author: Peters, C. J.

text:
    Carolyn Turner v. Richard Turner
    (14231)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued May 29
    decision released July 18, 1991

      Rochelle Homelson, assistant attorney general, and Lucy Potter, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph X. Dumond, Jr., assistant attorney general, for the appellants (state and plaintiff).

      Andrew M. Dewey, for the appellee (defendant).
   Peters, C. J.

The principal issue in this appeal is whether legislation authorizing the modification of child support orders in light of established child support guidelines applies retrospectively to orders of child support entered before the effective date of the statute. The state of Connecticut, as a party in interest pursuant to General Statutes § 46b-55 (a), moved on February 28,1990, to modify an order entered in 1988 for the support of the minor children of the plaintiff, Carolyn Turner, and the defendant, Richard Turner, on the ground that the defendant’s financial circumstances had substantially changed after the entry of the order. After the legislature enacted Public Acts 1990, No. 90-188 (P.A. 90-188), which authorized the modification of child support orders based on a substantial deviation from the Connecticut child support guidelines (the guidelines), the state enlarged its motion to seek modification on the ground that the 1988 order substantially deviated from the guidelines. The family support magistrate granted certain nonmonetary modifications to the 1988 order but denied the substantial financial modification requested, and the trial court approved the magistrate’s order. The state and the plaintiff filed a joint appeal to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023, and we reverse.

The relevant facts are undisputed. The trial court, Hon. Simon Cohen, state trial referee, dissolved the marriage of the parties on January 25, 1982, and granted custody of the couple’s four minor children to the plaintiff. At that time, the court ordered the defendant to pay $5 per week for support of each child, to pay $10 per week to reduce an arrearage of $3369.66 owed to the state for child support payments, and to maintain medical insurance for the children as available through his employer. At the time of the dissolution and at all times since then, the plaintiff and her minor children have been recipients of aid under Connecticut’s Aid to Families with Dependent Children (AFDC) program.

On the motion of the state and by stipulated agreement with the defendant, the court, Covello, J., modified the child support order in 1986 to require the defendant to pay a total of $85 per week for the support of the three children who were then still minors and to pay $5 per week to reduce the arrearage owed to the state, which was then calculated to be $1015.73. After the defendant’s continued failure to keep up his support payments had led to an order by the court, Mulcahy, J., finding him in contempt, he successfully moved for a modification of the support order on the ground of substantially adverse financial circumstances arising out of his own back injury and out of medical bills he had undertaken to pay for his second wife and his stepdaughter. The modification granted by the court, Mulcahy, J., in 1988 ordered the defendant to pay $60 per week for current support of his three minor children and $5 per week for the arrearage of $8069.63 owed to the state on that date.

Alleging a substantial improvement in the defendant’s financial circumstances, the state initiated the present proceeding on February 28, 1990, for an upward modification of the defendant’s support obligation. After several continuances granted at the defendant’s request, a hearing on the state’s motion was held on October 19,1990. At that hearing the state enlarged its request to include, as an alternative ground for modification, the substantial deviation of the existing order from the Connecticut child support guidelines, pursuant to P.A. 90-188, which had taken effect on October 1, 1990.

After reviewing financial affidavits and hearing testimony regarding the defendant’s financial circumstances, the family support magistrate ruled that the defendant’s financial circumstances had not changed so substantially as to warrant a modification of the child support order entered in 1988. The magistrate also ruled that P.A. 90-188 was inapplicable in the absence of a clear expression of legislative intent concerning its retroactivity. The magistrate accordingly issued a memorandum of decision that granted only nonmonetary relief, including the incorporation of General Statutes § 46b-84 (c) into the medical insurance provision of the original order and the allocation of the child support payments only to the two youngest children in order to avoid affecting social security disability benefits that the remaining minor child, then 17, was receiving. The trial court, Steinberg, J., approved the magistrate’s decision and rendered judgment accordingly.

On appeal, the state and the plaintiff assert that the trial court: (1) abused its discretion in finding that the defendant’s financial circumstances had not substantially changed; and (2) mistakenly concluded that the modification provision enacted in P.A. 90-188 should not be applied to orders entered before the effective date of the act. Because we hold that the trial court should have considered modifying the child support order on the basis of its substantial deviation from the amount set forth in the child support guidelines, we reverse the judgment and remand the case to the trial court for consideration of the factors mandated by the guidelines.

I

We first address the contention that the trial court abused its discretion in finding that the defendant’s financial circumstances had not improved so substantially as to warrant a modification of the child support order. The state and the plaintiff assert that because the defendant’s net weekly income had increased by approximately 61 percent, while his expenses had increased only by approximately 26.7 percent, over the period between the 1988 order and the 1990 motion for modification, the magistrate abused her discretion in denying the motion based upon a substantial change in circumstances. In light of all the circumstances set forth in the magistrate’s memorandum of opinion, we are unpersuaded by this claim.

The scope of our review of this issue is limited. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.” McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981); Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981). Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was “clearly erroneous in view of the evidence and pleadings in the whole record.” Practice Book § 4061. In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did. deCossy v. deCossy, 172 Conn. 202, 204-205, 374 A.2d 182 (1977).

In the present case, the state and the plaintiff asked the court to increase the defendant’s child support obligation from $60 per week to $175 per week for support of the two minor children who were then fifteen and sixteen years old. The plaintiff was at that time receiving $134 per week in AFDC benefits for support of the two children, and the support increase that was requested would enable her eventually to be removed from welfare. The parties noted that the amount requested was $10 less than that set forth in the child support guidelines based on the defendant’s net weekly income, but that the deviation was justified to preserve the plaintiff’s eligibility for Title XIX medical insurance (Medicaid), which she needed because her health was poor. The state also sought an order of $25 per week in payment of the defendant’s arrearage of $7155.15. The total sought by the state and the plaintiff was therefore $200 per week.

The defendant’s financial affidavits and testimony revealed that during the period from 1988 to 1990 his net weekly income, including his wages and a $60 weekly payment of child support from his stepdaughter’s father, had risen from approximately $316 to approximately $508, for a net increase of approximately 61 percent. In the same time period, however, his weekly expenses, excluding his child support and arrearage obligations of $65 and arguably unnecessary expenses such as cigarettes, had increased from $418 to approximately $530. The most significant increases were a $60 per week rent increase and a $49 weekly expense for psychotherapy for his current wife; other expenses included payments on outstanding medical bills incurred for treatment of his wife and stepdaughter. The state and the plaintiff argued, however, that the amount allowed as necessary expenses should have been further reduced to approximately $429, because $111 of the expenses claimed by the defendant were medical expenses for his stepdaughter, for which her father was legally required to maintain insurance.

In her memorandum of decision rejecting the proposed order for increased support, the magistrate took account of the fact that the defendant, who had regularly been meeting his reduced child support obligations of $65 per week, had described the proposed order as financially disastrous for him. In evaluating that possibility, the magistrate expressed her concern that the plaintiff, who stood to lose her $134 weekly AFDC payments if the requested support increase were ordered, might find herself in a precarious financial situation if the defendant failed to meet his obligation even for one week. Finally, the magistrate noted that although the defendant had managed to “narrow the gap” between his income and his expenses between 1988 and 1990, at no time during that period had his weekly income been adequate to meet his allowable weekly expenses. Considering these various factors in their entirety, the magistrate concluded that the plaintiff had not met her burden of proving that the defendant’s financial circumstances had so substantially changed as to warrant an order increasing his support obligation.

In the circumstances of this case, we are not persuaded that the trial court abused its discretion in approving the magistrate’s order denying an upward modification on the ground of a substantial change in the defendant’s financial circumstances. In other cases in which this court has upheld modifications based on substantial increases in the obligor’s income, the record has indicated that the obligor’s income was more than adequate to meet his own allowable expenses as well as the increased order. See, e.g., McCann v. McCann, 191 Conn. 447, 450, 464 A.2d 825 (1983); McGuinness v. McGuinness, supra, 10-12. In this case, even if, as the state and the plaintiff urge, the trial court had deducted from the defendant’s allowable expenses the amount he was paying toward his stepdaughter’s medical care, his allowable weekly expenses would still have been $429, exclusive of his child support obligation, while his net weekly income, excluding the amount received from his stepdaughter’s father for her support, would have been only $448. The addition of his current support obligation of $65 would leave his income short of his essential obligations. We conclude, accordingly, that the trial court did not abuse its discretion in denying the motion to modify the child support order based on a substantial change in the defendant’s financial circumstances.

II

The second claim raised by the state and the plaintiff is that the trial court improperly denied their request for upward modification of child support on the basis of substantial deviation from the Connecticut child support guidelines, pursuant to the amendment of General Statutes § 46b-86 contained in Public Acts 1990, No. 90-188, § 1. Because pre-1990 legislation already presumptively required initial support orders to comport with statutory support guidelines; Public Acts 1989, No. 89-203; the state and the plaintiff contend that the legislature, in order to have the 1990 act have a practical effect, necessarily must have intended to authorize modification of existing support orders on the basis of substantial deviation from the child support guidelines. We agree.

We acknowledge the accepted principle of statutory construction that a statute affecting substantive rights is to be applied only prospectively unless the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. Darak v. Darak, 210 Conn. 462, 467-68, 556 A.2d 145 (1989). Other equally compelling principles of statutory construction, however, require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. Sutton v. Lopes, 201 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982). We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable. State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988); State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985). We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987).

Because a purely prospective application of the substantial deviation provision of P.A. 90-188 appears to be lacking in purpose, we look to the history of its enactment, to the mischief it was designed to remedy, and to the underlying policy it was intended to serve, to determine what purposes the legislature sought to achieve. Those purposes are best understood in the context of developments in the federal law regarding child support in the 1980s and in the context of other developments in the child support law of Connecticut.

Since 1984, the United States Congress has actively encouraged states to take measures to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for support of children. The Child Support Enforcement Amendments of 1984, enacted as Public Law 98-378 and codified at 42 U.S.C. § 666 et seq., amended part D of title IY of the Social Security Act to require that states establish procedures to improve the effectiveness of child support enforcement (IV-D) programs. In those amendments, Congress conditioned the states’ receipt of federal funds for AFDC programs and for IV-D programs upon compliance with these requirements. Among the requirements was a provision directing states to establish, by law or by judicial or administrative action, guidelines for child support award amounts that would be available to, but not binding upon, judges who had the authority to enter child support orders. 42 U.S.C. § 667 (a). Such guidelines were intended to provide reliable benchmarks for use in quasi-judicial proceedings, to expedite awards of child support, and to guide courts to more equitable awards in order to address the “feminization of poverty” resulting from consistent underestimates of the cost of rearing children by increasing the average level of awards. See, e.g., R. D. Thompson & S. F. Paikin, “Formulas and Guidelines for Support,” 36 Juv. & Fam. Ct. J. 33 (1985).

Four years later, Congress enacted the Family Support Act of 1988 to increase the responsibility of the states to assist all families, including those who do not receive welfare assistance, to establish, modify and enforce support obligations. Public Law 100-485, codified at 42 U.S.C. § 666 et seq. Section 103 (a) of the 1988 act required the states to create a rebuttable presumption that the amounts recommended in the child support guidelines are the correct amounts to be awarded. Section 103 (c) of the act further required that the states establish a procedure for “the periodic review and adjustment of child support orders being enforced under this part.” (Emphasis added.)

As the state and the plaintiff argue, the natural and plain meaning of the reference in § 103 (c) of the Family Support Act to “orders being enforced” encompasses all support orders currently under the jurisdiction of the courts of the state. Periodic reviews and adjustments of support orders were intended to create a mechanism by which orders entered before the promulgation of a state’s child support guidelines could be brought up to levels comparable to those entered after the guidelines took effect. Without such a mechanism, full implementation of the goals served by promulgating guidelines would be delayed for many years. The grandfathering of pre-guidelines orders would frustrate the congressional intent to have parents, rather than state and federal governments, assume the financial responsibility for support of their children to the best of their ability.

The Connecticut legislature enacted P.A. 90-188 in direct response to the federal mandate expressed in § 103 (c) of the Family Support Act. See 33 S. Proc., Pt. 9,1990 Sess., p. 2703, remarks of Senator Richard Blumenthal; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2,1990 Sess., p. 422, testimony of Attorney General Clarine Nardi Riddle. In reporting the favorable recommendation of the Joint Standing Committee on the Judiciary, Senator Blumenthal supported the enactment to authorize judges to determine whether “over the passage of time there has been a substantial deviation in particular instances from what the guidelines would have required . . . .”33 S. Proc., Pt. 9,1990 Sess., pp. 2703-2704, remarks of Senator Richard Blumenthal.

The legislative history of the enactment of P.A. 90-188 indicates that several legislators expressed concern about the possibility that modification of support orders might retroactively create automatic arrearages. See, e.g., 33 S. Proc., Pt. 9, 1990 Sess., p. 2705, remarks of Senator Thomas F. Upson. To address this concern, § 1 of P.A. 90-188 states that “[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” We construe this language as making a distinction between, on the one hand, an impermissible retroactive modification that would create an arrearage dating back to the time at which the trial court determined that a substantial deviation had occurred, and, on the other hand, a permissible retrospective application of the statute that would authorize the court to modify, for the future, orders entered prior to the act’s effective date to bring them up to the level established by the present guidelines. By limiting retroactivity to the period during which a motion for modification was pending, the legislature preserved the due process rights of individual obligors to notice of their potential liability and an opportunity to rebut the presumptions created by the operation of the guidelines. The legislative record manifests no intention, however, to limit the application of the act only to orders entered after its effective date, in contravention of the federal mandate that all “orders being enforced” be subject to periodic review and adjustment.

Our construction of P.A. 90-188 to permit modification of prior child support orders is informed by other statutory developments in Connecticut’s child support enforcement law. In the same legislative session in which P.A. 90-188 was enacted, the legislature also enacted Public Acts 1990, No. 90-213, § 46 (P.A. 90-213), to reverse the effect of our judgment in Darak v. Darak, supra. In Darak, we considered the retrospective applicability of Public Acts 1987, No. 87-104 (P.A. 87-104), which amended § 46b-86 to permit a court to modify an alimony or support order based on a showing of a substantial change in circumstances, whether or not such change had been contemplated by the parties at the time of the original order. We concluded that the amendment was not to be applied to orders entered prior to the effective date of the amendment because the legislature had not clearly and unequivocally expressed its intention that it be so applied. Darak v. Darak, supra, 468-70. In P.A. 90-213, § 46 (a), however, the legislature amended the language we had construed in Darak to provide that modification “of any child support order issued before or after the effective date of this act” could be made on the basis of a showing of a substantial change in circumstances.

According to well established principles of statutory construction, an amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act. Darak v. Darak, supra, 471; State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987). If an amendment is enacted soon after controversies arise regarding the interpretation of the prior act, “ 'it is logical to regard the amendment as a legislative interpretation of the original act . . . .’ ” State v. Blasko, supra, quoting 1AJ. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 22.31. The legislature’s prompt action in adopting the expressly retrospective language of P.A. 90-213, § 46, unambiguously clarifies its original intention that P.A. 87-104 applies to all alimony and support orders, regardless of the date on which they were entered.

The magistrate’s memorandum of decision in this case noted that P.A. 90-213 was enacted to counteract our holding in Darak. The magistrate concluded, nevertheless, that the express statement of retroactivity added by the 1990 amendment was intended to apply only to the “substantial change of circumstances” provision of § 46b-86. We conclude, to the contrary, that these amendments, which were enacted in the same legislative session to enhance the ability of parties to modify support orders, must be construed to create one consistent body of law. Cf. Sutton v. Lopes, supra, 120.

Both the “substantial change of circumstances” and the “substantial deviation from child support guidelines” provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole, as reflected in the mandatory periodic revisions of the child support guidelines. See General Statutes § 46b-215a. In light of the similar purposes and language of these provisions, we conclude that the legislature intended both provisions to be applicable to orders entered before the provisions became law.

In further support of our interpretation of the legislative intent underlying P.A. 90-188, we take judicial notice of a statutory development that occurred in the 1991 legislative session, a few months after the trial court rendered its judgment in this case. While the legislature was considering a bill that would establish a standard by which a court could determine what degree of deviation from the child support guidelines might be considered “substantial,” an attorney for a legal services organization informed the Judiciary Committee that trial courts had construed P.A. 90-188 to preclude its retrospective application to orders entered before the effective date of the act. See Conn. Joint Standing Committee Hearings, Judiciary, March 22, 1991, pp. 888-89, remarks of Steven Eppler-Epstein. The legislature subsequently enacted Public Acts 1991, No. 91-76, § 1 (P.A. 91-76), which added the following provisions to § 46b-86 immediately following the text that had been added by P.A. 90-188: “There shall be a rebuttable presumption that any deviation of less than fifteen percent from the child support guidelines is not substantial and any deviation of fifteen percent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after the effective date of this act.” This act was signed by the governor on May 9,1991, and became effective on that date. See Public Acts 1991, No. 91-76, § 7.

Because P.A. 91-76 was enacted less than eight months after P.A. 90-188 took effect and included language directly responsive to the issue of retrospectivity raised by this case, it is indeed logical to regard it as a legislative interpretation of P.A. 90-188. See State v. Blasko, supra. Although the perceived need for such an interpretative amendment may indicate that the legislature did not express its earlier intention as clearly as it might have done, the promptness with which it adopted the 1991 amendment unequivocally indicates that it originally intended that the substantial deviation provision should be applied to all existing orders, not merely to those entered after October 1, 1990.

In light of the federally mandated objectives of P. A. 90-188, its language and legislative history, and contemporaneous statutory developments in Connecticut’s child support law, we conclude that the magistrate improperly refused to consider modifying the child support order in this case on the basis of a claimed substantial deviation from the child support guidelines. We accordingly remand the case to the trial court for further proceedings. In those proceedings, the court is to modify the child support order in accordance with the guidelines unless the defendant satisfies his burden of proving that imposition of such an order would be inequitable or inappropriate. In determining whether the defendant has satisfied this burden, the court should consider the factors set forth in the methodology and general provisions of the child support guidelines as well as the specific figures set forth for the defendant’s adjusted income level. If he does satisfy that burden, the court must make a specific finding on the record to that effect.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 46b-55 provides in relevant part: “(a) The attorney general shall be and remain a party to any action for dissolution of marriage, legal separation or annulment, and to any proceedings after judgment in such action, if any party to the action, or any child of any party, is receiving or has received aid or care from the state. The attorney general may also be a party to such action for the purpose of establishing, enforcing or modifying an order for support or alimony if any party to the action is receiving support enforcement services pursuant to Title IV-D of the Social Security Act.”

       Section 1 of Public Acts 1990, No. 90-188, repealed General Statutes § 46b-86 and substituted the following in lieu thereof: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party OR UPON A SHOWING THAT THE FINAL ORDER FOR CHILD SUPPORT SUBSTANTIALLY DEVIATES FROM THE CHILD SUPPORT GUIDELINES ESTABLISHED PURSUANT TO SECTION 1 OF PUBLIC ACT 89-203, UNLESS THERE WAS A SPECIFIC FINDING ON THE RECORD THAT THE APPLICATION OF THE GUIDELINES WOULD BE INEQUITABLE OR INAPPROPRIATE. IN DETERMINING WHETHER TO MODIFY A CHILD SUPPORT ORDER BASED ON A SUBSTANTIAL DEVIATION FROM SUCH CHILD SUPPORT GUIDELINES THE COURT SHALL CONSIDER THE DIVISION OF REAL AND PERSONAL PROPERTY BETWEEN THE PARTIES SET FORTH IN THE FINAL DECREE AND THE BENEFITS ACCRUING TO THE CHILD AS THE RESULT OF SUCH DIVISION. After the date of judgment, modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. NO ORDER FOR PERIODIC PAYMENT OF PERMANENT ALIMONY OR SUPPORT MAY BE SUBJECT TO RETROACTIVE MODIFICATION, EXCEPT THAT THE COURT MAY ORDER MODIFICATION WITH RESPECT TO ANY PERIOD DURING WHICH THERE IS A PENDING MOTION FOR MODIFICATION OF AN ALIMONY OR SUPPORT ORDER FROM THE DATE OF SERVICE OF NOTICE OF SUCH PENDING MOTION UPON THE OPPOSING PARTY PURSUANT TO SECTION 52-50.”

       The state first asserted the alternative ground of substantial deviation from the child support guidelines at the hearing on its motion to modify on October 19, 3990. Although the magistrate noted that this alternative ground had not been raised in the motion of February 28,1990, the defendant did not object to the enlargement of the motion on procedural grounds but argued the merits of applying the substantial deviation standard created by Public Acts 3990, No. 90-188 in this case. Counsel for the defendant acknowledged in oral argument in this court that the defendant had therefore waived any procedural objection based on lack of notice.

       The state and the plaintiff also assert a claim, not raised below, that the trial court violated the plaintiff’s right to equal protection of the laws under the fourteenth amendment to the United States constitution and under article first, § 20, of the Connecticut constitution by considering the plaintiff’s receipt of welfare benefits as a factor mitigating against an upward modification of the defendant’s support obligation. We will ordinarily consider only claims that are distinctly raised and decided in the trial court in the first instance. See Practice Book § 4185. For this reason, and because equal protection claims depend upon classifications that are inherently factbound and often a matter of degree; see Gunther v. Dubno, 195 Conn. 284, 294, 487 A.2d 1080 (1985); we will not address this claim. The state and the plaintiff will have the opportunity to raise it in the hearing that will be required on remand.

       The magistrate’s finding that the defendant’s 1988 net weekly income was $326.39 incorporated an arithmetical error in the defendant’s 1988 financial affidavit. All parties stipulate that the correct figure should have been $316.39.

       The magistrate found the psychotherapy expense to be $57 per week. The parties stipulated, however, that the correct figure, when adjusted for annual insurance copayments, was $49 per week.

       Public Acts 1989, No. 89-203 was codified as General Statutes § 46b-215b. That section provides in relevant part: “(a) The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any-updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.”

       The Child Support Enforcement Amendments of 1984 required the states to establish, inter alia, statutory procedures for withholding from income amounts payable as support, for the expedited establishment of paternity, for imposing liens against real and personal property for amounts of overdue support, and for reporting overdue support to credit agencies. Public Law 98-378, § 466 (a).

       This distinction was discussed in the public hearing on the proposed amendment. See, e.g., the interchange between Lucy Potter, a legal services attorney and member of the child support guidelines commission, and Representative Douglas C. Mintz. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1990 Sess., p. 503.

       In his remarks to the Judiciary Committee, Attorney Steven EpplerEpstein expressly referred to the decision of the trial court in this case. Although he proposed the amendment regarding retrospective application as a “modification” of P.A. 90-188, it is apparent from the context of his remarks regarding conflicting judicial interpretations of P.A. 90-188 that the retrospectivity amendment was intended to clarify the intention of the legislature in that act. See Conn. Joint Standing Committee Hearings, Judiciary, 1991 Sess., March 22,1991, p. 889, remarks of Steven Eppler-Epstein. That the amendment was adopted by the legislature with no apparent discussion may further indicate that the legislature regarded it as a matter of clarification.

       These factors include, inter alia, the assets and unique needs of each party, the present and potential earning capacity of each party, the special needs of children to be supported by either party, the eligibility of either of the parties for state support, the ages and health of the children and parents, the needs of a second family, and other reasonable considerations. See Guidelines for Child Support Standards Developed Pursuant to P.A. 85-548 by the Commission on Support Guidelines, “Methodology.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Edgar Peter Tatum
    (13999)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 25
    decision released July 30, 1991

      Alicia B. Davenport and Steven M. Barry, special public defenders, with whom, on the brief, was Sally S. King, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Marcel A. Bryar, law student intern, for the appellee (state).
   Shea, J.

The defendant, Edgar Tatum, was charged in an information with one count of murder in violation of General Statutes § BSa-SAa and one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). At trial, the jury returned a guilty verdict on the murder charge, but failed to return a verdict on the assault charge. The defendant was subsequently sentenced to a term of sixty years for the murder conviction. He appeals from that conviction, claiming that the trial court improperly: (1) allowed the admission of an in court identification of the defendant after an unnecessarily suggestive pretrial identification procedure had been conducted; (2) instructed the jury on the issue of identification; (3) refused to instruct the jury on the substantive use of certain prior inconsistent statements; and (4) failed to conduct the trial in a fair and impartial manner. We affirm the judgment.

From the evidence presented the jury could reasonably have found the following facts. At approximately 10:30 p.m. on February 25, 1988, Larry Parrett was shot and killed in his home in Waterbury, where he lived with his girlfriend, Tracy LeVasseur. Anthony Lombardo, who lived on the same street, was also shot and wounded at the same time and place. Earlier that evening, Lombardo had been out walking his dog when he noticed a tall black man, later identified as the defendant, knocking on the door of Parrett’s apartment. Lombardo approached the defendant, after having recognized him as someone he had seen at the apartment on other occasions. When LeVasseur opened the door from within, the defendant forced himself and Lombardo into the living room, where LeVasseur and Parrett were smoking cocaine. LeVasseur recognized the defendant as “Ron Jackson,” a man from California who, along with other visitors from California, had spent a number of nights at the apartment selling drugs during the months preceding the incident. Parrett also had been involved in the sale of drugs. When the defendant and Parrett began to argue, Lombardo and LeVasseur left the room and went into the kitchen, where three other men were present. A few moments later, Lombardo returned to the living room to find the defendant pointing a gun at Parrett. Lombardo stepped between the two men, thinking that the defendant might be dissuaded from firing. The defendant nevertheless fired four shots from the gun, striking Lombardo in the shoulder and fatally wounding Parrett.

That night at the Waterbury police station Lombardo was shown a photographic array from which he chose a photograph of a black man named Jay Frazer as that of the man who had shot him and Parrett. The same night LeVasseur also selected a photograph of Frazer from an array shown to her by the police. Neither array contained a photograph of the defendant. One week later, however, LeVasseur went to the Waterbury police and told them that she had identified the wrong man. A nine person lineup was then conducted in which Frazer participated but the defendant did not. After seeing Frazer in person, LeVasseur told the police that he was definitely not the assailant. Thereafter, the police showed another photographic array to LeVasseur from which she chose the defendant’s photograph as that of the person who had shot the victim. Lombardo was subsequently shown a photographic array that included the defendant’s picture, but he declined to identify anyone, explaining that he preferred to see the individuals in person. At the probable cause hearing and at trial, both Lombardo and LeVasseur identified the defendant as the man who had shot Lombardo and Parrett.

I

The defendant first claims that the trial court deprived him of his due process rights undér the fourteenth amendment to the United States constitution when it admitted Lombardo’s in court identification of him which, he argues, was tainted by an unnecessarily suggestive pretrial identification procedure in that Lombardo had viewed the defendant at the probable cause hearing. The defendant argues that the fact that he was the only black man seated at the defense table “conveyed a clear message to Lombardo that [the prosecution] believed Edgar Tatum was the man who had shot him.” He claims that Lombardo’s subsequent identification of him at trial was the product of that unnecessarily suggestive procedure rather than the product of his independent recollection of the crime.

We note at the outset that the defendant failed to raise this claim in the trial court by way of either an objection to the procedure used at the probable cause hearing or a motion to suppress Lombardo’s identification at trial. The defendant concedes that the claim was not preserved at trial, and therefore seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In State v. Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. The record in this case, albeit scant due to the fact that no suppression hearing was held, is adequate for us to review the claim. The defendant’s claim that an unnecessarily suggestive pretrial identification procedure tainted a subsequent identification made at trial is one of constitutional magnitude. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). The third condition of State v. Golding, however, has not been met because the defendant has failed to establish that Lombardo’s pretrial identification of him was the result of an unconstitutional procedure, the necessary predicate for exclusion of Lombardo’s subsequent in court identification.

An in court identification must be excluded, as violative of due process, only if it is the product of an unconstitutional pretrial identification procedure. State v. Smith, 200 Conn. 465, 469-70, 512 A.2d 189 (1986); see United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986). In determining whether a pretrial identification procedure violated a defendant’s due process rights, “the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). Because we conclude that in this case the procedure complained of was not unnecessarily suggestive, we need not reach the second question of the identification’s independent reliability.

We have recognized that generally a one-to-one confrontation between a victim and the suspect presented to him for identification is “ ‘inherently and significantly suggestive’ ” because it conveys the message to the victim that the police believe the suspect is guilty. State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976). We agree with the defendant, as does the state, that the setting of the probable cause hearing was inherently suggestive. The fact that the defendant was conspicuously seated beside his lawyer at the defense table when Lombardo was asked to identify his assailant was as suggestive a scenario as an out-of-court single person showup or a first-time identification of a defendant at trial, where he is also conspicuously seated beside his lawyer at the defense table. Our recognition that the probable cause hearing was suggestive does not, however, end our inquiry. We must next consider whether it was unnecessarily or impermissibly so.

The defendant argues that the suggestive confrontation was unnecessary and a violation of his due process rights because the prosecution could have conducted a lineup or placed him among the courtroom spectators rather than allow him to sit at the defense table beside his lawyer. With this contention we do not agree. In order to try the defendant, it was necessary for the prosecution to present evidence at the preliminary hearing to establish probable cause to believe that he had committed the crimes charged. Conn. Const., art. I, § 8, as amended; General Statutes § 54-46a. At that hearing, the prosecution was thus entitled to elicit Lombardo’s testimony on the issue of identification through the usual mode of putting him on the witness stand and asking him to identify his assailant if his assailant was present in the courtroom. The fact that the prosecution might have taken extraordinary steps to lessen the suggestiveness of the confrontation by using some other identification procedure does not render the routine procedure that was used unnecessary or impermissible. The defendant had no constitutional right to a lineup; State v. Vaughn, 199 Conn. 557, 562, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986); nor did the state have a constitutional duty to conduct one. State v. Vass, 191 Conn. 604, 611, 469 A.2d 767 (1983). The defendant, however, could have requested to be seated among the courtroom spectators or could have made a motion for a lineup prior to the probable cause hearing, pursuant to Practice Book § 782. He failed to take either step.

In determining that Lombardo’s suggestive confrontation with the defendant at the probable cause hearing was not an unnecessary or impermissible one, we contrast that confrontation with other one-to-one confrontations held before trial, such as showups and single photo displays, which are conducted outside a courtroom. Typically, these pretrial procedures occur at or near the scene of the crime; e.g., State v. Amarillo, 198 Conn. 285, 503 A.2d 146 (1986); in hospitals; e.g., State v. Mitchell, supra; State v. Guertin, 190 Conn. 440, 461 A.2d 963 (1983); or at the police station; e.g., State v. Monteeth, 208 Conn. 202, 544 A.2d 1199 (1988); without a judge or lawyer present to protect the defendant against the suggestive tactics of the government. If a mistaken identification occurs as a result of such a suggestive procedure, there is a danger that the witness’ subsequent identification at trial will be nothing more than a confirmation of the initial mistaken identification. Stovall v. Denno, supra. Importantly, since counsel is not ordinarily present at the typical pretrial identification, a defendant is less able to assail the reliability of the identification at trial or to make contemporaneous objection to the procedures used.

Although the probable cause hearing held in this case was a one-to-one pretrial confrontation, it was unlike a showup or single photo display in that it occurred in a courtroom. The initial identification made at the probable cause hearing, therefore, resembled an initial identification made at trial. While there is little doubt that the trial setting is suggestive, for the same reasons that a probable cause hearing is suggestive, “[t]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court.” State v. Smith, supra, 470. “The defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination. . . . The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility.” (Citations omitted.) Id. Because the defendant at the probable cause hearing had the same weapon of cross-examination to combat the suggestiveness of the setting; see General Statutes § 54-46a (b); the risk of misidentification was held to a minimum.

That the routine, albeit suggestive, confrontation between Lombardo and the defendant at the probable cause hearing was “necessary” and entirely permissible is almost axiomatic. To hold otherwise would essentially assign to police and prosecutors a new constitutional duty to hold a lineup or other preliminary identification procedure in every case before an identification could be made at a probable cause hearing. We see no reason to impose such a duty. See State v. Vaughn, supra; State v. Vass, supra. While a situation could conceivably arise in which the normally permissible suggestiveness of a confrontation at a probable cause hearing might rise to the level of an “unnecessarily suggestive” confrontation due to egregious conduct on the part of the prosecution, this is not such a case. Accordingly, we conclude that the trial court properly admitted Lombardo’s identification of the defendant at trial since Lombardo’s previous identification of him at the probable cause hearing was not the result of an unnecessarily suggestive procedure.

II

The defendant next claims that the trial court’s charge to the jury was erroneous in two respects. First, he argues that the charge given on the dangers of eyewitness misidentification was inadequate because it omitted two specific points contained in his request to charge. Second, he argues that the court improperly emphasized the state’s evidence on the element of identification. We find neither argument persuasive.

A

The thrust of the first argument is that the jury was not adequately alerted to the dangers inherent in eyewitness identification because, although the court did instruct the jury on many of the specific dangers, it did not instruct on: (1) the danger that Lombardo had misidentified the defendant due to the one year time lapse between the shooting and his positive identification of the defendant at the probable cause hearing; or (2) the fact that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness. The defendant concedes that the court did warn the jury of all the other dangers raised in his request to charge, but claims that the omission of these two points constitutes reversible error.

The dangers of misidentification are well known and have been widely recognized by this court and other courts throughout the United States. See United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); State v. Davis, 198 Conn. 680, 504 A.2d 1372 (1986); State v. McKnight, 191 Conn. 564, 469 A.2d 397 (1983). In United States v. Telfaire, supra, the United States Court of Appeals for the District of Columbia Circuit proposed model instructions for use in future cases to warn juries about the dangers inherent in eyewitness identification. “The Telfaire instruction tells the jury to consider in appraising the identification testimony of a witness the adequacy of his opportunity and his capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the defendant; whether the witness had seen or known this person in the past; whether the identification was a product of the witness’ own recollection; and the credibility of the witness.” State v. Davis, supra, 685. While we have used the model Telfaire charge as an aid in determining the adequacy of an instruction on eyewitness identification; id.; State v. McKnight, supra, 582; State v. Harden, 175 Conn. 315, 321, 398 A.2d 1169 (1978); we have never required that it be given verbatim in order to ensure that the jury is properly guided. State v. Pollitt, 205 Conn. 132, 152, 531 A.2d 125 (1987); State v. Harrell, 199 Conn. 255, 268-69, 506 A.2d 1041 (1986). “The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” State v. Harden, supra, 322; State v. McKnight, supra, 583.

Our review of the entire charge satisfies us that it was adequate to alert the jury to the dangers inherent in eyewitness identification. Throughout the charge the court emphasized that the burden was on the prosecution to prove the element of identification beyond a reasonable doubt. The court instructed the jury that when deciding the question of identification it should “consider all the facts and circumstances which existed at the time of the observations of the perpetrator by each witness,” and that “the reliability of each witness is of paramount importance” and the testimony on identity should be “thoroughly scrutinized.” It instructed the jury to consider the “totality of all the circumstances affecting identification,” listing the following specific factors: “the opportunity which the witness had to observe the person, the degree of certainty of the identification made in court, whether the witness knew or had seen the person before the identification, the circumstances and degree of certainty or uncertainty of any out-of-court identifications made, whether by photograph or in lineup or other display of a person and the length of time available to make the observations of the perpetrator . . . the lighting conditions at the time of the crime, any physical descriptions that the witness may have given to the police, the physical and emotional condition of the witness at the time of the incident and the witness’ powers of observation . . . .’’The fact that this otherwise exhaustive charge lacked specific references to the time lapse between the shooting and Lombardo’s identification of the defendant and to the greater reliability of an identification made from a group of similar individuals rather than from a one-to-one confrontation does not render it inadequate. “The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request . . . .” State v. Harden, supra, 322. The instructions given included the material portions of both the model Telfaire charge and the defendant’s request and, as such, provided sufficient guidance to the jury on the issue of eyewitness identification.

B

The defendant’s second attack on the court’s instructions is that the court improperly marshalled only the state’s evidence in discussing identification. Because the defendant failed to raise this issue in the trial court, our review of this claim on appeal is limited to whether the court’s conduct so deviated from the impartiality required that it deprived the defendant of a fair trial. State v. Golding, 213 Conn. 233, 239-41, 567 A.2d 823 (1989); State v. Fernandez, 198 Conn. 1, 9-14, 501 A.2d 1195 (1985); State v. Taylor, 196 Conn. 225, 231-32, 492 A.2d 155 (1985). The defendant claims that the court gave a “detailed re-enactment of the prosecution’s case” whereas it neglected to mention that LeVasseur was under the influence of drugs when the shooting occurred, that Lombardo was a habitual drug user, and that one year had elapsed between the shooting and Lombardo’s initial identification of the defendant. He contends that he was deprived of his constitutional right to a fair trial because the court emphasized only facts favorable to the prosecution and none favorable to him. We find this argument untenable.

“The function of the court in a criminal trial is to conduct a fair and impartial proceeding.” State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter. State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. Duffy, 57 Conn. 525, 529, 18 A. 791 (1889). In this case, the court’s references to the evidence were neutral in nature and did not exhort the jury to accept either party’s view of the evidence. They were well within the bounds of fair comment.

Our review of the charge reveals that the court merely referred to some of the evidence presented by the state in an effort to guide the jury in applying the legal principles to the facts of the ease. Throughout this portion of the charge, the court repeatedly stressed that the jury’s recollection of the facts controlled and that it was the jury’s responsibility to determine what weight, if any, to ascribe to the evidence. Moreover, contrary to the defendant’s assertions, the court did indeed draw the jury’s attention to evidence favorable to the defense. The court pointed out that Lombardo had made “prior identifications . . . from photographs” before identifying the defendant and that LeVasseur, too, had identified a person other than the defendant as the perpetrator of the crime. Because we find that the trial court did not improperly marshal the evidence, we reject the defendant’s claim that the court’s comments deprived him of a fair trial.

Ill

The defendant next claims that the trial court improperly failed to instruct the jury that it could consider certain prior inconsistent statements made by Anthony Lombardo as substantive evidence, but limited their use to evaluating his credibility. Specifically, he claims that pursuant to this court’s decision in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the trial court should have instructed the jury that it could consider substantively Lombardo’s prior written and signed statements in which he asserted that he had identified another man, Jay Frazer, as his assailant and that LeVasseur, not Parrett, had opened the door to the apartment on the night of the shooting. The defendant preserved this claim of error by filing an appropriate request to charge and by taking exception to the portion of the charge, as given, that pertained to the use of prior inconsistent statements. The state concedes that the court’s failure to give a Whelan charge was erroneous, but argues that the error was harmless. We agree with the parties that it was error for the court to refuse to instruct on the substantive use of Lombardo’s prior written inconsistent statements, but we agree with the state that the error was harmless.

We note first that the court’s failure to give the requested Whelan charge was an evidentiary error that did not involve the violation of a constitutional right. Consequently, the burden rests upon the defendant to demonstrate the harmfulness of the court’s ruling. State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); but see State v. Torres, 210 Conn. 631, 642-43, 556 A.2d 1013 (1989) (state required to prove harmlessness where the court made a series of fundamentally unfair evidentiary rulings, escalating the error to a constitutional violation). To sustain this burden, the defendant must demonstrate that “it is more probable than not that the erroneous action of the court affected the result.” State v. Jones, supra, 732; State v. Ruth, supra, 196-97; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).

We immediately dismiss the defendant’s claim of harmful error with respect to the second inconsistent statement made by Lombardo concerning who had opened the door to the apartment on the night of the shooting. Whether it was Parrett or LeVasseur who opened the door that night could not possibly have affected the jury’s decision about whether to find the defendant guilty of murder. Any error in that regard was thus harmless.

Turning our attention to the first inconsistent statement made by Lombardo, we note that if the trial court had properly instructed the jury on the substantive use of Lombardo’s prior identification of Frazer as the perpetrator, the jury could have concluded that Frazer, not the defendant, had fired the shots that killed Parrett. The erroneous charge given permitted the jury to conclude only that Lombardo might have been mistaken when he identified the defendant as the perpetrator since he had previously identified someone else. In both instances the jury would have been authorized to use the prior inconsistent statement to find that the defendant had not committed the murder of Parrett, either because Lombardo was lying at trial when he asserted that the defendant was the guilty party or because Lombardo was telling the truth when he had previously stated that Frazer was the guilty party. Since the jury could have acquitted the defendant based on Lombardo’s prior inconsistent statement whether it considered that statement for its substantive truth or its impeachment value, we conclude that the defendant has not demonstrated that the court’s erroneous instruction probably affected the result in this case. The instruction, therefore, was harmless.

IV

The defendant’s final claim of error is that the trial court deprived him of his constitutional right to a fair trial by questioning witnesses in such a way as to endorse the prosecution’s view of the case, prodding the prosecution into making evidentiary objections and chastising defense counsel both in and outside the presence of the jury. Because the defendant failed to raise any objection concerning these matters in the trial court, we review this claim only to determine whether the court’s actions deprived the defendant of his constitutional right to due process of law. State v. Golding, supra, 239-41; State v. Fernandez, supra, 9-10. We find this claim of judicial misconduct to be without merit.

Before turning to the allegations made by the defendant, we recite certain well established principles regarding the responsibilities of the trial judge in conducting a criminal trial. “ ‘Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIY; Conn. Const., art. I, § 8 .... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” . . .’” (Citations omitted.) State v. Gordon, 197 Conn. 413,424D-25, 504 A.2d 1020 (1985); State v. Fernandez, supra, 10. Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so. State v. Bember, supra, 401-402. “Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts.” State v. Fernandez, supra, 11.

Against this legal backdrop, we take up the first instance of alleged impropriety, when during defense counsel’s cross-examination of Lombardo, the court asked him a question concerning the reason for his failure to identify the defendant from a photographic array shown to him by the police. During Lombardo’s direct testimony, he had explained that he had refused to identify anyone from a photographic array shown to him and that he had told the police that he preferred to see the individuals in person because he could not be certain of any identification made from a photograph. On cross-examination, defense counsel sought to draw attention to the fact that Lombardo had not identified the defendant from that photographic array, making no mention of Lombardo’s professed reason for not doing so. After allowing defense counsel to show the photographic array to the jury, the court asked Lombardo whether his reason for not identifying the defendant was his refusal to make any identification without seeing the suspect in person. Lombardo answered affirmatively, confirming his earlier statement on direct. The defendant claims that the court’s question bolstered the prosecution’s case and worked to his disadvantage by conveying a message to the jury that the court endorsed the prosecution’s view of the evidence. We see in the court’s question nothing but an impartial attempt to clarify Lombardo’s testimony on cross-examination in light of his previous testimony on direct. The court properly intervened to assist the jury in understanding the evidence before it.

The next impropriety alleged by the defendant is that in one instance the court assumed the role of an advocate by prodding the prosecution into making an objection. While cross-examining a police officer, defense counsel asked the officer to read aloud the testimony he had given previously at the probable cause hearing. Before the officer did so, the court interjected, “Wait a minute now. Let me see. Read an exhibit that is not in evidence?” The defendant claims that that remark prompted the prosecution to object and that the court thus showed favoritism to the prosecution’s case. What the defendant fails to mention is that the prosecutor did not object after this “prompt” by the court, and the officer did proceed to read from the document. Given the outcome of this exchange, we fail to see how the defendant was prejudiced by the court’s conduct.

The final alleged impropriety in the court’s conduct was its repeated interruptions and chastisement of defense counsel both in and outside the presence of the jury. Specifically, the defendant points to a time when, outside the presence of the jury, the court exhibited frustration with defense counsel for his failure to have the next witness ready to testify and to another time when, in the presence of the jury, the court rebuked defense counsel for misstating the evidence. We dispose of the first allegation summarily, noting that any misconduct that occurred outside the presence of the jury could not possibly have had an impact on its verdict. As to the second allegation, we see nothing inappropriate in the court’s admonition of defense counsel. As this was only one of several instances in which defense counsel had misstated testimony given by a witness, the court acted well within its discretion in warning him not to persist in this tactic. In thus intervening, the court fulfilled its responsibility to see that the jury was not misled. State v. Fernandez, supra; State v. Bember, supra.

We decline to consider any other unspecified instances of judicial misconduct vaguely alluded to in several footnotes to the defendant’s brief. Claimed errors not adequately briefed and not fully developed will not be considered by this court. See Practice Book § 4065; Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987); Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 496, 208 A.2d 748 (1965).

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] See. 53a-54a. murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-60 provides in pertinent part: “(a) A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Following a mistrial on the assault count, the state entered a nolle prosequi on that charge.

       The defendant cheeked into a Southington hotel on February 23,1988, under the name “Ronald Jackson” and checked out at 11:55 p.m. on the night of the shooting although checkout time was not until 11 a.m. the next day.

       Jay Frazer was another of the California visitors who had stayed on occasion at Parrett and LeVasseur’s apartment to sell drugs. He and several others had been arrested in January, 1988, at the apartment after Parrett had asked his landlord to call the police. The defendant was not among those arrested.

       In the interim, LeVasseur realized that Jay Frazer was only about 5’3” or 5’4” tall, much shorter than the man who had shot Parrett and Lombardo. Lombardo’s testimony on this point is consistent,with LeVasseur’s. He told the police on the,night of the shooting that his assailant was over six feet tall.

       At the probable cause hearing, both parties referred to an in person lineup held in mid-May of 1988, from which Lombardo failed to select anyone as his assailant. Since there is no other mention of such a procedure anywhere in the trial record or in any of the appellate briefs, we exclude it from our recitation of the background facts.

       The defendant does not claim that Lombardo’s pretrial identification of him at the probable cause hearing should have been excluded, nor that any of LeVasseur’s identifications of him should have been excluded.

       At oral argument defense counsel vacillated as to whether he was claiming that the unnecessarily suggestive procedure was the probable cause hearing itself or the hearing in conjunction with Lombardo’s previous participation in two photographic array procedures where he had selected the photograph of another man from the first and had declined to select any photograph from the second. Because counsel conceded that there was nothing suggestive about the earlier photographic array procedures themselves, we fail to see how they could in any way add to the suggestiveness of the setting at the probable cause hearing.

       This is true even though the pretrial identification procedure occurred in the courtroom setting of a probable cause hearing. State v. Fullwood, 193 Conn. 238, 476 A.2d 550 (1984) (pretrial identification at a grand jury proceeding scrutinized to determine whether admission of subsequent identification at trial violated defendant’s due process rights); cf. United States v. Bouthot, 878 F.2d 1506 (1st Cir. 1989) (pretrial identification not orchestrated by police scrutinized to determine whether admission of subsequent identification at trial violated defendant’s due process rights).

       If we had found that the procedure was unnecessarily suggestive, it would have been impossible for us to determine whether Lombardo’s identification was nevertheless reliable since the record is insufficient for a review of that prong of the required constitutional test. The defendant’s failure to make a motion to suppress or to voice any other objection to the procedure used at the probable cause hearing leaves us with no way of divining what evidence the state might have presented to rebut the defendant’s claim of an unconstitutional identification procedure if that claim had been raised at trial.

       “When asked to point to the [assailant], an identification witness— particularly if he has some familiarity with courtroom procedure—is quite likely to look immediately at the counsel table, where the defendant is conspicuously seated in relative isolation. Thus the usual physical setting of a trial may itself provide a suggestive setting for an eyewitness identification.” United States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970), cert. denied, 402 U.S. 912, 91 S. Ct. 1392, 28 L. Ed. 2d 654 (1971).

       Conn. Const., art. I, § 8, as amended, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       General Statutes § 54-46a (a) provides: “No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”

       “[Practice Book] Sec. 782.—obtaining nontestimonial evidence FROM DEFENDANT UPON HIS MOTION
      “Upon motion of a defendant who has been arrested, summoned, or charged in a complaint, information or indictment, the judicial authority by order may direct the prosecuting authority to arrange for the defendant’s participation in one or more of the procedures specified in Sec. 775, if the judicial authority finds that the evidence sought could contribute to an adequate defense. The order shall specify with particularity the authorized procedure, the scope of the defendant’s permitted participation, the designation of representatives of the prosecution who may be present, the time, duration, place, and other conditions of the procedure, and the person or persons who may conduct the procedure. Secs. 776 through 781 apply to procedures ordered under this section.”

       See footnote 9, supra.

       General Statutes § 54-46a (b) provides: “Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.”

       In advancing this claim, the defendant characterizes Lombardo and LeVasseur as “uncertain, unclear or inconsistent” identification witnesses, emphasizing that both were habitual drug users, that LeVasseur was under the influence of drugs when the shooting occurred and that both had previously identified another man as the shooter. He also stresses the importance of the eyewitness identifications to the prosecution’s case against him since there was no independent evidence linking him to the crime. These arguments are not dispositive because, while it is true that a trial court’s refusal to give any special instruction whatsoever on the dangers inherent in eyewitness identification constitutes reversible error where “the conviction of the defendant [turns! upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent”; State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); State v. Davis, 198 Conn. 680, 504 A.2d 1372 (1986); in this case the trial court did give a special instruction on the topic, as the defendant himself admits. It is rather the adequacy of that instruction that we are asked to determine in this appeal.

       In this case the defendant’s request to charge substantially echoed the language of the model Telfaire charge.

       In State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (3986), we adopted a rule allowing “the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.”

       The state points out, and we agree, that this error might have been advantageous to the defendant, because, having been instructed to consider the prior inconsistent statement for impeachment purposes only, the jury might have concluded that Lombardo was lying or mistaken on that point and thus, on a theory of falsus in uno, falsus in omnibus, that he was lying or mistaken with respect to the defendant’s involvement in the crime. On the other hand, the defendant’s cause would not have been so advanced had the jury considered Lombardo’s prior statement that LeVasseur had opened the apartment door for its substantive truth, since that fact, in and of itself, had no capacity to exculpate the defendant.


author: Callahan, J.

text:
    State of Connecticut v. Ralph Birch
    (13751)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued June 5
    decision released July 30, 1991

      John J. Davenport, with whom, on the brief, was Timothy C. Moynahan, for the appellant (defendant).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were Frank Maco, state’s attorney, and David Shepack, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Ralph Birch, was charged in a substitute information with the crime of felony murder in violation of General Statutes § 53a-54c. After a trial to a jury, he was found guilty of the crime charged and was sentenced to a term of imprisonment of fifty-five years. The felony murder charge arose out of the burglary of a house in New Milford committed on December 2,1985. In the course of the burglary, Everett Carr, a sixty-five year old man living in the house, was stabbed to death.

On appeal, the defendant argues that his conviction should be vacated and a new trial ordered because the trial court incorrectly denied his motion to suppress his responses to police questioning and erroneously allowed those responses into evidence at his trial.

The relevant facts are undisputed. On December 5, 1985, the defendant was arrested and charged with larceny and burglary. The larceny charge pertained to the theft of a 1973 Buick that had been stolen in Brook-field on November 29,1985, while the burglary charge concerned a crime unrelated to the burglary during which Carr was murdered. On December 6,1985, the defendant was arraigned in the Superior Court, geographical area eighteen, on those charges. At his arraignment, the defendant applied for and was granted a public defender on the charges for which he was being arraigned. The defendant was then taken to the Litchfield community correctional center and held there in lieu of bond.

On December 9, 1985, police officers investigating Carr’s death arrived at the correctional center to execute a search warrant authorizing the taking of blood and hair samples from the defendant. Those officers were accompanied by Detective Scott O’Mara and Sergeant John Mucherino of the Connecticut state police, who were also investigating Carr’s death. After the blood and hair samples had been obtained from the defendant, O’Mara and Mucherino took the defendant to an interview room at the correctional center for questioning.

Before questioning the defendant, O’Mara advised him of his Miranda rights by reading verbatim from a preprinted Connecticut state police form containing the required warnings. O’Mara then had the defendant read the form aloud and write his initials next to each section on the form to indicate that he had understood what he had read. When the defendant had finished reading the entire form, he placed his signature after the section of the form that stated: “I am willing to answer questions and make statements knowing that I have these rights. I do not want a lawyer, I know and understand what I am doing. I do this freely and voluntarily. No threats or promises have been made to me.” O’Mara then asked the defendant if he understood his rights and was willing to discuss the Carr case. The defendant replied affirmatively. O’Mara and Mucherino then interrogated the defendant concerning his possible involvement in Carr’s death.

The defendant was subsequently arrested and charged with felony murder on January 25, 1989. At his felony murder trial, the defendant moved to suppress his responses to O’Mara’s and Mucherino’s inquiries because his responses were allegedly obtained in violation of both his federal and state constitutional rights to counsel. The court denied the defendant’s motion to suppress.

The defendant contends that his motion to suppress should have been granted by the trial court because his invocation of his sixth amendment right to counsel at his arraignment on the unrelated burglary and larceny charges constituted an invocation of his fifth and sixth amendment rights to counsel for all purposes while he remained continuously in custody. He claims, therefore, that the police were prohibited from initiating any discussion with him concerning not only the crimes for which he had been arrested and arraigned but also any other uncharged crimes.

When this case was argued, there existed a split of authority as to whether a defendant who requests the appointment of an attorney at his arraignment, thereby invoking his sixth amendment right to counsel, also invokes his fifth amendment right to counsel for subsequent custodial interrogations concerning other unrelated, uncharged crimes. Compare United States v. Roberts, 869 F.2d 70 (2d Cir. 1989); People v. Bryant, 202 Ill. App. 3d 291, 559 N.E.2d 930 (1990); People v. Crusoe, 433 Mich. 666, 449 N.W.2d 641 (1989); State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983); State v. Stewart, 113 Wash. 2d 462, 780 P.2d 844 (1989), cert. denied, 494 U.S. 1020, 110 S. Ct. 1327, 108 L. Ed. 2d 502 (1990); with United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989); United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir.), cert. denied, 483 U.S. 1010, 107 S. Ct. 3240, 97 L. Ed. 2d 745 (1987); People v. Perry, 205 Ill. App. 3d 655, 563 N.E.2d 1144 (1990), appeal granted, Ill. 2d , 567 N.E.2d 339 (1991). Subsequently in McNeil v. Wisconsin, 501 U.S. , 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991), on indistinguishable facts, the United States Supreme Court resolved that disagreement when it held that the sixth amendment right to counsel is “offense-specific.”

In McNeil, the court noted that in Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), it had held that once the sixth amendment right to counsel had attached and been invoked, any subsequent waiver of that right during police-initiated custodial interrogation would be ineffective. McNeil v. Wisconsin, supra, 2207. The court noted further, however, that the sixth amendment right to counsel is “offense-specific” and commences only “ ‘ “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” ’ United States v. Gouveia, 467 U.S. 180, 188 [104 S. Ct. 2292, 81 L. Ed. 2d 146] (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 [92 S. Ct. 1877, 32 L. Ed. 2d 411] (1972) (plurality opinion)). And just as the right is offense-specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific.” McNeil v. Wisconsin, supra.

The court reasoned that “ ‘[t]he police have an interest .. . in investigating new or additional crimes [after an individual is formally charged with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. . . .' Maine v. Moulton, 474 U.S. 159, 179-80 [106 S. Ct. 477, 88 L. Ed. 2d 481] (1985).” McNeil v. Wisconsin, supra, 2207-2208. “ ‘Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.’ [Maine v. Moulton, supra,] 180 n.16.” McNeil V. Wisconsin, supra, 2208; see also Moran v. Burbine, 475 U.S. 412, 431, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). The court noted, therefore, that because McNeil had provided the statements at issue before his sixth amendment right to counsel had been, or could have been, invoked with respect to the offenses to which the statements he had given related, the sixth amendment did not constitute a bar to the admission of his statements. Similarly, the sixth amendment creates no obstacle to the admission of the defendant’s responses to police interrogation in this case.

In McNeil, the court also disposed of the defendant’s claim of a right to counsel under the fifth amendment, which provides that “‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ In Miranda v. Arizona, 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966) [the United States Supreme Court] established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures’ of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect ‘knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’ ” McNeil v. Wisconsin, supra, 2208.

In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981), the court, however, established a second layer of protection for the Miranda right to counsel. In Edwards, the court held that once a suspect being interrogated asserts a fifth amendment right to counsel, “not only must the current interrogation cease, but [the suspect] may not be approached for further interrogation ‘until counsel has been made available to him,’ [id., 484-85] . . . .” McNeil v. Wisconsin, supra, 2208. That means, as the court has recently held, “that counsel must be present, Minnick v. Mississippi, 498 U.S. [111 S. Ct. 486, 112 L. Ed. 2d 489] (1990).” McNeil v. Wisconsin, supra. “If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody) the suspect’s statements are . . . inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is ‘designed to prevent the police from badgering a defendant into waiving his previously asserted Miranda rights,’ Michigan v. Harvey, 494 U.S. 344, 350 [110 S. Ct. 1176, 108 L. Ed. 2d 293] (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675 [108 S. Ct. 2093, 100 L. Ed. 2d 704] (1988).” (Emphasis in original.) McNeil v. Wisconsin, supra.

As did McNeil, the defendant here seeks to prevail by combining his sixth amendment right to counsel and his Miranda-Edwards fifth amendment right to counsel. He argues that even though he expressly waived his Miranda right to counsel when he was interrogated concerning the Carr murder, his waiver was obtained as a result of an interrogation that was impermissibly initiated by the police. He contends, therefore, that any responses to that interrogation were inadmissible. He maintains that his prior assertion of his “offense-specific” sixth amendment right to counsel with respect to the unrelated theft of the automobile and the unrelated burglary was also an assertion of his “non-offense-specific” Miranda-Edwards right to counsel. The court in McNeil considered and rejected the same argument.

In McNeil, the court stated that “[t]he purpose of the Sixth Amendment counsel guarantee—and hence the purpose of invoking it—is to ‘protec[t] the unaided layman at critical confrontations’ with his ‘expert adversary,’ the government, after ‘the adverse positions of government and defendant have solidified’ with respect to a particular alleged crime. [United States v. Gouveia, supra,] 189. The purpose of the Miranda-Edwards guarantee, on the other hand—and hence the purpose of invoking it—is to protect a quite different interest: the suspect’s ‘desire to deal with the police only through counsel,’ [United States v. Edwards, supra,] 484. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation) and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the ‘adversarial relationship’ produced by a pending prosecution has yet arisen).” (Emphasis in original.)McNeil v. Wisconsin, supra, 2208-2209.

The court went on to determine that the result urged by McNeil was not compelled by Michigan v. Jackson, supra, or Edwards v. Arizona, supra. It concluded, rather, that the invocation by McNeil of his sixth amendment right to counsel at his arraignment did not trigger his Miranda right to counsel so as to prohibit subsequent police initiated interrogation concerning unrelated, uncharged crimes. McNeil v. Wisconsin, supra, 2209-10. McNeil controls this case.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious injury.”

       Shawn Henning, a coparticipant in the December 2 burglary, was tried separately and was also convicted of felony murder.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Although the defendant invoked both the federal constitution and article first, § 8 of the Connecticut constitution, “he has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised. We see no reason, on the facts of this case, independently to undertake such an analysis.” State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).

       The responses to questioning that are sought to be suppressed relate to a photograph of the bloodied body of the victim that was shown to the defendant. The police officers testified that the defendant visibly “spasmed” when shown the photograph and then asked if an area not shown in the photograph, but just beyond the frame, was the bathroom (which, in fact, it was). When questioned further as to his means of knowledge of the location of the bathroom, the defendant threatened to “punch in the face” of Sergeant Mucherino.
      The defendant also argues in his brief that certain statements he made to Sergeant Joseph Samoska of the New Milford police department in a telephone call from the Litchfield community correctional center on December 7,1985, should have been suppressed. The call was initiated by Shawn Henning who put the defendant on the line with Samoska. The record indicates, however, that no statements made by the defendant during that telephone conversation were ever admitted into evidence before the jury. Error cannot be predicated on the trial court’s failure to order the suppression of statements that were not ultimately used at trial.

       The defendant in his brief or in oral argument did not present any arguments to contest the voluntariness and validity of the waiver of his Miranda
        rights if, in fact, the police could constitutionally have initiated interrogation concerning the Carr murder.