witness testifies to “assist the trier of fact in understanding the evidence or in determining a fact in issue.” (Emphasis added.) Conn. Code Evid. § 7-2. Because the unambiguous deed description presented no question of fact, the only proper role of the expert witness was to assist the court in understanding the evidence. The court’s determination as to Faulise’s credibility does not limit the plenary scope of our inquiry into the legal questions posed in the proper construction of the deeds.

We therefore reverse the judgment of the court with respect to its holding that the “plaintiff has established through the testimony of his expert and through his deed that he has, in fact, title to the disputed land as set forth on exhibit A [of the judgment] and that the defendants have no title, interest or estate therein.”

The court did not decide the plaintiff’s claim that he had established title by adverse possession to the disputed area because it found that he had title by deed, a decision we this day reverse. We therefore remand the case for the court’s consideration of whether the plaintiff has established title by adverse possession to any area within the disputed area.

Next, the defendants claim that the court improperly determined that the plaintiff held a prescriptive easement over the gravel driveway. Specifically, the defendants argue that the plaintiff failed to meet his burden to prove that he had used the gravel driveway without permission. We affirm this part of the judgment.

The defendants argue that evidence in the record weighs in favor of finding that the plaintiff had either express or implied permission to use the gravel driveway and, thus, that the use was not adverse. Although the defendants’ argument has its appeal, it presents factual considerations that fail to establish that the trial court’s judgment was clearly erroneous.

The defendants correctly observe that if the plaintiffs use of the gravel driveway were permitted, it could not give rise to an easement by prescription. “To establish an easement by prescription it is absolutely essential that the use be adverse. ... In order to prove such adverse use, the party claiming to have acquired an easement by prescription must demonstrate that the use of the property has been open, visible, continuous and uninterrupted for fifteen years and made under a claim of right. Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 431, 151 A.2d 881 (1959); Klar Crest Realty, Inc. v. Rajon Realty Corporation, [190 Conn. 163, 168, 459 A.2d 1021 (1983)]; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967). There can be no claim of right unless the use is unaccompanied by any recognition of [the] right [of the owner of the servient tenement] to stop such use. [Thus, a] use by express or implied permission or license cannot ripen into an easement by prescription. Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936) .... Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions.” (Citation omitted; internal quotation marks omitted.) Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993).

It was not, as the defendants suggest, the plaintiffs burden to establish that his use of the property was without permission. Such a rule would often charge a party with proving a negative. Rather, it was the plaintiffs burden to establish that his use of the property was under a claim of right. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983). This is not to say, however, that evidence indicating a lack of permission is irrelevant to whether the plaintiff has established use under a claim of right.

The defendants observe that their predecessor in title (their grandfather) and the plaintiff “were coworkers and acquaintances, and for this reason, the defendants’ grandfather actually allowed [the] plaintiff to build his house before title officially passed.” The defendants also note that the plaintiff indicated at one point in his testimony that he had permission to build a house on the land before obtaining title. From this, the defendants argue that it is very likely that their father permitted the plaintiff to use the gravel driveway to access his property. Although we appreciate the relevance of this factual background, it does not leave us with the firm impression that the trial court’s judgment is clearly erroneous.

“Whether a right-of-way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered. Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous. McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). . . . Faught v. Edgewood, Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001).” (Internal quotation marks omitted.) Hoffer v. Swan Lake Association, Inc., 66 Conn. App. 858, 859-60, 786 A.2d 436 (2001).

Although the circumstances of the case are such that implied permission could be rationally found, the failure to so find is not clearly erroneous. The plaintiff, his son and his son’s former wife each testified that permission was never granted. The court was entitled to accord greater weight to that testimony, to find that the use was adverse and to grant the plaintiff an easement over the driveway area by prescription.

The judgment is reversed as to the determination that “the plaintiff has established through the testimony of his expert and through his deed that he has, in fact, title to the disputed land as set forth on exhibit A [of the judgment], and that the defendants have no title, interest or estate therein” and the case is remanded for further proceedings to determine whether the plaintiff has established his claim of title by adverse possession of that property. That part of the judgment determining that the plaintiff has a prescriptive easement over the gravel driveway is affirmed.

In this opinion the other judges concurred.

       In its first memorandum of decision, the court initially determined that the question of an easement by prescription was moot after adopting the plaintiffs view of the boundary dispute. This was incorrect, since the plaintiffs boundary theory encompassed only the land to the east of the driveway, not the driveway as well. After all of the parties moved for articulation or reconsideration, the court rendered judgment finding that the plaintiff held a prescriptive easement over the driveway.

       Although this sentence does not contain the language indicating that “it is adjudged,” or that the court “[renders] judgment accordingly,” we treat this as a part of the judgment file required for this appeal.

       The plaintiffs survey map indicates a northerly boundary of 213.56 feet in length and a southerly boundary of 205.39 feet in length. In contrast, the deed description called for those boundaries to measure 200 feet in length. The plaintiffs survey rendered lengths inconsistent with the deed description as to three of the four boundaries.

       Memorandum of decision, 3.

       Count one of the plaintiffs amended revised complaint, asks for a judgment establishing title in the plaintiff by adverse possession over all that land described in “exhibit c” attached to the complaint, dated June 12,2000. When one looks at the record filed April 25, 2001, provided to us, no exhibit is attached to the complaint. Nonetheless, an examination of the trial court file reveals that exhibit c was in fact attached to the amended revised complaint. It describes all that land easterly and northerly of a line described on a certain map entitled “Property Survey prepared for Chester Lisiewski, 108 Bushnell Hollow Road, Sprague, Connecticut, scale 1” = 20’, May 1998, Ident No. 98-065, Last revised 1/14/00” prepared by John U. Faulise, Jr., licensed land surveyor. We note that the reference to the northerly compass direction appears to be an error and that apparently reference to southerly was intended and that the plaintiff apparently sought a judgment of title by adverse possession not just to the disputed area but also to the portion of the premises to which we have determined that the plaintiff obtained title by deed from his wife, who obtained title by deed from Reinhold Seidel, recorded in volume 16, pages 410 and 411 of the Sprague land records. That description reads as follows: “Beginning at a point on the northerly side of [Bushnell Hollow Road] at the southeasterly comer of these conveyed premises and the southwesterly comer of land of Esdras Gosselin and running thence northerly along a wire fence 415 feet bounded easterly by said Gosselin land; thence westerly 200 feet to a bound; thence southerly on a line parallel with and 200 feet distant westerly from the first described line 415 feet to the northerly side of said [road], the last two lines bounded northerly and westerly by remaining land of the grantor; thence easterly along the northerly side of said [road] 200 feet to the point of beginning; being a portion of the premises conveyed to Reinhold Seidel by deed dated January 8,1934 and recorded in the Sprague land records, Vol. 11, Page 356.”
      We remand to the trial court for its determination as to this claim only as to the disputed area as shown on the above referenced Faulise map.

       The defendant’s conclude at one point in their brief that the “underlying facts do not support a finding, by clear and positive proof, that the plaintiffs use of the right of way was adverse.” The only argument the defendant’s advance, however, concerns evidence that could support an inferential finding that the plaintiff obtained permission to use the gravel road from persons holding title to it. Therefore, we restrict our analysis to that aspect of the evidence.


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. BILLY G. HUNT
    (AC 21495)
    Flynn, Bishop and McDonald, Js.
    Argued May 29
    officially released October 15, 2002

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and David Shepack, senior assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Billy G. Hunt, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sale of a narcotic substance in violation of General Statutes § 21a-278 (b) and two counts of sale of a narcotic substance within 1500 feet of a private elementary school in violation of General Statutes § 21a-278a (b). On appeal, the defendant argues that (1) the court improperly failed to grant his motion for the disclosure of the identity of a confidential informant and (2) there was insufficient evidence to sustain his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 27, 1999, Detective Brian Boutote, working undercover with the Waterbury regional narcotics task force, entered the Franklin Street Cafe in Torring-ton, accompanied by a confidential informant, at approximately 10 p.m.. Upon entering the bar, which was located within 1500 feet of St. Peter’s Elementary School, Boutote purchased two beers and sat down at one of the tables with the informant. After about ten to fifteen minutes, a man and a woman came to Bou-tote’s table and began a conversation with the informant. Boutote sat facing a pool table and could observe the defendant. The informant’s back was toward that area of the bar. After Boutote had observed a series of hand to hand drug transactions between the defendant and others at the bar, Boutote left the table and approached the defendant. Boutote showed the defendant a $20 bill and asked, “Can I get a twenty?” whereupon the defendant gave Boutote a small plastic bag with a Hershey kiss design that contained a white powdery substance.

Upon leaving the bar, Boutote met with Officer Jennifer Hayes of the Torrington police department at a prearranged location, where Boutote reported that he made the purchase from the defendant and turned the bag over to Hayes. A subsequent laboratory test revealed that the substance was freebase cocaine.

On June 3, 1999, Boutote again entered the Franklin Street Cafe at about 10 p.m. for the purpose of making a second narcotics purchase from the defendant. The informant did not accompany him on that occasion. Upon entering, Boutote saw the defendant sitting at the end of the bar and approached him. Boutote then gave a $20 bill to the defendant. The defendant, in turn, reached into a bag of Doritos and handed Boutote a small clear plastic bag with a Hershey kiss on it that contained a white powdery substance. The defendant then stood up and looked out a window and noticed the police outside. After telling Boutote that the police were outside, the defendant placed his bag of Doritos behind the bar and walked to the other side of the establishment. Boutote ordered the defendant a drink and then left the bar to meet with Hayes. Boutote turned the bag over to Hayes and informed her that he had purchased it from the defendant. The substance subsequently was determined to be freebase cocaine.

I

The defendant claims that the court improperly failed to grant his motion for an order directing the disclosure of the identity of the confidential informant with Bou-tote on May 27, 1999. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. Prior to trial, the defendant filed a motion seeking an order to have the state identify the confidential informant who had accompanied Boutote.

On the morning that the evidence was to start, the court held a hearing on the defendant’s motion. The sole witness at the hearing was Boutote. Boutote testified that on May 27,1999, he entered the Franklin Street Cafe with an informant who had been promised anonymity. The purpose of using an informant in the Franklin Street Cafe operation was so that the undercover officer would not have to enter the bar by himself. Boutote testified that the informant was only “a tool, a prop.” Upon entering the bar, Boutote ordered two beers and sat at a table with the informant. After several minutes, two individuals approached Boutote’s table and sat down, engaging the informant in conversation. While the informant remained at the table with his back toward the defendant, who was near the pool table, Boutote walked over to the defendant, whom Boutote had been watching, gave him a $20 bill and, in turn, received a clear plastic bag containing a white powdery substance. Boutote testified that he had observed that the informant did not see him approach the defendant and that the informant was not a witness to the transaction. He testified that the informant, whom he referred to as “they,” was “surprised” that Boutote had made the drug buy because the informant was not aware of it. The informant told Boutote that “they did not see a transaction.”

In denying the defendant’s motion, the court found as follows: “The court finds the officer who testified, the detective, credible, believes the [confidential informant’s] function there that evening was to be a tool or a prop and that based upon our law . . . and on the basis of these facts, the informant’s involvement in the transaction did not rise to the level of participation that would require disclosure of his or her identity. It is the defendant’s burden to show that the balance of the evidence falls in favor of disclosure. And in this case, the court finds that the defendant did not meet that particular burden. All the court heard was mere speculation that the informant’s information would be helpful to the defense, and, under our law, that is not sufficient to mandate disclosure. Disclosure should be given where the informant is a key witness or participant in the crime here. This [confidential informant] was neither. Based upon those reasons, the motion is denied.”

“In Roviaro v. United States [353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)], the United States Supreme Court had occasion to define the nature and scope of the informant’s privilege. What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. . . .

“Roviaro established a test for assessing challenges to the applicability of the informant’s privilege. This test involves the balancing of two competing interests: (1) the preservation of the underlying purpose of the privilege; and (2) the fundamental requirements of fairness. . . . The underlying purpose of the privilege is to protect the public interest in the flow of information to law enforcement officials. The fundamental requirements of fairness comprise the defendant’s right to a fair trial, including the right to obtain information relevant and helpful to a defense. . . . Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Jackson, 239 Conn. 629, 632-33, 687 A. 2d 485 (1997).

“As a threshold matter, we set forth the standard by which an appellate court may review the propriety of a trial court’s decision to order disclosure. It is a basic tenet of our jurisprudence that we afford deference to the trial court and assess the trial court’s conclusions pursuant to an abuse of discretion standard. . . . [T]he determination of whether an informer’s identity shall be revealed is reviewed as a matter involving the exercise of discretion by the court. ... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665, 759 A.2d 79 (2000).

“The privilege to maintain the secrecy of the informant’s identity is part of a complex privilege relating to the needs of government. Four general principles should be considered in applying the privilege: (1) The communications must originate in a confidence that they will not be disclosed ... (2) [t]his element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties ... (3) [t]he relation must be one which in the opinion of the community ought to be sedulously fostered [and] (4) [t]he injury that would inure to the relation by the disclosure . . . must be greater than the benefit thereby gained [by disclosure]. ... All four are clearly present in the case of the informant-government relationship.” (Citation omitted; internal quotation marks omitted.) State v. Jackson, supra, 239 Conn. 633.

“A genuine privilege . . . must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity — to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship. That the government has this privilege is well established, and its soundness cannot be questioned.” (Emphasis in original.) 8 J. Wigmore, Evidence (4th Ed. 1961) § 2374 (f), pp. 761-62.

“Once the state has invoked the privilege, it is then the defendant’s burden to show that the balance of the evidence falls in favor of disclosure. . . . This burden is met by addressing the two competing interests identified in Roviaro. The defendant may show that the informant’s role as a police agent has been disclosed to the people likely to retaliate against the informant . . . which he has not done, or he may show that disclosure of the informant’s identity is essential to the defense. . . . Disclosure is essential to the defense where nondisclosure could hamper the defendant’s right to a fair trial, such as where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Jackson, supra, 239 Conn. 636-37.

The state introduced evidence, which the court credited, that the informant had been promised anonymity. The defendant argues that the confidential informant was a witness to the events that transpired on May 27, 1999. It is his contention that the informant “had the potential to the defense to rebut these charges with potential testimony that other people at the Franklin Street Cafe were selling narcotics, that the defendant was not present when the undercover [detective] claims he purchased narcotics from the defendant and/or that the undercover [detective had] purchased narcotics from a third person other than the defendant . . . .” (Emphasis added.) The defendant contends that the informant’s testimony would have supported his defense of mistaken identity. We conclude that the defendant has failed to establish that the confidential informant’s testimony would have been essential to his defense.

“Mere speculation that the informant’s information will be helpful to the defense is not sufficient to mandate disclosure or an in camera hearing.” State v. Richardson, 204 Conn. 654, 663, 529 A.2d 1236 (1987). “Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto.” (Internal quotation marks omitted.) State v. Baker, 50 Conn. App. 268, 273, 718 A.2d 450, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). There was no evidence presented to the court to suggest that the confidential informant could provide the evidence that the defendant suggested. The only evidence that the court heard was from Boutote. Boutote testified that the informant was not with him when he approached the defendant to make the drug transaction and that the informant was not aware that the transaction had occurred. When asked by the defendant’s counsel if the informant had observed the transaction, Boutote testified: “The informant indicated to me when I went back to the table and I said, ‘We’re all set,’ they [the informant] were surprised that I made a transaction because they [the informant] weren’t aware,” and, “I know that the informant told me they [the informant] did not see a transaction.” Without any evidence to suggest that the confidential informant was a witness to, or a participant in, the transaction, the proposed testimony was based simply on speculation, which is “not sufficient to mandate disclosure.” (Internal quotation marks omitted.) Id., 274.

The court’s decision rested on the testimony of Bou-tote, the only witness called to testify at the hearing. “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. ... As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record. . . . We, therefore, defer to the trial court’s credibility assessments and conclude that there was ample evidence in the record to support the trial court’s findings and conclusions.” (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002).

Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for an order directing the disclosure of the identity of the confidential informant.

II

The defendant also claims that there was insufficient evidence to sustain his conviction because it was based “solely on the unreported, unreliable, uncorroborated and inconsistent testimony of [Boutote] . . . .” That claim is without merit and requires no further discussion. See State v. Griffin, 253 Conn. 195, 202, 749 A.2d 1192 (2000); State v. Barnett, 53 Conn. App. 581, 591-92, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells . . .any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278 by . . . selling . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary . . . school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278. . . .”