text:
    Gregory Hughes et al. v. John S. Bemer et al.
    (13117)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued November 10, 1987
    decision released March 15, 1988

      Alexandra Davis, with whom were Wesley W. Horton and, on the brief, William R. Moller, for the appellants (plaintiffs).

      Lois Tanzer, for the appellees (defendants).
   Covello, J.

The issue presented in this negligence action is whether the plaintiffs may rely on the accidental failure of suit statute, General Statutes § 52-592, to reinstitute legal proceedings in which there was a prior judgment against them which was affirmed on appeal on the basis of the operation of Practice Book § 155. We conclude that they may not and find no error.

On October 19, 1984, the plaintiffs, Gregory Hughes and Michael A. Hughes, instituted a negligence action against these same defendants, John S. Bemer and Nancy L. Bemer, arising out of an automobile accident. The defendants moved to strike the complaint for its failure to state a cause of action. Practice Book § 152 (1). The court, Higgins, J., took up the questions presented and filed a memorandum of decision granting the motion to strike. The plaintiffs did not file a substitute pleading and upon motion, the court, Ripley, J., rendered judgment for the defendants. Practice Book § 157. The plaintiffs appealed to this court.

In Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), we observed that in connection with the motion to strike, the plaintiffs had failed to submit to the trial court the opposing memorandum of law required by Practice Book § 155. This being the case, the plaintiffs, as the adverse party, were deemed, by operation of the rules, “to have consented to the granting of the motion.” Practice Book § 155; see footnote 2, supra. We concluded that, under such circumstances, Practice Book § 155 inferentially required the court to grant the motion to strike. Hughes v. Bemer, supra, 402-403. We therefore found no error.

Within the one year period required by General Statutes § 52-592, the plaintiffs commenced the present action setting forth the identical allegations contained in their original complaint. They added, however, allegations that the earlier action had been “dismissed without a hearing on the merits” and that the Supreme Court had upheld the dismissal “without going to the merits.” Finally, they claimed that their action was “brought pursuant to Section 52-592 of the C.G.S.A. and in accordance with Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34 [474 A.2d 787 (1984)].”

The defendants moved to dismiss the new complaint, alleging that the court was “without jurisdiction over the subject matter in that General Statute Section 52-592 is inapplicable where the prior action was heard on the merits.” The court, Pickett, J., granted the motion. The plaintiffs have again appealed.

The plaintiffs concede that the judgment of the trial court in the first case was on the merits. “Since the decision on the . . . [motion to strike] determined that no right of action existed, the judgment [following a failure to plead over] was as final and complete as a judgment following a trial on the merits. Brennan v. Berlin Iron Bridge Co., 71 Conn. 479, 490, 42 A. 625 [1899].” Carvette v. Fidelity & Deposit Co., 152 Conn. 697, 699, 204 A.2d 409 (1964). The plaintiffs argue, however, that our subsequent action in affirming the appeal on the basis of the operation of Practice Book § 155 was not a decision on the merits and that, therefore, they are entitled to reinstitute the action pursuant to § 52-592. We disagree.

Section 52-592 does not authorize the reinitiation of all actions not “tried on . . . [their] merits,” only those that have failed for, among other reasons, “any matter of form.” An order that enters pursuant to Practice Book § 155 is not a matter of form. The failure to file the required memorandum of law operates as a consent to the granting of the motion to strike. The judgment that may thereafter enter, though not necessarily a determination on the merits, is nevertheless a final judgment whose issues are thereafter res judicata as between the parties. “A judgment by consent is in effect an admission by the parties that the decree is a just determination of their rights on the real facts of the case had they been found. It is ordinarily absolutely conclusive between the parties and cannot be appealed from or reviewed on a writ of error.” Shaw v. Spelke, 110 Conn. 208, 215, 147 A. 675 (1929). We conclude, therefore, that the matter here, although concededly not decided on its merits on appeal, has not failed “for any matter of form” within the meaning of § 52-592. “ ‘This statute [§ 52-592] was passed to avoid the hardships arising from an unbending enforcement of limitation statutes.’ ” Ross Realty Corporation v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972). We discern no intent to create an exception to the principles of res judicata that require, at some point, an end to litigation. Stocking v. Ives, 156 Conn. 70, 73, 238 A.2d 421 (1968).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] See. 52-592. accidental failure of suit; allowance of new action, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       Practice Book § 155 provides in relevant part: “If an adverse party objects to this motion he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve ... a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

       Practice Book § 152 provides in relevant part that “[w]henever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof.”

       Practice Book § 157 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       In Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984), we sustained the trial court’s rendering of a judgment of dismissal for failure to prosecute an action with reasonable diligence pursuant to Practice Book § 251. We stated: “We note that the plaintiff is not without remedy and, inter alia, may commence a new action pursuant to General Statutes § 52-592 . . . .” Id., 34 n.6.

       Since neither party has raised the question, we decline to address the propriety of a motion to dismiss the second complaint on jurisdictional grounds when the heart of the matter seems to be whether the earlier action was res judicata as to the present proceedings. See Practice Book § 164.


source: Caselaw Access Project

author: Hull, J. Callahan, J.,

license: Public Domain

text:
    Wendy Nolan et al. v. Alan Borkowski et al.
    (13236)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued January 13
    decision released March 15, 1988

      Herbert Watstein, with whom, on the brief, was John F. Warton, Jr., for the appellants (plaintiffs).

      Constance L. Epstein, for the appellees (defendants).
   Hull, J.

The dispositive issue in this case is whether the named plaintiff, Wendy Nolan, submitted proof of the individual defendants’ intent to injure her sufficient to resist the defendants’ motion for summary judgment on the ground of the exclusivity of the workers’ compensation benefits available to her for those injuries. We agree with the trial court that she failed to raise an issue of material fact as to such intent and therefore we find no error in the court’s granting of the motion for summary judgment.

Wendy Nolan brought this action against Alan Borkowski, Larry Przybylski, Raymond M. Pons and Pons Bakery, Inc., for injuries received while she was employed at Pons Bakery, Inc. The first count of the complaint alleged that the individual defendants had wilfully and maliciously disobeyed her doctor’s work restrictions which were known to them, thereby causing her injuries. The second count of the complaint claimed liability on the part of Pons Bakery, Inc., on the ground that the named individuals had been acting as its agents.

The defendants filed special defenses alleging that the plaintiff’s claims were barred by the exclusive remedy rule contained in General Statutes §§ 31-284 and 31-293a of the Workers’ Compensation Act. The defendants moved for summary judgment with accompanying affidavits. The plaintiff filed an opposition to this motion with affidavits and a supplemental opposition containing excerpts from a deposition of the plaintiff. The court granted the defendants’ motion for summary judgment on the first count on the ground that the plaintiff had failed to raise an issue of fact as to the defendants’ intent to injure her. As to the seeond count, the court granted summary judgment on the same basis and also because the plaintiff had failed to show that any of the defendants was the alter ego of the employer corporation. On appeal the plaintiff claims in effect that the court erred in failing to construe the affidavits and the deposition in the light most favorable to her and in finding that the plaintiff had not put the issue of the defendants’ intent to injure her sufficiently in dispute to defeat the defendants’ motion for summary judgment.

The plaintiff’s affidavit contained the following claimed material facts. She began work at Pons Bakery, Inc., in September, 1980, as a general laborer and was advancing well. During the spring of 1981 she began having pain in her back and her leg which resulted in disc removal surgery in January, 1982. She was allowed to return to work on February 28, 1982, with the following written instructions: no bending, no lifting over twenty pounds and no working over forty hours a week. These written restrictions were given to Borkowski and also communicated to Przybylski and Pons. Pons was vice-president and general manager of the bakery and Borkowski and Przybylski were co-supervisors or production managers. The individual defendants violated the doctor’s orders by requiring the plaintiff to do work that included bending, pulling one hundred pound racks, lifting one hundred pound sacks of flour, lifting loads of dough weighing up to fifty pounds, loading and unloading trucks and working over forty hours a week.

In June, 1982, after the plaintiff had made numerous requests for relief, she was given a supervisory job which was supposed to relieve her of most heavy physical duties. Borkowski and Przybylski never told her to refrain from doing certain tasks on the job and repeatedly required her to engage in heavy lifting and bending and to work more than forty hours per week.

Excerpts from the plaintiffs deposition before the court contained the following additional factual claims. In the deposition, the plaintiff stated that it was her opinion that Borkowski feared that the plaintiffs performance on the job would place his job in jeopardy. It was also her opinion that Borkowski ordered her to do certain work despite his knowledge of her work restrictions so that she would not be able to continue working. Further, she stated that she “guessed” that by getting rid of her, Borkowski and his friend Keith Briggs got their raises. By August, 1982, the plaintiff had to stop working because of pain and she underwent another operation for a ruptured disc.

The affidavit of the plaintiffs husband, Gary Nolan, declared that he had complained several times to Borkowski, Przybylski and Pons about how they were continuing to make the plaintiff do heavy lifting when they knew she should not. He also stated that when he complained to Borkowski because Borkowski had the plaintiff loading one hundred pound bags of flour into the mix, Borkowski said: “If your wife can’t do her job we have no place for her here.”

Borkowski’s affidavit (1) admitted that he was a manager of the bakery while the plaintiff was employed there, (2) denied that he had wilfully and/or maliciously disobeyed any doctor’s instructions regarding the plaintiff or wilfully and/or maliciously ordered or caused the plaintiff to do any heavy lifting, bending or to work over forty hours a week, (3) denied that there was any intent on his part to cause harm to the plaintiff, (4) stated that because of his awareness of the doctor’s instructions as to the plaintiff she was placed in a supervisory position in order to facilitate those instructions, and (5) stated that he had personally advised the plaintiff against doing any actions on the job that would be contrary to her doctor’s instructions. Przybylski’s affidavit was identical to Borkowski’s. Pons’ affidavit was also identical to the other two and contained an additional paragraph claiming that he had spoken with Gary Nolan asking him to attempt to ensure that the plaintiff not partake of any activities on the job contrary to her doctor’s instructions.

Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment ,as a matter of law. Practice Book § 384. The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The court must view the evidence in the light most favorable to the nonmovant. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).

In Connecticut the exclusive remedy for an employee injured in the course of employment is provided by the Workers’ Compensation Act and, with limited exceptions, suits against fellow employees are barred by General Statutes § 31-293a. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985); Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 471, 429 A.2d 943 (1980); Jacobs v. Crown, Inc., 7 Conn. App. 296, 298, 508 A.2d 812 (1986); Greene v. Metal Selling Corporation, 3 Conn. App. 40, 45, 484 A.2d 478 (1984). The plaintiff could withstand the defendants’ motion for summary judgment only if the opposing documentation filed by her raised a genuine issue as to the material fact whether any of the individual defendants wilfully or maliciously wronged her.

The issue in this case is whether the plaintiff’s affidavit and accompanying documentation meet the test of Mingachos v. CBS, Inc., supra, 102, in which this court held that the statutory exception of “wilful or malicious” conduct requires a showing of an actual intent to injure the plaintiff. “To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. Such a concept is nothing new to our jurisprudence. Once recently, drawing on our earlier cases, we said: ‘ “A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional.” Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). “A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.” Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975).’ Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985).” Id., 102-103.

Mingachos, however, is not on all fours with the present case. In that case the plaintiffs alleged wilful and malicious acts by the defendant employees. This court stated: “In this motion for summary judgment, affidavits were filed. Practice Book § 381. Each defendant employee gave his affidavit personally, specifically disavowing, inter alia, any ‘wilful intent’ to violate any [Occupational Safety and Health Administration Act (OSHA)] regulation and each indicating that on the day in question he had spent time in the same area where the accident involved occurred. On the other hand, the only affidavit submitted by the plaintiff was one signed by his attorney, which, after referring to certain attached, unverified, OSHA records, averred that ‘[t]hese exhibits indicate that the employer was aware of the need for ventilation where the explosion occurred; that the lack of ventilation presented a dangerous condition’; and that ‘[t]he employer did nothing to correct the need for ventilation until after the accident which killed the decedent.’ The record before us on this motion for summary judgment does not disclose that the plaintiff put into dispute the statements of the employees in their affidavit that each had no intent to injure the decedent. There was no genuine issue of material fact. Rather, with the exclusivity of the act, an issue of law emerged and summary judgment was properly granted on all counts of the amended complaint.” Id., 114. Although the plaintiff’s documentation in the instant case goes beyond that in Mingachos, we agree, nevertheless, with the defendants’ contention that Mingachos is ultimately dispositive of the present case.

The plaintiff claims that the requisite intent may be implied from the conduct and circumstances in this case, citing Mingachos v. CBS, Inc., supra, 102. She argues that the defendants’ conduct viewed in the light most favorable to the plaintiff easily rises to a level “ ‘ “where the known danger [of injury] ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a substantial certainty,”’” citing Mingachos v. CBS, Inc., supra, 103.

The plaintiff relies principally on the case of Batick v. Seymour, 186 Conn. 632, 443 A.2d 471 (1982). In Batick, the plaintiff in a negligence action alleged in the second count that the named defendant had fraudulently conveyed certain realty to his defendant wife. The trial court granted the defendants’ motion for summary judgment on that count. The named defendant driver’s affidavit stated that he never suspected that Batick would have any claim against him for the accident and that the conveyance of the real estate to his wife was the result of estate planning and a promise he had made to her before marriage. The affidavit of the named defendant’s attorney confirmed that he had been consulted by both the named defendant and his wife and that he had advised that the husband transfer a one half interest in the real estate as part of their estate plan. He also said that he knew of the accident at that time but did not anticipate that the plaintiff would bring suit. Id., 644.

The court stated that “[t]he plaintiff chose not to file an opposing affidavit, presumably because he had no personal knowledge of the mental state which influenced the defendant to quitclaim a one half interest in his house to his wife.” Id. The plaintiff filed a memorandum of law opposing the motion for summary judgment on the ground that the named defendant had failed to show “ ‘the non-existence of any genuine issue as to all material facts . . . .’ ” Id., 645.

In finding error in the trial court’s granting of the defendants’ motion for summary judgment, the court stated: “We first must consider the effect of the plaintiff’s failure to file an opposing affidavit in the summary judgment proceeding. Practice Book § 380 provides that‘[t]he adverse party . . . shall file opposing affidavits and other available documentary evidence.’ The plaintiff did attach copies of the quitclaim deed which effectuated the transfer and a deposition taken of the defendant in which he admitted that he and his wife were aware of the plaintiff’s serious injuries at the time the deed was executed. There is no. reason to suppose that the plaintiff had personal knowledge of any of the facts relating to the transfer. His proper course would have been to file an affidavit stating that he could not, ‘for reasons stated, present facts essential to justify his opposition . . . .’ Practice Book § 382. Dorazio v. M.B. Foster Electric Co., 157 Conn 226, 253 A.2d 22 (1968). Nevertheless, the court was not .entitled to assume the truth of the defendant’s declarations concerning his intentions in making the conveyance simply because of the absence of an affidavit contradicting them. It was clear from the documents filed by the plaintiff with his memorandum of law that there was a genuine dispute over the defendant’s intentions and that the plaintiff had done everything he could to present facts to controvert the defendant’s assertion that the transfer was unrelated to the accident. The inference which may ordinarily be drawn from the failure of a party to file an opposing affidavit is not warranted where the other party is the only person having knowledge of the particular facts involved. ‘Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ Practice Book § 381. In no way could the plaintiff have complied with these requirements of the rule in an affidavit pertaining to the defendant’s mental state at the time of the transfer. Although it would have been preferable for the plaintiff to have followed the procedure of explaining his predicament in accordance with Practice Book § 382, we do not regard his failure to do so as fatal, since his inability to file an opposing affidavit was obvious.” Batick v. Seymour, supra, 645-46.

The Batick court pointed out that “[t]here are situations . . . which do not lend themselves to summary disposition. ‘It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.’ ” (Citations omitted.) Id., 646-47. The court, relying on United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969), stated that the test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, supra, 647. Finally, the court concluded that the jurors would not have been compelled to believe the defendant’s declarations about his motive in executing the deed to his wife. Id.

In order to agree with the plaintiff’s claim that Batick controls this case, we would be required to read it as holding that a summary judgment may never be rendered in a case involving intent. We decline to hold that the Batick decision cast such a wide net. Batick decided that under the circumstances of that case the absence of a counteraffidavit did not justify the granting of a summary judgment. The defendant knew at the time of the deed that the plaintiff was paralyzed, his spinal cord being severed, and that the defendant’s automobile liability insurance policy was limited to $25,000. Id., 637. Further, “[t]he rule is well established that evidence is admissible that a person after the happening of an accident, or the occurrence of some other event which might render him liable, disposed of his property, on the ground that such evidence tends to show a consciousness of liability and a purpose to evade satisfaction of it. 29 Am. Jur. 2d, Evidence § 274, p. 322; see, e.g., Poston v. Gaddis, 372 So. 2d 1099, 1102 (Ala. 1979); Bush v. Jackson, 552 P.2d 509 (Colo. 1976); Portland Gas Light Co. v. Ruud, 242 Mass. 272, 136 N.E. 75 (1922); Cox v. Wright-Hennepin Cooperative Electric Assn., 281 Minn. 228, 161 N.W. 2d 294 (1968).” Batick v. Seymour, supra, 635.

It is quite another matter to allege that a fellow employee intended to injure the plaintiff by pushing her to work beyond her doctor’s restrictive orders for the reasons the plaintiff claims in this case. Here we are faced not with the narrow issue of the effect of the opponent of a summary judgment motion not filing an affidavit but with a case in which the documentation filed illuminates the issue involved and reveals the lack of a genuine issue of the material fact of intent when viewed in the circumstances of the case. “Since these allegations require the plaintiff to undertake the difficult challenge of providing evidence, in advance of trial, of the mental state of the defendant ... we are willing to take into account whatever relevant information the plaintiff was able to provide. See Batick v. Seymour, [supra, 645-46].” Conference Center Ltd. v. TRC, 189 Conn. 212, 217, 455 A.2d 857 (1983).

The claimed acts of all three individual defendants in and of themselves were neutral. They might just as reasonably have occurred in the normal process of production at the bakery. The plaintiff offered broader proof against Borkowski in the excerpts from her deposition contained in the record. An examination of her claims in the deposition clearly reveals the speculative basis of her testimony. She was asked by counsel why she thought that with Keith Briggs, a male, available to do work, Borkowski would nevertheless tell her to do it, knowing she was under work restrictions. She replied, “My opinion . . . he didn’t want to upset Keith. . . . [A]s long as I was there . . . . A1 [Borkowski] knew his job was in jeopardy because at any time I could step in and take over his job. . . .” When asked why Borkowski would want to give Briggs a raise she replied, “I guess by getting rid of me Keith and A1 got their raises.” When asked why Borkowski would care whether Briggs got a raise, she replied that they were best friends and that it was “possible” she was in Briggs’ way. Such speculative evidence above cannot serve as a basis for opposition to a motion for summary judgment. “Viewed as a whole and in context, the [plaintiffs] testimony is too speculative, too conjectural, to be evidence of [intent].” Acampora v. Asselin, 179 Conn. 425, 427, 426 A.2d 797 (1980); see Citizens National Bank v. Hubney, 182 Conn. 310, 312, 438 A.2d 430 (1980). “The bare assertions before the trial court would not have supported a judgment for the plaintiff and the summary judgment was, therefore, properly rendered.” Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983). The court did not err in granting the individual defendants’ motion for summary judgment.

As a result of the summary judgment for the three individual defendants the plaintiff’s second count against the employer Pons Bakery, Inc., based as it must be on the “wilful and malicious” conduct of one or more of the three named employees, must also fail. We therefore do not reach the question whether the plaintiff’s allegations and proffered proof are sufficient to satisfy the “alter ego” exception to the exclusivity of the plaintiff’s workers’ compensation remedy, as set forth in Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979).

There is no error.

In this opinion Peters, C. J., Shea and Covello, Js., concurred.

Callahan, J.,

dissenting. I respectfully take issue with the result reached by the majority because it is contrary to the principles regarding summary judgment and to the case law discussed in the majority’s opinion. It is clear from the opinion that the majority followed the erroneous logic of the trial court that resulted in an impermissible shift of the initial burden in a summary judgment motion to the nonmovant. In addition, the trial court abused its discretion by deciding a material issue of fact contrary to its limited function when deciding a motion for summary judgment.

The fundamental principles of summary judgment procedure, although noted in the decisions of the trial court and the majority, were ignored in the analyses of each court. It is the movant, here the defendants, that bears the initial, heavy burden of demonstrating by way of affidavits and other documentary proof, not only his entitlement to judgment as a matter of law, but also the nonexistence of a genuine issue of material fact. See Practice Book §§ 380, 384; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983). It is only after the movant has met this burden, that the opponent bears the burden of presenting facts which contradict those offered by the movant. Citizens National Bank v. Hubney, 182 Conn. 310, 311, 438 A.2d 430 (1980).

The test for granting a motion for summary judgment is the same as in a directed verdict, which is viewing the evidence and the inferences therefrom “most favorably to the nonmovant, the trier of fact could not reach any other conclusion than that embodied in the verdict as directed.” (Emphasis added.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969); see also DHR Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Most important, in ruling on a motion for summary judgment the trial court’s limited function is not to decide issues of material fact, but rather only to determine whether any exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982); Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

After noting the general boiler plate language regarding summary judgment procedure, the trial court begins its analysis by indicating that the plaintiff employee’s right to pursue common law remedies was limited by the adoption of the Workers’ Compensation Act, and to bypass the exclusivity provisions of the act the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. The trial court then makes reference to the affidavits and deposition transcript submitted by the plaintiff and acknowledges that these documents state conduct on the part of the defendants that show an intent to cause the injury which resulted. Then without indicating whether the defendants met either of their two burdens and without any analysis or legal reasoning, the trial court baldly concludes that the plaintiff failed to put the defendants’ intent into dispute. It is clear that the trial court, in recognition of the limited scope of the “wilful or malicious” exception to the exclusivity provision of the Workers’ Compensation Act under General Statutes § 31-293a, and in recognition of the plaintiff’s difficult burden of proof at trial, decided from the documents submitted by the plaintiff that she failed to prove that the defendants’ conduct evidenced the requisite intent sufficient to come within the exception. The trial court thus erroneously decided the merits of the plaintiff’s action rather than simply determining that no genuine issue of material fact existed. While the plaintiff may not be able to prevail at trial by a preponderance of the evidence, the affidavits she submitted along with her deposition transcript clearly contradict and put into issue the statements contained in the affidavits submitted by the defendants. Under such circumstances the trial court erred in granting summary judgment for the defendants. See Mingachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368 (1985).

I also dissent from the conclusion of the majority and the trial court because of the well established principle of law that ordinarily summary judgment procedure is particularly inappropriate where, as here, the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Batick v. Seymour, supra, 646-47; United Oil Co. v. Urban Redevelopment Commission, supra, 376; see White Motor Co. v. United States, 372 U.S. 253, 259, 83 S. Ct. 696, 9 L. Ed. 2d 738 (1963); Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 472-73, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). Intent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 216-17, 477 A.2d 988 (1984); State v. Just, 185 Conn. 339, 355, 441 A.2d 98 (1981); Munn v. Scalera, 181 Conn. 527, 530-31, 436 A.2d 18 (1980); State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 18 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); Bergen v. Bergen, 177 Conn. 53, 57, 411 A.2d 22 (1979); Heffeman v. New Britain Bank & Trust Co., 175 Conn. 8, 12, 392 A.2d 481 (1978).

The case at hand undoubtedly raises an issue of material fact regarding the defendants’ intent to cause the injury to the plaintiff which must be inferred from the acts and conduct of the defendants coupled with their knowledge of the written orders of the plaintiff’s doctor. The documents submitted by the plaintiff set forth specific acts of the defendants to demonstrate the defendants’ intent. As the majority states, “ ‘[a] wilful or malicious injury is one caused by design. . . . [I]ts characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.’ [Citation omitted.] The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.” Given the fact that the affidavits of the plaintiff directly contradict those of the defendants on this score, one could not reasonably conclude that the conflicting affidavits did not at least put the statements contained therein in dispute. Consequently, a genuine issue of material fact existed which the trial court resolved in favor of the defendants contrary to its limited function in deciding motions for summary judgment.

Additionally, in order to grant summary judgment here, the trial court must have been able to conclude that a trier of fact could not have reached any other conclusion. The conflicting affidavits alone regarding the defendants’ intent mandates otherwise. Part of the majority’s reasoning also indicates to the contrary. In response to the plaintiff’s claim that the acts of the defendants were intentionally designed to cause the injuries to her, the majority states that the acts of the defendants “might just as reasonably have occurred in the normal process of production at the bakery.” (Emphasis added.) Clearly this indicates that it was reasonable to conclude either way.

Further, the only way in which the trial court or the majority could have concluded that the plaintiff failed to place the defendants’ intent into issue was to discredit the plaintiff’s affidavits and to credit the defendants.’ Absent obvious misstatements within the affidavits, neither court should have judged the credibility of the respective affiants for “ ‘[i]t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.’ Poller v. Columbia Broadcasting Systems, Inc., supra, 473; Fortner Enterprises, Inc. v. United States Steel Corporation, 394 U.S. 495, 500, 89 S. Ct. 1252, 22 L. Ed. 2d 495 [1969].” United Oil Co. v. Urban Development Commission, supra, 376. The majority clearly judged the credibility of the plaintiff because the majority dispelled as speculative her opinions regarding the defendants’ possible motives for intending to cause her injuries. The true issue here is whether the acts and conduct of the defendants evidence the necessary intent and motive to cause the injuries that resulted to the plaintiff as required by § 31-293a. This court has recognized the inappropriateness of summary judgment with regard to matters, such as intent and motive, that are clearly within the exclusive knowledge of the defendants. Batick v. Seymour, supra. In Batick this court reversed the entry of a summary judgment for a defendant where the plaintiff submitted no affidavits in opposition to the motion because of the virtual impossibility of demonstrating the intent or motives of another in an affidavit.

Accordingly, I would reverse the trial court and order ‘the matter remanded for a trial on the merits.

       The named plaintiff’s husband Gary Nolan sought damages for loss of consortium. The trial court ruled that this claim failed with the failure of the wife’s cause of action. Gary Nolan’s claim is not involved in this appeal and we will in this opinion refer only to the plaintiff Wendy Nolan.

       General Statutes § 31-284 provides in pertinent part: “BASIC RIGHTS AND LIABILITIES. CIVIL ACTION TO ENJOIN NONCOMPLYING EMPLOYER FROM entering employment contracts, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment. ... All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . .”

       General Statutes § 31-293a provides in pertinent part: “NO RIGHT against fellow employee; exception. If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1.”


author: Callahan, J.

text:
    State of Connecticut v. Clinton Milner
    (12980)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.

      Argued November 3, 1987
    decision released March 15, 1988

      Carmine Giuliano, with whom was David A. Dee, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were Lawrence J. Daly and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The defendant, Clinton Milner, was charged in an information with having murdered twenty-three year old Susan Kennedy on August 4, 1984, in violation of General Statutes § 53a-54a. On October 19, 1985, a jury found the defendant guilty as charged and he was sentenced by the trial court to a term of life imprisonment. He now appeals from the judgment of conviction.

The jury could reasonably have found the following facts. At approximately 5 a.m., on August 4, 1984, in response to loud screams emanating from a parking lot behind 87/89 Sumner Street in Hartford, approximately ten people rushed to the area and found Susan Kennedy naked, kneeling in a puddle of blood and holding her stomach. Her clothes and belongings were in a pile approximately twenty-five feet from the spot where she was kneeling. Kennedy was rushed to St. Francis Hospital and Medical Center where she was pronounced dead on arrival. An autopsy revealed that her death resulted from twelve stab wounds to the chest and abdomen which penetrated multiple organs.

Numerous witnesses placed the defendant at the scene of the crime or in its immediate vicinity while others observed him running away from Sumner Street. In addition, there was testimony indicating that he had been carrying a knife in the hour immediately preceding Kennedy’s murder.

Subsequent to the murder, while the defendant was being held at the Hartford Correctional Center, he told a fellow inmate that he had grabbed the victim, dragged her to the back of an alley and put a knife to her chest. Additionally, he told another inmate that he had a chance of beating the case because of the lack of evidence. He indicated that, while the knife admitted into evidence was Ms, the state could not prove it, nor could they find the clothes he wore the morning of the murder.

On appeal, the defendant claims that the trial court erred in: (1) excluding from evidence the fact that Robert Torres, a witness and originally a suspect, had been arrested for giving false statements to the police; (2) admitting into evidence as a “business record” under General Statutes § 52-180 the hearsay statement of an anonymous phone caller contained within a police report; (3) restricting the scope of the cross-examination of a state’s witness, Yvette Gonzalez; (4) denying the defendant’s motion to suppress the pretrial photographic identification of the defendant by a state’s witness, Paul Cooper; and (5) ruling that the “open file policy” of the state’s attorney’s office did not result in a deprivation of his sixth amendment right to effective assistance of counsel or his right to due process under the fourteenth amendment. Additional facts relevant to these issues will be set forth where necessary.

I

During a search of the victim’s home, the police discovered two sets of directions to Robert Torres’ apartment located at 79 Sumner Street. As a result, a search warrant was issued for Torres’ apartment which the police executed that same day. Although Torres was not present during the search of Ms home, he did appear at Hartford police headquarters two days later on August 6, 1984, and gave a five page written statement. On August 8, 1984, Torres returned to the police station to correct a number of misstatements made in his earlier written statement. The police arrested Torres for providing them with a false statement. Subsequently, Torres was placed on accelerated rehabilitation pursuant to General Statutes § 54-56e.

At trial, defense counsel twice attempted to introduce into evidence the fact of Torres’ arrest. Each time the court sustained the state’s objection to the defendant’s questions and specifically directed the jury to disregard the questions. The defendant argues that evidence of Torres’ arrest was admissible as: (a) “evidence tending to show that another committed the crime [in question]”; and (b) “evidence reflecting consciousness of guilt.” Consequently, the defendant argues that “the jury was not provided with all the necessary facts for it to render an accurate verdict.” We disagree.

A

Recently, in State v. Echols, 203 Conn. 385, 392-93, 524 A.2d 1143 (1987), we had occasion to review fully the applicable principles of law governing the admissibility of evidence which tends to show that a third party may have committed the crime with which a defendant has been charged. We held that “a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . .” Id., 392. Other than the fact that Kennedy was apparently on her way to visit Torres when she was killed, there was not the slightest bit of evidence that connected Torres with her murder. Under the circumstances the trial court did not err in excluding from evidence the fact of Torres’ arrest for providing a false statement.

“The presentation and admissibility of such evidence is governed by the rules of relevancy. ... We have often stated that ‘[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. . . ’ ” (Citations omitted.) Id., 393. A trial court’s ruling on the relevancy of such evidence will be reversed only if the court has abused its discretion or an injustice appears to have been done. Id.

While evidence of Torres’ arrest on the charge of providing a false statement to the police may have had some bearing on his credibility as a witness, the fact of arrest was not relevant to bolster the defendant’s unsupported allegation that Torres committed the murder with which the defendant was charged. Furthermore, this court has held that evidence of an arrest in the absence of a conviction is generally not admissible even to attack credibility. State v. Moynahan, 164 Conn. 560, 600, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); see also 20 A.L.R.2d 1421, 1425, § 3.

Moreover, the trial court placed no restrictions on the defendant’s cross-examination of Torres as it related to the inaccuracies contained in his August 6, 1984 statement to the police. Defense counsel fully explored each and every misstatement by Torres, and, in fact, Torres admitted numerous times during his testimony that he had lied to the police on August 6, 1984. The jury therefore was provided with a sufficient foundation on which to judge his credibility or lack thereof. Under these circumstances, we find that the trial court did not abuse its discretion in excluding from evidence the fact of Torres’ arrest.

B

The defendant also claims that evidence of Torres’ arrest was admissible as “evidence reflecting a consciousness of guilt.” We disagree.

This argument is contrary to our holding above for it assumes that Torres’ arrest, in and of itself, was relevant to the defendant’s claim that Torres had committed the murder in question. It was not. In addition, the defendant’s argument misconstrues the rule of evidence relating to the admissibility of false statements that reflect a consciousness of guilt. We have held that misstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt. This rule has only been applied, however, where the declarant of the misstatement has been the defendant. See State v. Thomas, 205 Conn. 279, 287, 533 A.2d 553 (1987); State v. Banks, 194 Conn. 617, 621-22, 484 A.2d 444 (1984); State v. Maturo, 188 Conn. 591, 597-98, 452 A.2d 642 (1982); State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); State v. Moynahan, supra, 595-96. It has not been utilized to demonstrate a consciousness of guilt on the part of a third party who has not been shown to have any connection with the crime. Thus, we find no error in the trial court’s having excluded the fact of Torres’ arrest from evidence.

II

The defendant next claims that the trial court erred in admitting into evidence the hearsay statement of an anonymous phone caller, which was contained in the police report of Detective Terry Blair and admitted as a “business record” under General Statutes § 52-180. Specifically, the defendant argues that the record was not admissible because there had been no evidence presented to indicate that the caller had a business duty to report the information to the Hartford police department.

In response to the admission of a copy of an August 4 police report of Detective Ocell Blocker, the state recalled Blair to testify solely for the purpose of admitting his August 7 one page report. Over defense counsel’s objections, the trial court admitted the report into evidence as a “business record” under § 52-180 and the following portion was read to the jury: “Date of incident, 8-07-84; time of incident 0830; date reported, 8-07-84; time reported, 0830; number 50 Jennings Road, Hartford, CT., case number 84-32562.

“On this date and time, this detective received a phone call from someone, anonymous, stating that on Saturday morning he heard a woman yelling, ‘Help me, Robert, help me.’ This detective then tried to talk to the caller who stated thank you and hung up.”

The defendant argues that the trial court erred in admitting the “Help me, Robert, help me” portion of the detective’s report because it was hearsay and did not fall within the' business record exception because the state failed to show that the caller had a business duty to report the information to the police. The state conceded that the trial court erred in admitting this portion of Blair’s report. Nevertheless, the state argues that the defendant has failed to demonstrate that the court’s error resulted in any prejudice. The state claims, therefore, that the defendant has not met his burden and, consequently, has failed to provide any ground for reversing his conviction. We agree.

“To be admissible under the business record exception of General Statutes § 52-180, ‘the business record must be one based upon the entrant’s own observations or upon information transmitted to him by an observer whose business duty it was to transmit it to him.’ D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). Statements obtained from volunteers are not admissible though included in a business record because it is the duty to report in a business context which provides the reliability to justify this hearsay exception. Id. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).” State v. Sharpe, 195 Conn. 651, 663-64, 491 A.2d 345 (1985).

Under the circumstances of this case, the trial court erred in admitting the hearsay statements contained in Blair’s report because the identity of the caller was unknown, thus preventing a determination as to whether it was the caller’s business duty to report such information. Where, however, an evidentiary ruling has been found to be erroneous but the error does not implicate a constitutional right of the defendant, the burden rests upon the defendant to establish the harmfulness of the error. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980).

At trial, defense counsel stated several reasons why Blair’s report did not qualify as a business record but failed to note any harm or prejudice that might have resulted from its admission. In fact, defense counsel’s arguments indicate the contrary. In opposition to the admission of the report he argued that, in light of the evidence the state had already presented, the admission of the report was not necessary for a resolution of the case. This clearly demonstrates the relative lack of importance that the statement in Blair’s report had in the defendant’s eyes. It must also be noted that the defendant failed to brief the issue of prejudice or harm, nor did he point to any evidence from which one might reasonably infer that the defendant was harmed by the court’s ruling. We note that the trial lasted approximately seven and one-half weeks and generated almost 3500 pages of trial transcripts. Approximately eighty exhibits were received into evidence and almost sixty more were marked for identification and referred to during the trial. It is difficult to perceive that the admission of this one page report, which contained an objectionable five word phrase, prejudiced the defendant as claimed.

Additionally, Blair’s report indicates nothing more than that an unknown person may have heard a woman “yelling” at some time on a Saturday morning, presumably the morning of August 4, 1984, “Help me, Robert, help me.” The inferences that can be drawn from the report are numerous, particularly in light of the various accounts of what the victim allegedly screamed at 5 o’clock that morning. Detective Blocker’s report, which the defendant had admitted as an exhibit, indicates that an anonymous male caller heard a woman scream, “Robert, no, no, Robert, no no.” Blocker also testified that other phone calls were received from people who stated they heard the victim scream, “no, robber, no, robber.” Numerous other witnesses testified they heard screams only and no specific words. Another witness testified that she heard a woman cry, “Help, help, police, police, robber, robber.” Yet another witness stated that she heard, “Help me, somebody help me.” In view of the confusion as to what was said, it is unlikely that the jury would have placed any weight on what the anonymous caller reported to Blair.

Accordingly, we conclude that the erroneous admission of Blair’s one page report was harmless error.

Ill

The defendant next claims that the trial court impermissibly restricted the scope of his cross-examination of Yvette Gonzalez in violation of his fight to confrontation guaranteed by the sixth amendment to the United States constitution. Specifically, the defendant contends that he should have been able to probe more deeply into the circumstances of Gonzalez’ pretrial photographic identification in order to determine the basis and reliability of her in-court identification of the defendant.

During the trial, the defendant moved to suppress a photographic identification that had been made by Gonzalez prior to trial. Gonzalez’ testimony revealed that at approximately 9 p.m., on August 1, 1984, she was walking on Asylum Avenue in Hartford when she was approached by a black male whom she described as being approximately six feet two inches tall with a slim build. The assailant pointed a “double o’ seven” knife at her neck, asked her for her money and then told her to take her clothes off. Thereafter, a third person appeared and the assailant fled. Gonzalez did not report the incident until August 7, 1984, when she was approached on the corner of Collins Street and Sumner Street by two police officers who had been canvassing the neighborhood in search of information regarding the Kennedy murder. After Gonzalez described the August 1, 1984 incident, the police asked her to get into the police car. There they gave Gonzalez a stack of eight photographs from which she identified a picture of the defendant as that of her assailant. Gonzalez did not sign the back of the defendant’s picture until reaching the police station after having been driven around in the police car for some four hours.

At the suppression hearing the defendant argued that the photographic identification was unnecessarily suggestive and unreliable. The trial court found to the contrary and denied the motion to suppress. During Gonzalez’ testimony at trial she made an in-court identification of the defendant as her assailant. On cross-examination, defense counsel attempted to question her regarding the circumstances surrounding her photographic identification made in the police cruiser. Upon the state’s objection, the trial court ruled as follows: “You may inquire whether or not that [in-court] identification may have been [a]ffected at all by her being presented with photographs so that she is now identifying the person shown in the photograph rather than a present recollection of the identity of the individual that night. To that extent I will let you go into the question of photographs.” The defendant argues that such a restriction violated his sixth amendment right to confrontation.

“The Confrontation Clause of the Sixth Amendment [to the United States constitution] guarantees the right of an accused in a criminal prosecution ‘to be confronted with witnesses against him.’ . . . ‘ “[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” ’ ” (Emphasis omitted.) Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). While “‘“[c]ross-examination is the principal means by which the believability of a witness and the truth [or reliability] of his testimony are tested[;] Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982)[;]’” State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985); a defendant’s right to cross-examination “is not absolute and is subject to reasonable limitation by the [trial] court.” State v. Thompson, 191 Conn. 146, 147-48, 463 A.2d 611 (1983); see also State v. Jackson, 198 Conn. 314, 318-19, 502 A.2d 865 (1986); State v. Vitale, supra, 401. “The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge. This discretion comes into play, however, only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. State v. Castro, 196 Conn. 421, 424, 493 A.2d 223 (1985); State v. Gaynor, 182 Conn. 501, 508, 435 A.2d 1022 (1980). The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness. United States v. Vasilios, 598 F.2d 387, 389 (5th Cir. 1979), cert. denied, 444 U.S. 967, 100 S. Ct. 456, 62 L. Ed. 2d 380 (1979), reh. denied, 444 U.S. 1049, 100 S. Ct. 742, 62 L. Ed. 2d 737 (1980), and cert. denied sub nom. Alexander v. United States, 444 U.S. 932, 100 S. Ct. 277, 62 L. Ed. 2d 190 (1979); State v. Castro, supra, 425.” State v. Vitale, supra, 402; see also State v. Weidenhof, 205 Conn. 262, 270, 533 A.2d 545 (1987); State v. Milum, supra, 609; State v. Shindell, 195 Conn. 128, 140, 486 A.2d 637 (1985); State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

In applying these principles to the case at hand, we conclude that the trial court violated the defendant’s right to confrontation by unreasonably restricting the scope of his cross-examination of Gonzalez.

On direct examination at trial, Gonzalez testified that she was “very positive” that the defendant was the person who, on August 1, had held a knife to her throat and told her to take off her clothes and to give him her money. No reference was made to the pretrial photographic identification of the defendant. On cross-examination, defense counsel gave Gonzalez the eight photographs used in her pretrial identification and began to question her about the circumstances under which the identification had been made. When the state objected, defense counsel argued that the circumstances surrounding the pretrial photographic identification were relevant to Gonzalez’ credibility, to her identification, and to the reliability of her in-court identification. The trial court sustained the objection in part but allowed defense counsel to inquire as to whether the pretrial identification in any way affected Gonzalez’ in-court identification.

Thereafter, the trial court allowed Gonzalez to testify on cross-examination that she was contacted on the corner of Collins Street and Sumner Street by the police on August 7,1984, for purposes of viewing a photographic array. Most significantly, she testified that the photographs helped her identify the defendant in court. The trial court refused to allow defense counsel to cross-examine Gonzalez with regard to: (1) the reasons) for the four hour delay between her identifying the photograph and her signing it; (2) whether the police had asked her to give a description of her assailant before or after viewing the photographs; (3) whether she was unable to give a facial description of the defendant until after viewing the photographs; (4) the reason(s) for not having reported the incident on her own prior to being approached by the police on August 7, 1984; and (5) why she had returned to the same street at 9 p.m. six days after her assault if she had been scared. The trial court also ruled that, because the issues regarding the suggestibility of the pretrial photographic identification and police coercion or duress in connection with it had been fully explored during the suppression hearing, defense counsel should not inquire into those areas.

The factors relevant to determining the reliability of an identification include, but are not limited to, the following: the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of her prior description of the criminal; the level of certainty demonstrated at the identification; the time between the crime and the identification; see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Mayette, 204 Conn. 571, 583, 529 A.2d 673 (1987); and the degree of contact or number of confrontations the witness had with the defendant prior to trial. See State v. Gordon, 185 Conn. 402, 418-19, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).

Accordingly, where, as here, an in-court identification of a defendant was allegedly aided or influenced by a pretrial photographic array, a defendant should be given sufficient latitude on cross-examination to expose to the jury the facts from which the jurors, as the sole triers of the facts, can appropriately weigh the reliability of the in-court identification. This was not permitted here. The trial court precluded defense counsel from inquiring into whether Gonzalez was ever asked by the police to give a description of the defendant prior to the pretrial photographic identification or whether she had been unable to describe the facial features of the defendant prior to the photographic identification. Defense counsel was also precluded from seeking explanations from Gonzalez as to the reasons for the delay in signing the photograph and her failure to report the August 1, 1984 incident on her own to the police. Additionally, the court prohibited any cross-examination concerning the police procedures used that may have indicated any degree of coercion in obtaining the photographic identification.

While we agree with the trial court that the defendant should not be able to reargue the motion to suppress before the jury, the reliability of an in-court identification based at least in part on photographs supplied to the witness during a pretrial identification procedure is a matter for the jury to decide and is distinct from the issue of the admissibility of the out-of-court photographic identification itself. Accordingly, we hold that the restrictions placed on the defendant’s cross-examination of Gonzalez did not comport with constitutional standards and thus violated the defendant’s right to confrontation guaranteed by the sixth amendment.

This does not conclude our inquiry, however, because the erroneous refusal to permit proper cross-examination of the state’s witness, while violative of the defendant’s sixth and fourteenth amendment guarantees of confrontation, does not require an automatic reversal. United States v. Christian, 786 F.2d 203, 212-13 (6th Cir. 1986). “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Cf. [Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969)]; Schneble v. Florida, 405 U.S. [427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972)].” Delaware v. Van Arsdall, supra, 684; State v. Ortiz, 198 Conn. 220, 224-26, 502 A.2d 400 (1985). For identification cases see United States v. Owens, 789 F.2d 750, 762 (9th Cir. 1986), cert. granted, 479 U.S. 1084, 107 S. Ct. 1284, 94 L. Ed. 2d 143 (1987); United States v. Jarrad, 754 F.2d 1451, 1456-57 (9th Cir. 1985), cert. denied sub nom. McManamy v. United States, 474 U.S. 830, 106 S. Ct. 96, 88 L. Ed. 2d 78 (1985); Stewart v. Cowan, 528 F.2d 79, 82 (6th Cir. 1976); Gaines v. Thieret, 665 F. Sup. 1342, 1351-53 (N.D. Ill. 1987); Burns v. Clusen, 599 F. Sup. 1438, 1448-50 (E.D. Wis. 1984), aff’d, 798 F.2d 931 (7th Cir. 1986).

Upon a review of the extensive record before this court we conclude that the restrictions placed on the cross-examination of Gonzalez, while error, were harmless beyond a reasonable doubt. Gonzalez’ identification testimony related to an assault on August 1, 1984. Although somewhat factually similar, it was nevertheless a separate and distinct incident from the Kennedy murder. Gonzalez’ trial testimony, therefore, did not directly implicate the defendant in the Kennedy murder which did not occur until three days after the assault on Gonzalez. Additionally, defense counsel was able to elicit from Gonzalez on cross-examination that: (1) she did not report the incident until six days after it had occurred and then only after she had been approached by the police; (2) she had not viewed a lineup; (3) she was afraid of the defendant; and (4) she had seen the photographs a number of times prior to testifying. She also admitted that the photographs helped her to identify the defendant in court. Although these facts are not as complete as they might have been if the court had not restricted cross-examination, they did provide a fair basis for the jury to draw reasonable inferences regarding the reliability or lack thereof of Gonzalez’ in-court identification.

Even if we assume that the jury credited the identification as reliable and relevant, it was, nevertheless, cumulative in light of the evidence that directly implicated the defendant in the Kennedy murder. Susie Jackson identified the defendant in a pretrial photographic array and then identified him in court as the man who had propositioned her at approximately 4:15 a.m. on August 4, 1984, at the corner of Garden and Collins streets. She specifically described the defendant as wearing a red tee shirt and fitted blue jeans that had a nice crease in them. She also testified that when the defendant turned to walk away from her she saw “what looked to have been a knife in his right-hand back pocket.” Paul Cooper, who had been standing across the street and specifically observing the defendant with Jackson, identified the defendant in court and in a pretrial photographic array as the one who resembled the man who spoke with Jackson. Cooper described the defendant as being a young black male approximately six feet one inch to six feet two inches tall who was wearing a red tee shirt and blue trousers.

Laurie Philbrick testified that she had been approached at about 4:30 the same morning by a tall, thin black man while she had been sitting on the front steps of her apartment building at 73 Sumner Street. The man, whom she had identified as the defendant from a photographic array, approached her from the direction of Collins Street and offered her money to engage in oral sex with him. She took him up to her apartment and at one point, the defendant reached into one of his rear pockets and said something that caused Philbrick to believe that he was going to hurt her. She screamed for her boyfriend who came running in from the kitchen. At that moment the defendant fled the apartment and exited the building by a door that led to the rear parking lot. Philbrick described the defendant as being six feet three inches tall, not well shaven, and as having a short afro. She also described the defendant as having worn a red short sleeved tee shirt with blue jeans. Philbrick also indicated that the defendant appeared to be very nervous and she thought that he “was looking to hurt somebody seriously.” Thereafter, she testified that approximately five minutes after the defendant had fled from her apartment she and her boyfriend heard loud screams outside.

William Campbell was on Collins Street that morning and had heard the screams coming from the vicinity of the Sumner Street and Collins Street intersection. He ran in the direction of the screams and upon arriving at the parking lot behind 87/89 Sumner Street he observed a man standing behind a naked woman who was kneeling on the ground holding her stomach. Campbell described the man as being a six feet one inch tall black male who was wearing a short sleeved red or maroon tee shirt and jean pants. He also testified that the man ran away in the direction of Asylum Street.

Barbara Floyd then testified that, upon hearing the screams, she proceeded down a driveway toward the parking lot when a man in a red tee shirt ran by her. She described this man as being black and about six feet tall. When she arrived at the parking lot and saw the victim, she then ran to the street, stopped Henry Ellis who was driving by on Sumner Street and informed him that a girl had been stabbed. Ellis gave chase in his car up Collins Street and then Garden Street and followed the assailant through a parking lot where the assailant entered a door on the back of a building on Asylum Street with a key. Ellis described the man he had chased as having short hair and wearing dungarees and a red short sleeved tee shirt. Ellis identified the defendant in a pretrial photographic array and in court as the man he had chased. Additionally, he testified that he had known the defendant previously because he had gambled with him on a number of occasions.

The defendant was also seen and identified by Carolyn Hatchett. Hatchett testified that shortly after the screams the defendant ran past her on Huntington Street. She described the defendant as wearing a red short sleeved tee shirt,, blue jeans and “carrying a shiny object in his hand.” The photograph from which she identified the defendant was admitted into evidence.

In addition to the identification testimony above, three workers of the Hartford Insurance Company were on a rooftop nearby when they heard the screams at approximately 5 a.m. Each testified that, after they heard the screams, they saw a black or hispanic man run onto Sumner Street from a driveway between two buildings toward Collins Street and then toward Garden Street. Two of the three described the man as being over six feet tall, slender, in his mid-twenties, medium to dark complexion, and was wearing jeans and a “cranberry” colored tee shirt.

Accordingly, we find that, in light of the evidence, the restrictions placed upon the cross-examination of Gonzalez by the trial court, while violative of the defendant’s sixth amendment right to confrontation, nevertheless, were harmless beyond a reasonable doubt.

IV

The defendant next claims that the trial court erred in denying his motion to suppress Cooper’s pretrial photographic identification. Specifically, the defendant argues that the police procedures used to obtain the identification were unnecessarily suggestive and that the identification itself was inherently unreliable. Consequently, he argues that the admission of Cooper’s pretrial identification testimony violated his right to due process.

A review of the transcripts concerning this issue reveal the following facts. At approximately 4:15 in the morning, on August 4, 1984, Cooper left Susie Jackson on the corner of Collins and Garden streets and crossed the street. At that point, he saw a six foot one inch to six foot two inch tall black man wearing a red tee shirt and blue trousers walking behind Jackson, and Cooper stopped to observe. He saw the two engage in conversation for a few minutes, after which the man departed.

On August 8, 1984, two plainclothes police officers went to Jackson’s house and asked her and Cooper to come down to the police car. There Cooper viewed approximately six photographs from which he chose two as looking like the man he had seen. He was not asked to sign either of them. Subsequently, on August 10, 1984, Jackson and Cooper were picked up by two Hartford police detectives and brought to police headquarters. There they were taken into separate rooms where they gave statements to the police and again viewed photographic arrays. Cooper was given a stack of seven photographs from which he chose the defendant’s photograph again as only looking like or resembling the man who had conversed with Jackson. After so identifying the defendant’s photograph, Cooper signed the back of it.

The defendant contends that Cooper’s August 10, 1984 photographic identification of the defendant was unnecessarily suggestive on two grounds. First, that it was presumptively suggestive because the defendant’s picture recurred in the August 8, 1984 and the August 10, 1984 arrays that were shown to Cooper. Second, that the failure of the police to sequester the potential witnesses from each other while they were waiting to be questioned on August 10, 1984, at police headquarters tainted Cooper’s subsequent identification.

At the outset we note that “ ‘[i]n order to suppress evidence of an identification derived from allegedly unconstitutional procedures, a criminal defendant bears the burden of proving that the identification procedures were unnecessarily suggestive, and, if so, that the resulting identification was unreliable in the totality of the circumstances.’ State v. Williams, 203 Conn. 159, 173-74, 523 A.2d 1284 (1987); State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987). This burden requires the defendant to show that the challenged procedure ‘ “give[s] rise to a very substantial likelihood of irreparable misidentifieation.” ’ State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984); State v. Ramsundar, 204 Conn. 4, 11, 526 A.2d 1311 (1987).” State v. Boscarino, 204 Conn. 714, 725-26, 529 A.2d 1260 (1987); see also State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). Under the facts of this case the defendant has failed to demonstrate that the pretrial identification procedures employed by the police were unnecessarily suggestive. It must be kept in mind that this is not a situation where a subsequent photographic array resulted in either an identification being made where one had not previously been made, or a subsequent identification was made with a higher degree of certainty because of the recurrence.

This court has consistently held that, “ ‘[a]lthough “we have recognized that pictorial recurrence can be suggestive in that it increases the risk of misidentification”; State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983); State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981); see Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); the recurrent use of a defendant’s photograph in successive arrays is not presumptively suggestive.’ State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986); United States v. Bowie, 515 F.2d 3, 7-8 (7th Cir. 1975); State v. Evans, 200 Conn. 350, 354-55, 511 A.2d 1006 (1986); State v. Hinton, [196 Conn. 289, 294, 493 A.2d 836 (1985)].” State v.Mayette, 204 Conn. 571, 581-82, 529 A.2d 673 (1987); see also State v. Williams, supra, 175-76. “Recurring photographs taint an identification procedure only when, in the context of the entire array, the recurrence unnecessarily emphasizes the defendant’s photograph.” State v. Williams, supra.

The defendant has failed to point to any place in the record that indicates that the procedures utilized on either August 8 or August 10 unnecessarily emphasized the defendant’s photograph or were, in any way, inherently suggestive. In fact, the record indicates the contrary. Cooper testified at the suppression hearing and at trial that the police did not highlight a specific picture in any way nor did they give him specific instructions when viewing the photographs. Detective Wolf testified that he had merely asked Cooper to look at all the photographs and that he did not make any gestures or suggestions regarding any of them. Cooper was given a stack of six to eight photographs each day and the defendant’s photograph was not on the top of the pile either time. On both occasions Cooper selected the defendant’s photograph and identified it only as resembling the man he had seen in complexion, height, size and hair style. This is not a situation where a witness was repeatedly shown the defendant’s photograph until he picked out the highlighted suspect. The witness had already selected the defendant’s photograph as resembling the man he had seen. Cooper was merely shown the picture selected two days earlier in a different setting to see if he remained constant in his identification. He was, in exactly the same degree. We cannot find that under these circumstances the recurrent use of the defendant’s photograph rendered the August 10, 1984 pretrial photographic identification “unnecessarily suggestive” so as to require its suppression at trial.

The defendant also argues that Cooper’s pretrial identification was tainted by alleged discussions between Cooper and other witnesses that occurred on August 10, 1984, prior to Cooper’s second viewing of a photographic array. We disagree. Cooper testified that on August 10 he was taken to police headquarters, along with Susie Jackson, by two detectives. Upon arrival, he recalled only that he and Jackson were taken to separate rooms where he gave a statement and viewed the photographic array. Henry Ellis, however, testified that at some point during the investigation, although it is not clear when, a number of the possible witnesses including Cooper were placed in the same room and had some discussions regarding the Kennedy murder. The defendant, however, has pointed to no evidence in the record to suggest that Cooper’s photographic identification was in any way aided by any discussions that may have taken place. While the failure of the police to sequester potential witnesses invites an exchange of information that could taint a subsequent identification, the failure to sequester does not render a subsequent identification impermissibly suggestive where, as here, there is nothing that even suggests that Cooper’s identification was influenced by any discussions that may have occurred. See State v. Boscarino, supra, 732.

Because the defendant has failed to demonstrate that the photographic identification of the defendant by Cooper resulted from unnecessarily suggestive procedures, we need not analyze the reliability of the identification. State v. Boscarino, supra; State v. Miller, supra; State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986). Accordingly, we find that the trial court did not err in denying the defendant’s motion to suppress Cooper’s pretrial photographic identification of the defendant.

y

The defendant’s final claim is that his sixth amendment right to effective assistance of counsel and his fourteenth amendment right to due process were violated by the state's “open file policy.” Specifically, the defendant argues that under such policy he was only entitled, in lieu of filing specific discovery requests, to review the state’s file and was precluded from transcribing any of his findings. Additionally, he argues that the state’s file was incomplete and missing certain exculpatory items. He argues that, consequently, he was deprived of his right to proper discovery and thus his rights to effective counsel and due process were violated. We disagree.

In February, 1985, defense counsel filed a general request for disclosure of exculpatory material in the possession of the state. In response, the state permitted defense counsel, upon the scheduling of an appointments), to review the state’s entire file. Sometime thereafter defense counsel reviewed the file and some materials were turned over to the defendant. In addition, there was material in the file which the state would not agree to turn over to the defendant. By agreement this material was placed in an envelope and presented to the court for an in camera hearing and judicial determination as to whether it was disclosable as exculpatory material, pursuant to General Statutes § 54-86c (b).

Prior to trial, the court held a hearing at which time defense counsel was provided with copies of the materials submitted to the court. The court took up each item separately and both parties were permitted to argue their respective positions as to the disclosure. The trial court ruled on each item, to which rulings the parties took the appropriate exceptions. In addition, throughout the trial numerous requests for additional exculpatory material were made by defense counsel which resulted in additional disclosure.

A

Due Process

It is well settled that a violation of due process occurs where the prosecution fails to disclose to defense counsel requested exculpatory or Brady materials. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Baker, 195 Conn. 598, 609, 489 A.2d 1041 (1985); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763 (1984), cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). Where, as here, a general request for exculpatory materials had been made, the burden is on the defendant to establish that the failure to disclose is a denial of due process. State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983). In order to meet this heavy burden, the defendant at a minimum must demonstrate: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972); State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987); State v. Baker, supra; State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

Under the circumstances of this case, the defendant has failed to present any evidence to demonstrate that the “open file policy” violated his rights to due process by precluding the discovery of exculpatory material. At the outset, we note that the defendant voluntarily agreed to accept the “open file policy.” Under this policy the defendant’s counsel had access to the state’s entire file for approximately five months prior to the start of the trial. No restrictions were placed upon the number of times he was permitted to review that file. Defense counsel was permitted to mark material where he and the state’s attorney were not in agreement regarding the exculpatory nature of the material. Thereafter defense counsel was given copies of these materials for purposes of argument at the in camera hearings held prior to trial, pursuant to General Statutes § 54-86c (b).

The defendant argues that he was precluded by the open file policy from filing specific requests for disclosure. That claim, however, is not supported. In fact, the record is to the contrary. The court file contains a supplemental motion for production and discovery dated February 22, 1985, which was filed but never ruled upon and apparently never pursued. In addition, throughout the trial, defense counsel made numerous oral motions for alleged exculpatory materials as they came to light. The trial court took up these matters when presented and ordered disclosure in response to those motions when appropriate.

The defendant also argues that he was deprived of a fair trial because the state’s file failed to contain the following items during his initial review because they had been either lost or misplaced: a Hartford police department tape recording; reports of Dr. Abraham Stolman; a package of Newport cigarettes; and a June, 1985 letter of Carl Blair. First, we note that a copy of the tape recording and the additional reports of Stolman were turned over by the state as soon as the state became aware of their existence. The package of Newport cigarettes was lost, but a photograph of it was admitted into evidence at trial and testimony indicated that no latent fingerprints had been found on it previously. While the letter of Carl Blair was never found, the defendant has offered no evidence to indicate that the subject matter of the letter was exculpatory or that the letter had ever become part of the state’s file. In addition, Blair testified at trial regarding the letter and was subject to cross-examination. We also find the defendant’s claim, that he was deprived of a fair trial because the state did not disclose Carl Blair as a witness prior to the day of his testimony, to be meritless. The record clearly indicates that the state erroneously named him Brooks in its witness list and did not discover the mistake until the day Blair was to testify. In addition, the trial court recessed to provide defense counsel an opportunity to interview Blair prior to his testimony.

Under the circumstances it is clear that the defendant has failed to demonstrate a violation of his rights to due process.

B

Sixth Amendment

The defendant’s final argument is that the “open file policy” hindered defense counsel’s ability to represent him in violation of his sixth amendment right to effective assistance of counsel. We decline to review this claim because the defendant has failed to formulate any reasoned legal argument and has failed to cite any authority in support of his claim. See State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987). The claim encompasses the final sentence of the defendant’s brief and amounts to no more than an unsupported assertion. Under such circumstances, we decline to review this claim.

There is no error below that requires reversal of the defendant’s conviction.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (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 § 52-180 (a) provides: “admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       Torres returned to the police station to correct his statement because his girlfriend had given a statement to the police on August 7, 1984, which conflicted with Torres’ August 6, 1984 statement with regard to several aspects. Torres discovered the conflicting account given by his girlfriend when she arrived home.

       General Statutes (Rev. to 1985) § 54-56e provides: “(Formerly Sec. 54-76p). ACCELERATED pretrial rehabilitation. There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime, not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of crime and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. This section shall not be applicable to any person charged with a violation of section 14-227a, 53a-56b or 53a-60d. Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony or to any youth who has previously been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n, inclusive. Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. If the defendant refuses to accept, or, having accepted, violates such conditions, his case shall be brought to trial. If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. If the defendant does not apply for dismissal of the charges against him after satisfactorily completing his period of probation, the court, upon receipt of a report submitted by the office of adult probation that the defendant satisfactorily completed his period of probation, may on its own motion make a finding of such satisfactory completion and dismiss such charges. Upon dismissal, all records of such charges shall be erased pursuant to section 54-142a.”

       The trial court admitted into evidence a one page police report made by Detective Ocell Blocker. The report indicated that an anonymous male called the police station and indicated that he had heard a woman scream, “Robert, no, no, Robert, no no.” Neither party challenged the admission of this report on appeal.

       Gonzalez described the knife as being a large folding knife with a wooden handle and a straight blade. The blade was pointed at the end and smooth along the cutting edge, not serrated.

       The trial court ruled as follows: “I agree with counsel for the State that you should not go into those matters that relate to the identification process. All of that confrontation between this witness and the police and the claim of duress and the like of that, all of that has to do with the issue that we then heard with respect to the admissibility of that evidence as tested by a motion to suppress. There is, however, her statement on examination, direct examination, here in the presence of the jury that she is positive of the identification of the individual that night, and that the defendant is that individual. You may inquire whether or not that identification may have been affected at all by her being presented with photographs so that she is now identifying the person shown in the photograph rather than a present recollection of the identity of the individual that night. To that extent I will let you go into the question of photographs.”

       While these factors listed are enumerated in our case law, specifically in the context of determining whether the identification procedures violated a defendant’s due process rights, we find them relevant to our discussion of this issue.

       Gonzalez’ testimony on these two issues during the suppression hearing was unclear and at times contradictory.

       Cooper’s testimony at the suppression hearing is confusing and would lead one to believe that it was during the August 10, 1984 photographic array at the police station that he chose two photographs but his trial testimony clearly indicates to the contrary and is corroborated by the testimony of Detective Kurt Wolf.

       Even if we assume, arguendo, that the Cooper identification resulted from unnecessarily suggestive procedures and the defendant was able to demonstrate the identification was also unreliable, we would, nevertheless, find the erroneous admission of Cooper’s identification testimony to constitute harmless error beyond a reasonable doubt in light of the extensive identification evidence otherwise presented that we have previously outlined in detail. See Rose v. Clark, 478 U.S. 570, 578-79, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); Moore v. Illinois, 434 U.S. 220, 232, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977), on remand, 577 F.2d 411 (7th Cir. 1978), cert. denied, 440 U.S. 919, 99 S. Ct. 1242, 59 L. Ed. 2d 471 (1979); Gilbert v. California, 388 U.S. 263, 273-74, 87 S. Ct. 1951, 18 L. Ed 2d 1178 (1967); State v. Gordon, 185 Conn. 402, 420-21, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Packard, 184 Conn. 258, 269 n.5, 439 A.2d 983 (1981); State v. Oliver, 161 Conn. 348, 357, 288 A.2d 81 (1971).

       General Statutes § 54-86c (b) provides: “disclosure of exculpatory INFORMATION OR MATERIAL. . . .
      “(b) Any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney, may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory.”

       “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).