author: Hull, J.

text:
    E. Udolf, Inc. v. Aetna Casualty and Surety Company et al.
    (13838)
    Shea, Callahan, Glass, Hull and F. X. Hennessy, Js.

      Argued March 1
    decision released May 1, 1990

      William F. Gallagher, with whom, on the brief, was Gwen B. Weltman, for the appellant (plaintiff).

      John T. Harris, with whom, on the brief, were Gregory T. D’Auria and Peter R. Reynolds, for the appellees (named defendant et al.).

      Henry C. Ide, for the appellee (defendant Fire and Casualty Insurance Company of Connecticut).
   Hull, J.

The sole issue in this appeal is whether the plaintiff, E. Udolf, Inc., was entitled to coverage under certain employee dishonesty insurance policies issued by the defendants, Aetna Casualty and Surety Company (Aetna) and Fire and Casualty Insurance Company of Connecticut (Fire and Casualty), for the misappropriation of monies by an employee of the plaintiff. The plaintiff notified the defendants of losses it had incurred as a result of an employee’s dishonesty and sought from the defendants indemnification, plus interest, for those losses. Upon the defendants’ refusals to pay its claim, the plaintiff instituted the present action. The matter was thereafter tried to the court and judgment was rendered in favor of the defendants. From this judgment the plaintiff appeals. We find no error.

The underlying facts as found by the trial court are as follows. The plaintiff is a small corporation that operates a retail men’s clothing store in the city of Hartford. During the relevant period, 1980 through 1983, the plaintiff employed between eight and ten employees. The only officer, director and shareholder of the plaintiff was Leonard Udolf, who was present in the store approximately 10 to 20 percent of the time. In his absence the store was run by Kenneth Auer, the store manager. Auer was the overseer of the store and was principally in charge of its operations in the absence of Leonard Udolf. He was expected, however, to report all relevant activities to Leonard Udolf.

During the years 1980 and 1981, Lynn Bjork, an employee of the plaintiff, misappropriated $6000 from the plaintiff. To effect the misappropriations, she substituted her personal checks for money generated by the plaintiff’s sales, and then simply put these checks in her desk rather than depositing them into the plaintiff’s account. In the spring of 1981, during one of Leonard Udolf’s frequent absences from the store, Anna Shukis, the plaintiff’s bookkeeper, discovered the misappropriations and immediately informed Auer of them. Auer and Shukis were expected to inform Leonard Udolf of activities such as Bjork’s misappropriations. They, however, did not consult with Leonard Udolf, but rather agreed with one another to allow Bjork to repay the $6000 and remain employed by the plaintiff. Thereafter, Bjork repaid the $6000.

Beginning in late 1981, and continuing until February, 1983, Bjork again misappropriated monies from the plaintiff, totaling $48,715.08. These misappropriations were discovered in February, 1983, and Bjork was immediately fired by Auer on the direct order of Leonard Udolf.

Pursuant to employee dishonesty insurance policies that the plaintiff had purchased from Aetna and from Fire and Casualty, the plaintiff notified the two companies of the losses incurred as a result of Bjork’s misappropriations. Both Aetna and Fire and Casualty refused to indemnify the plaintiff for those losses, claiming that the language of the policies excluded coverage for Bjork’s actions. Aetna’s refusal to pay was based on the following provision contained in section 7 of its policy: “The coverage of Insuring Agreement I shall not apply to any Employee from and after the time that the Insured or any partner or officer thereof not in collusion with such Employee shall have knowledge or information that such Employee has committed any fraudulent or dishonest act in the service of the Insured or otherwise, whether such act be committed before or after the date of employment by the Insured.” Fire and Casualty’s refusal was based on similar language contained in section 1 (3) of its policy: “Insurance hereunder shall be deemed cancelled as to any Employee immediately upon discovery by the Insured, or any partner or officer, of any fraudulent or dishonest act of such Employee.”

The trial court concluded that, under the terms of the policies, the plaintiff was not entitled to recovery of the losses it had incurred as a result of Bjork’s actions. The basis of the court’s conclusion was its determination that the knowledge of Auer and Shukis concerning misappropriations committed by the plaintiff’s employees was imputed to the plaintiff. The court thus reasoned that because the 1980-81 misappropriations by Bjork constituted “fraudulent or dishonest act[s]” within the scope of section 7 of Aetna’s policy, and section 1 (3) of Fire and Casualty’s policy, and because the plaintiff, by imputation of Auer’s and Shukis’ knowledge, became aware of those misappropriations no later than the summer of 1981, any subsequent losses caused by a “fraudulent or dishonest act” on the part of Bjork were excluded from coverage under the policies. In so concluding, the court rejected the plaintiff’s claim that, because Auer and Shukis did not inform Leonard Udolf of Bjork’s 1980-81 misappropriations, they were in collusion with Bjork. The court stated that while the failure of Auer and Shukis to notify Leonard Udolf may have been an act of poor judgment, it was not a fraudulent act and therefore was not collusive.

On appeal, the plaintiff claims that the trial court erred in: (1) imputing to the plaintiff the knowledge of Auer and Shukis concerning Bjork’s prior misappropriations of the plaintiff’s monies; (2) finding that Bjork’s prior misappropriations were “fraudulent or dishonest” under the terms of the policies; and (3) finding that Auer and Shukis were not in collusion with Bjork.

I

We first consider whether the trial court erred in imputing to the plaintiff the knowledge of Auer and Shukis concerning Bjork’s prior misappropriations of the plaintiff’s monies. The plaintiff concedes that generally, “ ‘ “notice to, or knowledge of, an agent while acting within the scope of his authority and in reference to a matter over which his authority extends, is notice to, or knowledge of, the principal.” 2 Mechem on Agency (2d Ed.) § 1803.’ Lane v. United Electric Light & Water Co., 88 Conn. 670, 674, 92 A. 430 (1914); Reardon v. Mutual Life Ins. Co., 138 Conn. 510, 516, 86 A.2d 570 (1952).” West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 395, 389 A.2d 741 (1978). As stated in the Restatement (Second) of Agency § 272, “a principal is affected by the knowledge of an agent concerning a matter as to which he acts within his power to bind the principal or upon which it is his duty to give the principal information.” The plaintiff argues, however, that this agency principle should not apply in the context of employee dishonesty insurance, citing as authority for its position American Employers’ Ins. Co. v. Cable, 108 F.2d 225 (5th Cir. 1939), Miami National Bank v. Pennsylvania Ins. Co., 314 F. Sup. 858 (S.D. Fla. 1970), Phoenix Indemnity Co. v. Union Finance Co., 54 So. 2d 188 (Fla. 1951), and Peurifoy v. Loyal, 154 S.C. 267, 151 S.E. 579 (1930).

The trial court was unpersuaded by the plaintiff’s argument and the cases on which it was based, and relied instead primarily on Ritchie Grocer Co. v. Aetna Casualty & Surety Co., 426 F.2d 499 (8th Cir. 1970), in concluding that the knowledge of Auer and Shukis concerning Bjork’s 1980-81 activities should be imputed to the plaintiff. The similarities between Ritchie Grocer Co. and the instant case are striking. At issue in Ritchie Grocer Co. was the same policy exclusion as in the present case: “ ‘The coverage of this Policy shall not apply to any Employee from and after the time that the Insured or any partner or officer thereof not in collusion with such Employee shall have knowledge or information that such Employees (sic) has committed any fraudulent or dishonest act in the service of the Insured or otherwise ....’” Id., 501.

The underlying facts involved in Ritchie Grocer Co. were as follows. Joseph Polk, the manager of a branch office of the plaintiffs wholesale grocery business, received an application for employment from Wayne Kemp. Prior to hiring Kemp, Polk inquired into Kemp’s reputation for trustworthiness and discovered that several months earlier Kemp and two other boys had broken into a gas station and had stolen some tires and money. Notwithstanding that information, Polk hired Kemp as a truck driver for the plaintiff. Id., 501-502. During the eighteen months that Kemp was employed by the plaintiff, he misappropriated $17,486.20, for which the plaintiff made a claim under its fidelity policy. Id., 503. The insurance company defended on the grounds that Polk’s knowledge of Kemp’s prior “fraudulent or dishonest” act made him a known risk and excluded him from coverage under the policy’s terms. Id., 501. The District Court held in favor of the insurance company on this ground and the Eighth Circuit Court of Appeals affirmed, reciting the general agency principle that knowledge of an agent acquired in the ordinary discharge of his duties for the corporation is generally to be imputed to the principal. Id., 500.

The trial court in the present case also relied on Alfalfa Electric Cooperative, Inc. v. Travelers Indemnity Co., 376 F. Sup. 901 (W.D. Okla. 1973), as support for its decision to impute to the plaintiff the knowledge of Auer and Shukis. In Alfalfa Electric Cooperative, Inc., the court imputed to an employer the knowledge of an office manager concerning prior fraudulent or dishonest acts of an employee. Id., 907.

The cases relied upon by the trial court and the cases cited by both the plaintiff and the defendants lack any meaningful analysis of the reasons that imputation was either appropriate or inappropriate under the facts of the particular cases. We conclude, however, that a proper analysis flows logically from the tension between the conflicting views presented by the plaintiff and the defendants. The plaintiff argues that the general rule imputing knowledge of an agent to a principal presumes the agent’s loyalty in the performance of his duties. The corporation purchases fidelity insurance to protect itself from the risk that the employee will be disloyal. The plaintiff claims that it, therefore, would be “absurd” to hold that each employee so insured was an agent of the plaintiff whose duty it was to discover and report acts of dishonesty by other employees. Moreover, the plaintiff argues, if the neglect or reluctance of the insured’s employees to report on one another relieved the insurance carrier of its liability, the corporation would be denied a remedy. The defendants’ counterpoint is that, taken to its extreme, the plaintiff’s contention would render “prior employee dishonesty” exclusions useless. Without employee imputation, the defendants argue, it would be impossible to charge an insured corporation with knowledge of an employee’s prior wrongful actions.

The answer to this conundrum can be found in the cases relied upon by the trial court, although not explicitly articulated therein. We conclude that the knowledge of an employee may be imputed to an employer under an employee dishonesty insurance policy if the employee holds a position of management or control in the exercise of which a duty to report known dishonesty of a fellow employee can be found to exist either explicitly or by fair inference from a course of conduct. “ ‘The knowledge of individual officers and employees at a certain level of responsibility will be deemed the knowledge of the corporation; where the level of responsibility begins must be discerned from the circumstances of each case. . . ” Gordon Selway, Inc. v. Spence Bros, Inc., 177 Mich. App. 116, 124, 440 N.W.2d 907 (1989), quoting 18B Am. Jur. 2d, Corporations § 1673, pp. 524-25.

On appeal, the plaintiff argues that the evidence presented at trial indicated various limitations on the responsibilities of Auer and Shukis that made imputation inappropriate. The trial court, however, concluded that Auer was principally in charge of operations during Leonard Udolf s absences from the store and that one of his responsibilities in that capacity was to report matters such as misappropriations to Leonard Udolf. The court further determined that Anna Shukis, the plaintiffs bookkeeper, was responsible for running the bookkeeping operation and that she likewise had a responsibility to report to Leonard Udolf any misappropriations that occurred in that department. The nature and extent of an agent’s authority is a question of fact for the trier. E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 126, 429 A.2d 829 (1980). “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Bjork testified at trial that in 1980-81, Auer’s position was that of “store manager.” Although Auer testified at trial that he was only the “sales manager,” this testimony was inconsistent with his prior deposition testimony in which Auer had claimed that he was in fact the “store manager.” Further, while Auer stated that he did not have the authority to hire and fire employees in 1980-81, he did arrange with Bjork, without first consulting with Leonard Udolf, for repayment of the $6000 and then fired Bjork upon learning of the 1983 misappropriations. Auer’s testimony also revealed that he was expected to report to Leonard Udolf everything that happened in the store. Finally, Leonard Udolf was present in the store only 10 to 20 percent of the time. Although Leonard Udolf claimed at trial that he was always in charge of the store, even while absent, this claim conflicted with his deposition testimony in which, in response to the question of “who was in charge of the operations in your absence,” he answered: “Well I felt I had them in capable hands with Ken Auer ... on the floor . . . and in the office with Ann Shukis and the other girls.”

We conclude that the trial court’s factual findings concerning the responsibilities and consequent duties of Auer and Shukis were supported by the evidence. See Pandolphe’s Auto Parts, Inc. v. Manchester, supra. Therefore, since the court found that the positions held by Auer and Shukis gave rise to a duty to report misappropriations to Leonard Udolf, the court’s imputation to the plaintiff of Auer’s and Shukis’ knowledge concerning Bjork’s 1980-81 actions was not error.

II

The plaintiff next claims that the trial court erred in concluding that Bjork’s 1980-81 misappropriations of the plaintiff’s $6000 were “dishonest or fraudulent” under the terms of the policies. The gravamen of this claim is that Bjork had deposit slips and personal checks that accounted for all the money she had taken from the plaintiff and that she eventually paid back that money. The plaintiff states in its brief that “[i]n 1980 and 1981 [Bjork] merely withheld cash deposits, carefully accounting for the amounts so withheld.” According to the plaintiff, while Bjork’s acts may have been unauthorized, they were not dishonest within the context of the policies. We are unpersuaded.

Justice Cardozo wrote the following in World Exchange Bank v. Commercial Casualty Ins. Co., 255 N.Y. 1, 5, 173 N.E. 902 (1930): “Dishonesty, unlike embezzlement or larceny, is not a term of art. Even so, the measure of its meaning is not a standard of perfection, but an infirmity of purpose so opprobrious or furtive as to be fairly characterized as dishonest in the common speech of men.” To claim that Bjork’s program of self-service with respect to the plaintiff’s money was not fraudulent or dishonest defies common sense and “the common speech of men.” Moreover, we refuse to hold that it is a defense to a claim of dishonesty that a person so accused was dishonest in a very efficient manner. Accordingly, the trial court did not err in concluding that Bjork’s 1980-81 actions were “dishonest or fraudulent” under the terms of the policy.

Ill

We turn now to the plaintiff’s final claim of error. Section 7 of the Aetna policy excluded from coverage “any Employee from and after the time that the Insured or any partner or officer thereof not in collusion with such Employee shall have knowledge or information that such employee has committed any fraudulent or dishonest act . . . .” (Emphasis added.) The plaintiff argues that the court erroneously found that Auer and Shukis were not in collusion with Bjork. In finding that no collusion had occurred, the trial court relied upon the definition of “collusion” contained in Black’s Law Dictionary (5th Ed. 1979) p. 240: “An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.” The plaintiff contends that this definition is too narrow and that the court erred in not applying a broader definition of “collusion” such as that contained in Webster’s Third New International Dictionary (Unabridged Ed. 1966) in which “collude” is defined as “to connive with another: CONSPIRE, PLOT.”

Initially, we note that the plaintiff does not argue that the facts found by the trial court fail to support a finding of collusion under the definition given in Black’s Law Dictionary; nor does the plaintiff assign as clearly erroneous the court’s factual findings on this issue. Rather, the plaintiff argues solely for a broader definition of collusion than that relied upon by the trial court.

The simple answer to this claim is that the plaintiff cited to the trial court, in its amended trial memorandum dated December 15, 1988, the very definition of collusion that the court applied. Unhappy with the result, however, the plaintiff now asks that we apply to the facts of this case a different definition of the word “collusion.” We refuse to do so. A party may not secure a reversal on the basis of any invited error. See, e.g., State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); State v. Brokaw, 183 Conn. 29, 33, 438 A.2d 815 (1981).

There is no error.

In this opinion the other justices concurred.

       The Aetna policy covered the period 1969 through November 22,1982, and the Fire and Casualty policy covered the period November 1, 1982, through October 31, 1983.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. David R. Richardson
    (13740)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued February 7
    decision released May 1, 1990

      B. Paul Kaplan, with whom was Michael J. Cartier, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, David R. Richardson, was charged in an amended information with the crime of arson in the first degree in violation of General Statutes § 53a-111 (a) (1). He was found guilty by a jury. The charge arose out of an incendiary fire that caused damage to the Tally-Ho Mall, a small business building located on route 2 in the town of Preston. The defendant was the manager of a furniture store called the Water Bedroom Store located in the west end of the mall. Although a corporation, the store was essentially a family-run business, all of its stock being owned by the defendant’s wife, Laura Richardson, and the defendant’s father, George Richardson. The fire occurred in the early morning hours of February 1, 1988, while another tenant of the mall, Jon Watts, was alleged by the state to have been asleep on a couch in a small office he rented at the east end of the mall. There was evidence that the fire started in an attic area over the Water Bedroom Store. The attic could be reached by a trap door in the ceiling of the store.

The fire was discovered by a neighbor, Joyce Girard. From her porch, Girard noticed smoke coming from the mall at approximately 2:30 a.m. After seeing the smoke, Girard awakened her husband and sent him to arouse Watts, whose truck was parked outside his office at the mall. She then called the fire department. Keith Girard was able to arouse Watts only after shouting and banging on the door and window of Watts’ office for what he said was a period of four or five minutes. After arousing Watts, Girard assisted him in removing some computer equipment from the building.

I

The defendant first claims that he is entitled to a new trial because the state, in its closing argument, having commented on facts not in evidence deprived him of his right to a fair trial and an impartial jury. The scenario that led to the defendant’s claim can be summarized as follows. There was evidence that two or three months prior to February 1, 1988, the defendant had installed an autodialer on the telephone in the Water Bedroom Store. The autodialer was activated when a beam emanating from any of three sensors in the store was broken. Once a beam was broken, a person authorized to be in the store, such as an employee, had a short interval to enter a code into a key pad signaling an authorized entry. The autodialer would then place a call to the defendant’s answering service which in turn would notify the defendant of the authorized entry. If the code was not entered, the autodialer would, according to the evidence, dial the defendant’s answering service, which in turn would contact the defendant via his pager to notify him of an unauthorized entry into the store.

On the morning of the fire, the autodialer placed six calls to the defendant’s answering service in a short period of time, commencing at 2:25 a.m. and ceasing at 2:37 a.m. The defendant was notified of the calls through his pager. The telephone company maintained a record of these calls because a telephone call from Preston, where the defendant’s store was located, to the defendant’s answering service in Putnam, was a toll call. The bill for these calls showing the calling number, the number called, and the time that the calls were made, was submitted into evidence at the trial by the defendant. There was no definitive evidence presented at the trial, however, as to exactly how the autodialer functioned. In particular, no explicit testimony was offered concerning whether the autodialer dialed the defendant’s answering service only once when a sensor beam was broken or whether a single unauthorized intrusion into a sensor beam caused the autodialer to call continuously for a period of time or until reset. The evidence was uncontroverted, however, that although the defendant had been at his Preston store earlier in the evening he was not at the store when the fire was discovered or when the calls were placed by the autodialer.

In his closing argument, in rebuttal of the defendant’s final argument, the prosecutor expressed his belief to the jury that the autodialer, once activated by a single breach of a sensor beam, continued dialing. At the close of arguments, the defendant alerted the trial court to the absence of any evidentiary foundation for the state’s remarks and requested a specific curative instruction pointing out to the jury the lack of a basis in the evidence supporting the state’s argument. The trial court denied the defendant’s request for such an instruction. Prior thereto the court reflected that it was its impression that the defendant himself had argued “some things” that were not in evidence. The court noted, however, that the jurors would be instructed that they were to make up their own minds from what they recalled the evidence to be and not from what either counsel said in argument. The defendant took an exception to the court’s ruling. Thereafter, the court instructed the jury that its determination of the facts was to be adduced from the evidence and not the arguments of counsel. Subsequently, no objection was voiced or exception taken by either the state or the defendant to the trial court’s charge. “[I]n the absence of a fair indication to the contrary, [the jury] is presumed to have followed the instructions of the court.” State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); State v. Barber, 173 Conn. 153, 156-57, 376 A.2d 1108 (1977).

After the defendant’s conviction, he moved for a new trial. The trial court denied his motion. On appeal, the defendant claims that the trial court erred when it denied his motion and that he is entitled to a new trial because of the failure of the court to deliver a specific curative instruction explicitly calling the jury’s attention to the lack of an evidentiary foundation for the state’s remarks pertaining to the operation of the autodialer. He argues that the misstatement of the evidence by the prosecutor resulted in catastrophic damage to his defense because it destroyed his attempt to cast suspicion on Watts as the perpetrator of the arson. He contends that if the jury had determined that the autodialer required a separate intrusion each time that it dialed, it may have believed that Watts was in the Water Bedroom Store setting the fire during the period of time that he could not be aroused by Keith Girard. The defendant postulates that if he could have generated suspicion concerning Watts’ activities between 2:25 a.m. when the first call was dialed and 2:37 a.m. when the last call was dialed, it may have created a reasonable doubt concerning his own culpability for the fire. He argues that the state's remarks, without a specific curative instruction, detracted from his attempt to implicate Watts to the extent that he was deprived of due process and that he is entitled to a new trial. We disagree.

A thorough review of the transcript reveals that the modus operandi of the autodialer, the subject of the state's disputed argument, has taken on an importance on appeal that it does not appear to have had at trial. It is only on appeal that the propensities of the autodialer have attained their status as the crucial element of the defendant’s ease. Whether the autodialer dialed only once when activated or continued to dial once activated was not a central issue at trial. In fact, as is evidenced by this appeal, that particular aspect of the operation of the autodialer was never the subject, at trial, of an explanation by witnesses for either the state or the defendant.

Further, the prosecutor’s remarks do not appear to interfere appreciably with the defendant’s attempt to point the finger of suspicion at Watts. As disclosed by the evidence, Watts was alone in the mall at 2:25 a.m. when the autodialer went into operation and the defendant was elsewhere. That fact, coupled with Girard’s testimony that he could not awaken Watts for four or five minutes, would seem adequate to have made the defendant’s point, if the point was to be made, that Watts might have been the culprit. Apparently, from the cumulative effect of the other evidence at trial, the jury did not adopt the defendant’s theory.

Further, David Mason, the chief of the Poquetanuck Volunteer Fire Department, who was the first firefighter to arrive at the mall, testified that he received the alarm at 2:32 a.m. and arrived at the scene four minutes later at 2:36 a.m. He testified that at the time he arrived he saw Watts and Keith Girard standing outside. The last relevant call by the autodialer, however, was made at 2:37 a.m., which casts doubt on the defendant’s theory concerning Watts’ responsibility if the autodialer required a separate intervention by a person each time that it dialed.

Moreover, while the defendant claims that there was no evidence that would allow the state to argue as it did, he neglects to note that, in his final argument, he stated concerning the Water Bedroom Store, “we know that at 2:37 somebody was in there.” That argument assumes that the autodialer required continuous intervention by a person in order to operate as it did. There was, however, no evidence for that proposition before the jury any more than there was evidence that the autodialer continued to dial after only one intrusion as argued by the state.

“ ‘In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. State v. Kinsey, 173 Conn. 344, 348-49, 377 A.2d 1095 (1977).’ State v. Haskins, 188 Conn. 432, 457, 450 A.2d 828 (1982).” State v. Williams, 204 Conn. 523, 538, 529 A.2d 653 (1987); State v. Glenn, supra, 492. In that context the burden is on the defendant to prove that the remarks made by the prosecutor were so prejudicial that he “was deprived of the opportunity for a fair trial and [that] the entire proceedings were tainted.” State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978); State v. Doehrer, 200 Conn. 642, 653-54, 513 A.2d 58 (1986); State v. Glenn, supra; State v. Hafner, 168 Conn. 230, 251, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); State v. Hamel, 14 Conn. App. 6, 9, 539 A.2d 603 (1988). Further, in addressing the jury “ ‘[c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.’ State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902); see State v. Greenberg, 92 Conn. 657, 663, 103 A. 897 (1918).” State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).

Although the prosecutor may have commented on facts not in evidence, we cannot say that his remarks were completely uninvited by the defendant’s closing argument. See State v. Fullwood, 194 Conn. 573, 585, 484 A.2d 435 (1984); State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983). The question before us, however, is not whether the prosecutor’s remarks “ ‘ “were proper or improper, but it is whether the action of the trial court in refusing to grant a new trial on account of them, in the exercise of its discretion, so far exceeded or abused the discretion committed to it in a matter of this kind as to warrant us in granting a new trial.” State v. Laudano, [supra, 646].’ State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984) [cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985)].” State v. Fullwood, supra, 584. “The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful.” State v. Glenn, supra, 493. Because this case does not involve “deliberate prosecutorial disregard of express judicial directions or established rules of fair play,” there is no occasion for the exercise of our supervisory powers. State v. Fullwood, supra. Our inquiry rather is to determine whether the defendant was deprived, by the remarks of the state, of his constitutional right to a fair trial. Id., 584-85; State v. Glenn, supra, 492; State v. Kinsey, supra, 348.

“ ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 489, 442 A.2d 1320 (1982).” State v. Couture, supra, 562; State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985). We must, therefore, determine whether the remarks of the prosecutor, in light of all the circumstances, including the trial court’s charge, were so egregious and so damaging to the defendant that they deprived him of a fair trial. State v. Fullwood, supra; State v. Couture, supra, 562-63. Applying the established rules to the case before us, we conclude that the defendant falls far short of demonstrating an entitlement to a new trial. See State v. Doehrer, supra, 653. Even if it is assumed that the prosecutor’s comments concerning the autodialer were without foundation, the defendant’s attempt to inculpate Watts was not so substantially impaired thereby as to deprive him of a fair trial. The court did not err therefore when, in the exercise of its discretion, it denied the defendant’s motion for a new trial. State v. Fullwood, supra, 584; State v. Laudano, supra, 646.

II

The defendant next claims that the trial court committed reversible error when it denied him the opportunity to impeach Watts after Watts had testified in the state’s case-in-chief. On direct examination by the prosecutor Watts testified that he had been sleeping on a couch in his office in the mall at the time the fire was discovered. He stated that he had arrived at the mall about midnight after having seen “some club owners and managers” in connection with his business. After reaching the mall, he testified that he had done some paper work and some work with his computer. Watts stated that, because it was so late, he then decided to stay overnight in his office rather than return home inasmuch as the mall was more convenient to his day job.

On cross-examination Watts admitted that prior to arriving at the mall he had been at places that serve liquor and that he had consumed a few beers. He denied, however, that he had been intoxicated. Watts also denied that he had ever told anyone that he was intoxicated on the morning of the fire or that his decision to stay overnight in his office had anything to do with his inability to drive because of his ingestion of alcohol. Further, he stated that he did not believe alcohol was affecting him at all on the morning of the fire.

Thereafter, during his case-in-chief, the defendant called Paul Weady as a witness in an effort to impeach Watts by the use of a prior inconsistent statement. Weady was a private investigator who had been retained by the defendant. In an offer of proof outside the presence of the jury, Weady testified that he had spoken to Watts on May 3,1988, and that at that time Watts had told him that “he had been in the Plainfield-Jewett City area of booking for D.J. jobs, and he stopped at Matthews restaurant, which may have been Mad Jacks at that time. He had a few beers there. He went to the Tally-Ho Mall where his office was to do some work. And when I asked him why he stayed there that evening, he said the reason he stayed there is he had been drinking and he did not want to take a chance on driving at that time.”

The state objected to the admission of Weady’s testimony and the trial court sustained the objection, ruling that Watts’ statement was not inconsistent with his testimony. The defendant excepted to the trial court’s ruling and on appeal claims that it constitutes reversible error. We disagree.

Impeachment of a witness by the use of a prior inconsistent statement is proper only if the two statements are in fact inconsistent. United States v. Hale, 422 U.S. 171, 176, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975); Grunewald v. United States, 353 U.S. 391, 418, 77 S. Ct. 963,1 L. Ed. 2d 931 (1957); State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); Schurgast v. Schumann, 156 Conn. 471, 482, 242 A.2d 695 (1968). Moreover, the inconsistency must be substantial and relate to a material matter. Patrick v. Burns, 5 Conn. App. 663, 675-76, 502 A.2d 432 (1985), cert. denied, 198 Conn. 805, 504 A.2d 1059 (1986). “Since the purpose of such evidence is ‘to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true’; 3A Wigmore, [Evidence (Chadbourn Rev. 1970) § 1040]; the inconsistency must be substantial and relate to a material matter. People v. Curtis, 48 Ill. App. 3d 375, 386, 362 N.E.2d 1319 [1977]; 98 C.J.S., Witnesses § 583. In determining whether an inconsistency actually exists, the testimony of the witness as a whole, or the whole impression or effect of what has been said, must be examined. State v. Hephner, 161 N.W.2d 714, 719 (Iowa [1968]); Commonwealth v. West, 312 Mass. 438, 440, 45 N.E.2d 260 [1942]; State v. Bowen, 247 Mo. 584, 598,153 S.W. 1033 [1913]; 3A Wigmore, op. cit.; 98 C.J.S., Witnesses, supra. Moreover, statements from which a possible inference of inconsistency may be drawn are insufficient for the purpose of impeachment. Gilmartin v. D. & N. Transportation Co., 123 Conn. 127, 134-35, 193 A. 726 [1937]; 98 C.J.S., Witnesses, supra.” State v. Piskorski, supra, 710.

The trial court is vested with wide discretion as to what may be admitted as a prior inconsistent statement for impeachment purposes. State v. Torres, 210 Conn. 631, 640, 556 A.2d 1013 (1989); State v. Avis, 209 Conn. 290, 302, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Reed, 174 Conn. 287, 303, 386 A.2d 243 (1978). That discretion will not be disturbed unless it has been abused. Patrick v. Bums, supra, 676. In view of all the circumstances, we conclude that the court could reasonably have decided that Watts’ statement, sought to be introduced through Weady, was not substantially inconsistent with his testimony or did not sufficiently relate to a material matter so as to warrant its admission into evidence. State v. Piskorski, supra, 711; Patrick v. Burns, supra, 676. The trial court did not abuse its discretion in so ruling.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-111 (a) (1) provides in pertinent part: “arson in the first degree: class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”

       From this office Watts ran a part-time business called “Poor Boy-Sounds’ ” that apparently supplied recorded music to bars and other places of entertainment in the area.

       Girard was on the porch at that hour to let the family cat, which had awakened her, out of the house.

       There was another call placed at 7:16 a.m. that apparently has no relevance.

       Laura Richardson, the defendant’s wife, in response to the question by defense counsel, “And if the beams are tripped, the autodialer makes a call?” responded, “Correct.” (Emphasis added.)
      The defendant, however, told the police that “when the door opens, a signal starts to dial the telephone.” (Emphasis added.) Laura Richardson, also in response to a question, detailed the people who knew how to turn off the alarm system.

       The information concerning the defendant’s whereabouts at 2:25 a.m. was conflicting. One version came from the defendant’s statement to the police that he was in his other Water Bedroom Store in Danielson at that time and from his wife, who testified that she talked to the defendant on the telephone in the Danielson store at that time. Theré was testimony from a state police officer, however, who said that he saw a van similar to the defendant’s some two or three miles from the mall at approximately 2:20 a.m. and that he followed it for several minutes in a direction taking it away from the mall.

       The state in its closing argument also initially informed the jury that what it was going to say by way of argument was not evidence and that it was for the jury to decide what the facts were.

       Girard’s precise response on cross-examination to the question of how long it had taken to arouse Watts was: “I would say four to five minutes. I don’t know.” To which defense counsel responded, “You don’t know. All right. Now, when the fire department came you were told not to go inside?” This appears to be the extent of the defendant’s exploration at trial of the length of time it took to arouse Watts.

       The defendant filed a motion for a new trial on May 8,1989, within one week after his conviction, that did not cite the state’s argument as grounds. In his motion at that time the defendant cited only an unconstitutional search and newly discovered evidence as reasons for a new trial. When the motion was argued on June 23, 1989, however, the defendant did, at that time, contend that the state’s argument entitled him to a new trial. He also included that reason in his preliminary statement of issues dated July 21, 1989.

       In his final argument, defense counsel in an effort to explain why the defendant did not call the police when Ms pager sounded six times at 2:30 a.m. said, “He never had any indication there was a burglary, he never had any indication it was a fire, he never had any indication he should get excited about that. The only indication was in the past animals might trip this up and they had some, whether you call them false alarms or alarms that turned out not to be a person inside there.”
      Further, in a statement, the defendant stated that he did not call the police because he “had many false alarms in the past.”

       At that time Watts worked days at the Indian reservation in Ledyard.


text:
    Elizabeth Repplier v. Jacob D. Zeldes et al.
    Decided February 21, 1990

      Mary F. Haddon, in support of the petition.

      Karen Goodwin, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court is dismissed.


text:
    Anele R. Harrington v. Alfred T. Harrington et al.
    Decided February 21, 1990

      Gordon R. Raynor, in. support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 492, is denied.


text:
    State of Connecticut v. Donald Scott
    Decided February 21, 1990

      Leopold P. DeFusco, in support of the petition.

      Donald A. Browne, state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 513, is denied.


text:
    State of Connecticut v. Barry DeMartin
    Decided February 21, 1990

      Judith A. Sarathy, special public defender, in support of the petition.

      Geoffrey E. Marion, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate, Court, 20 Conn. App. 430, is denied.


text:
    State of Connecticut v. Stanley Wells
    Decided February 21, 1990

      K. Wynne Bohonnon, in support of the petition.

      James M. Ralls, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 452, is denied.


text:
    Town of Preston et al. v. Connecticut Siting Council et al.
    Decided February 21, 1990

      Kathleen Eldergill, in support of the petition.

      Phyllis E. Lemell, assistant attorney general, William Narwold and Karen L. Goldthwaite, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 474, is denied.


text:
    Sam Lapides v. Department of Public Safety, Division of State Police, et al.
    Decided February 21, 1990

      Sam Lapides, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 818, is denied.


text:
    State of Connecticut v. Scott Soltes
    Decided March 1, 1990

      Timothy J. Sugrue, deputy assistant state’s attorney, Mary M. Galvin, state’s attorney, and Michael J. Weber, Jr., deputy assistant state’s attorney, in support of the petition.

      Elaine M. Scanlon, in opposition.
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 342, is granted, limited to the following issue:

“Did the Appellate Court err in holding that the trial .court abused its discretion by excluding the testimony of the defendant’s mother as to whether her ‘other children suffer from any physical ailments, any medical problems’ prior to any evidence that the defendant suffered from a genetic mental disorder?”


text:
    Wilcox Trucking, Inc. v. Mansour Builders, Inc.
    Decided March 1, 1990

      Mary F. Haddon, in support of the petition.

      Robert J. Reeve and Edward F. Scully, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 420, is denied.


text:
    State of Connecticut v. Scott Soltes
    Decided March 1, 1990

      Elaine M. Scanlon, in support of the petition.

      Timothy J. Sugrue, deputy assistant state’s attorney, in opposition.
   The defendant’s cross petition for certification for appeal from the Appellate Court, 20 Conn. App. 342, is dismissed.


text:
    State of Connecticut v. Paul Kennedy
    Decided March 1, 1990

      Michael R. Sheldon and Laura P. Gordon and Dana E. Shaw, certified legal interns, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 354, is denied.


text:
    State of Connecticut v. Larry Holloman
    Decided March 1, 1990

      Mark Rademacher, special public defender, in support of the petition.

      Leah Hawley, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 521, is denied.


text:
    State of Connecticut v. Mario Saraceno
    Decided March 8, 1990

      Joseph A. Hourihan, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Andrea Eichstedt
    Decided March 8, 1990

      Morgan J. O'Brien, special public defender, in support of the petition.

      Leah Hawley, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 395, is denied.


text:
    State of Connecticut v. Robert Ryerson
    Decided March 8, 1990

      Sue L. Wise, in support of the petition.

      Lawrence J. Tytla, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 572, is denied.


text:
    State of Connecticut v. John P. Steinmann
    Decided March 8, 1990

      Timothy C. Moynihan, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 599, is denied.


text:
    David H. Thorne v. Margaret L. Moore
    Decided March 14, 1990

      Serge G. Mihaly, in support of the petition.

      Karen L. Karpie, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 802, is denied.


text:
    Rebecca Preston et al. v. Anthony J. Keith et al.
    Decided March 28, 1990

      William J. Melley III, in support of the petition.

      Terence S. Hawkins, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 20 Conn. App. 656, is granted, limited to the following issue:

“In a negligence action in which the evidence raises an issue about the plaintiff’s conduct with respect to the duty to mitigate damages: (1) what instructions should the jury receive about the relationship between mitigation of damages and proximate cause? (2) What is the appropriate allocation of the burden of proof on the issue of mitigation of damages?”


text:
    State of Connecticut v. Dolphus Fudge
    Decided March 28, 1990

      John T. Walkley, special public defender, in support of the petition.

      Timothy J. Sugrue, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 665, is denied.


text:
    Aetna Casualty and Surety Co. v. Freeman Albert et al.
    Decided March 28, 1990

      David M. Reilly and Robert W. Carangelo, in support of the petition.

      Joseph A. La Bella, in opposition.
   The proposed intervenor Americo Arduini, Sr.’s petitions for certification for appeal from the Appellate Court are denied.


text:
    State of Connecticut v. James Kristy
    Decided March 28, 1990

      Susann E. Gill, assistant state’s attorney, in support of the petition.

      Timothy H. Everett, in opposition.
   The defendant state of Connecticut’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 495, is denied.


text:
    Sylvester Cocivi et al. v. Planning and Zoning Commission of the Town of Fairfield et al.
    Decided March 28, 1990

      John F. Fallon, Jay S. Kogan and Barbara J. O’Brien, in support of the petition.

      George J. Markley, in opposition.
   The defendant Donald Scinto’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 705, is denied.


text:
    Walter Golembeski et al. v. Metichewan Grange No. 190 et al.
    Decided March 28, 1990

      James K. Smith, in support of the petition.

      Anthony M. Fitzgerald, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 20 Conn. App. 699, is denied.


text:
    Marion Wallace v. Commission on Human Rights and Opportunities et al.
    Decided March 28, 1990

      Marion Wallace, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 813, is denied.


text:
    Norman Dean v. Alex Filipowich et al.
    Decided March 28, 1990

      Margaret G. Dean, in support of the petition.

      John W. Colleran, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 825, is denied.


text:
    Ronald Tutsky v. YMCA of Greenwich et al.
    Decided March 28, 1990

      Lawrence E. Larson, in support of the petition.

      Thomas A. Mulligan, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 806, is denied.


text:
    Connecticut State Employees Association v. Department of Administrative Services et al.
    Decided March 28, 1990

      Taka Iwashita, assistant attorney general, in support of the petition.

      Jerome W. Paun, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 20 Conn. App. 676, is denied.


text:
    Dutch Point Credit Union v. James S. Greene
    Decided January 25, 1990

      James S. Greene, pro se, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. James J. Siano
    Decided January 25, 1990

      John S. Pinney, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 369, is granted, limited to the following issues:

“1. Does the disclosure required by Practice Book § 744 depend on the personal knowledge of the prosecuting attorney?

“2. Are the requirements of Practice Book § 744 met by having the prosecuting attorney make inquiries of the relevant witness?

“3. If there was an error in failing to comply with Practice Book § 744, was it waived or was it harmless?”


text:
    Robert B. Kupstis v. Andre L. Michaud, Jr., et al.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 425, is granted, limited to the following issue:

“Did the attorney referee’s delay in issuing his report violate (a) General Statutes § 51-183b; (b) applicable provisions of the Practice Book; or (c) the due process rights of the plaintiff under the United States constitution or article first, § 10, of the Connecticut constitution?”

Decided February 8, 1990

Michael A. D’Amico, in support of the petition.

Robert J. Crean, in opposition.


text:
    State of Connecticut v. Errol A. Walker
    (13755)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued February 8
    decision released May 8, 1990

      Jeremy N. Weingast, for the appellant (defendant).

      Geoffrey E. Marion, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Kevin McMahon, assistant state’s attorney, for the appellee (plaintiff).
   Callahan, J.

The defendant, Errol A. Walker, was charged with and convicted of the crime of arson in the first degree in violation of General Statutes § 53a-lll (a) (l). The charge arose out of an incendiary fire that occurred at a three-story multiple family dwelling at 483-485 Garden Street in Hartford at approximately 3:15 a.m. on June 9, 1987.

There was evidence of the following facts. The defendant was the landlord of the building at 483-485 Garden Street. The building was in poor condition and needed considerable renovation and repair work. On the date of the fire, the premises were covered by a fire insurance policy issued by the Middlesex Mutual Insurance Company.

On the morning of June 9,1987, Glenn Mauldin was visiting a friend at another address on Garden Street. At 3:15 a.m., when he left his friend’s house and entered his automobile, his attention was attracted by an explosion and then flames emanating from 483-485 Garden Street. Immediately after hearing the explosion and observing the flames, Mauldin saw a man run from the side of the burning building. The man ran to a car that was parked in front of Mauldin’s. Mauldin immediately drove to the rear of the car, took note of its license plate, and then pulled up and stopped alongside it. While parked alongside the car Mauldin was able to observe the man and the automobile for about thirty seconds in the light of his headlights, his side parking lights, and an overhead street light. Thereafter, Maul-din drove to the nearest fire station to report the fire. When he arrived at the station, however, he learned that the fire had already been reported. He then drove back to Garden Street and gave police officers who had responded to the fire the license plate number he had noted and a description of the car and the man he had seen. Later, on June 18, he gave the police a written statement.

Kelton Merritt, who lived in the first floor apartment at 483-485 Garden Street and was home with his family at the time of the explosion and fire, told the investigating authorities that the car described by Mauldin belonged to his landlord, the defendant. The authorities made numerous attempts to contact the defendant over the next two weeks, and left messages at places that he frequented. The defendant, however, did not call the fire marshall’s office until June 25, more than two weeks after the fire. Subsequent to contacting the authorities, the defendant gave a statement in which he said that he had gone to work in Putnam at 4 a.m. on the day of the fire. The police, however, learned from the defendant’s employer that the defendant had actually gone to work in Norwich at 7 a.m. on the day of June 9. The defendant was arrested and charged with arson in the first degree pursuant to a warrant on August 26, 1987.

I

The defendant first claims that his constitutional right to a fair trial was violated by the admission into evidence, over his objection, of a photograph of his automobile. The facts underlying the defendant’s claim can be stated briefly.

At trial, Mauldin was shown a photograph of the defendant’s automobile by the prosecutor who stated: “It’s not a very good picture. Can you identify that?” Mauldin said that he could and proceeded to identify the photograph as depicting the same automobile and license plate he had seen on the morning of the fire. The defendant objected to the admission of the photograph on the ground that an insufficient foundation had been laid as to who had taken it and under what circumstances. The trial court denied the defendant’s objection and the defendant took an exception. Thereafter, on cross-examination Mauldin again identified the photograph as showing the automobile and license plate he had seen on the morning of June 9. He was then asked by defense counsel whether the photograph was “a fair representation of what [the car] looked liked that night.” In response, he answered, “No.” He then went on to explain that the background of the photograph was darker than the scene actually was on the morning of the fire, because on that morning the area of the defendant’s automobile had been illuminated by a street light and the lights of his automobile. The defendant did not renew his objection at that point.

The defendant’s claim that the admission of the photograph constituted constitutional error is without merit. “ ‘Generally, “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” State v. Periere, [186 Conn. 599, 611, 442 A.2d 1345 (1982)], quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir. 1974).’ State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985).” State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). The defendant has failed to cite a single case from any jurisdiction wherein any court has held that the admission into evidence of a photograph in a situation even remotely analogous to that on appeal is constitutional error, state or federal. Clearly the defendant “ ‘has put a constitutional tag on a nonconstitutional evidentiary ruling.’ State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987) . . . .” State v. Vilalastra, supra; State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

Photographic evidence is admissible if it has “ ‘a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry.’ ” State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986), quoting State v. DeJesus, 194 Conn. 376, 381, 481 A.2d 1068 (1984). Verification of a photograph is a preliminary question of fact to be determined by the trial court. State v. Castagna, 170 Conn. 80, 89, 364 A.2d 200 (1976). “Whether a photograph shows a situation with sufficient accuracy to render it admissible, is a preliminary question for the court . . . .” Voltz v. Orange Volunteer Fire Assn., Inc., 118 Conn. 307, 311-12, 172 A. 220 (1934); Blanchard v. Bridgeport, 190 Conn. 798, 806, 463 A.2d 553 (1983). Further, the trial court has wide discretion in admitting photographic evidence and its determination will stand unless there has been a clear abuse of that discretion. State v. DeJesus, supra, 382.

When Mauldin was shown the photograph in issue, he had already described the automobile he had seen on Garden Street on the morning of the fire. That description closely paralleled the defendant’s automobile as shown in the photograph. Moreover, Mauldin never gave any indication that the dark background of the photograph distorted the image or caused him any problem in seeing and identifying the automobile it depicted. While the photograph shown to Mauldin may not have been “very good,” its subject was discernible and it was obviously relevant evidence in the case. The trial court clearly did not abuse its broad discretion by admitting the photograph into evidence.

II

The defendant next claims that his right to a fair trial was violated by the court’s denial of his request for a continuance. We are unpersuaded.

The relevant facts as gleaned from the record concerning this claim are as follows: Prior to the commencement of the jury voir dire on Thursday, December 8,1988, defense counsel informed the court that, because of the state’s open file policy in this case, no further discovery or continuances were necessary. Later, during the voir dire, the state’s attorney told the court that the police had just informed him that there were additional reports that he did not have, including one revealing that there had been an identification of the defendant from photographic arrays by the eyewitness, Mauldin. These police reports had. not previously been made available to the state and therefore had not been disclosed to the defendant.

On Monday, December 12, the state revealed that, some weeks after Mauldin had given a written statement to the police, he had selected photographs of the defendant from two police photographic arrays as depicting the person he had seen on Garden Street on the morning of the crime. The state then expressed an intention to “offer those photographic arrays in evidence. At that time defense counsel stated that, in view of what he perceived would be the court’s ruling on a motion to suppress the photographic identifications, he would need a short continuance to investigate further. The trial court pointed out to defense counsel that he had been made aware of the photographic identifications the previous Thursday. The court said, however, that it would be disposed to grant a reasonable continuance if it were necessary. The court then inquired of counsel as to whether he was requesting a continuance at that time. Counsel replied that he was not, and that he had no problem with Mauldin testifying on the state’s case-in-chief. He stated, however, that, thereafter, he would need a continuance “to check out this key witness” because certain events had transpired that gave him doubts about Mauldin’s credibility.

Thereafter, in reply to a question, the state informed the court that the defendant’s counsel had failed to appear on December 8 at a meeting scheduled for the purpose of disclosure. The state also informed the court that the photographic arrays had been available all day on Friday, December 9, and that defense counsel had not taken advantage of the opportunity to inspect them. Subsequently, defense counsel acknowledged that he had been aware that Mauldin would be a state’s witness from the time that he had filed an appearance in the case. He contended, however, that the “[p]hoto array casts a whole new light on the subject.”

At the commencement of trial on December 12, Maul-din testified as the state’s first witness. Over the defendant’s objection he made an in-court identification of the defendant. No testimony relating to the photographic identification was elicited, however. After Mauldin had nearly completed his testimony on direct examination, defense counsel stated that, at that point, he would “like to avail [himself] of the continuance.” He set forth two reasons for his request. He stated first, that he would like to photograph the crime scene prior to his cross-examination of Mauldin, and, second, that he needed time to investigate Mauldin.

In response, the trial court noted that no evidence of the photographic array had been offered and observed “that the matters that have been produced by the state through [Mauldin] were, in fact, discoverable as far back as the arrest of the defendant and that the suggestion of the court as to [a] reasonable continuance would be on the basis of a motion to suppress the photo array[s], which has not been offered . . . The court denied the defendant’s request for a continuance. Thereafter, defense counsel said that he “could probably work around the decision, [and] continue . . . the trial” as long as Mauldin was available to be recalled. When given assurance that Mauldin would be available, defense counsel stated, “Okay. Well, then I take an exception with the ruling and go on with the case.”

In his brief on appeal concerning this issue the defendant appears to argue that he was provided ineffective assistance of counsel rather than that he was the victim of an error by the trial court. A claim of ineffective assistance of counsel, however, is more properly pursued in a habeas corpus proceeding rather than on direct appeal. State v. Williamson, 206 Conn. 685, 706, 539 A.2d 561 (1988). State v. McIver, 201 Conn. 559, 568-69, 518 A.2d 1368 (1986); State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). The only issue to be resolved on the appeal of a trial court’s refusal to grant a request for a continuance is whether the court abused its discretion by denying the request.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921, reh. denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1964); State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985).” State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). “ Tt must be shown that the trial judge acted arbitrarily and substantially impaired defendant’s - ability to defend himself, before an appellate court wall conclude that the trial judge abused his discretion. The test is a stringent one.’ United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L. Ed. 2d 795 (1967).” State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). “ ‘The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request'is denied.’ Ungar v. Sarafite, supra, 589.” Id., 47-48. “The right of a defendant to have a continuance is not . . . absolute”-, State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974); and “[ejvery reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).

A review of the record does not reflect an abuse of discretion by the trial court in this instance. The two reasons cited by defense counsel in his request for a continuance failed to present the trial court with sufficient reason to postpone the proceedings. The request for a continuance in order to photograph the crime scene was patently tardy and it lay well within the discretion of the trial court to refuse a continuance on that ground. Defense counsel’s second reason, i.e., so that he could investigate Mauldin, was also belated. It is clear, from the affidavit accompanying the arrest warrant in this case, that Mauldin was the only eyewitness to the incident and that he could identify the defendant’s car and, quite probably, the defendant. It was obvious simply from reading the affidavit that, if the state were to have any case at all, it depended on Maul-din’s testimony. Defense counsel had access to that affidavit from the time that he filed an appearance. The request for time to investigate Mauldin at the trial stage, therefore, did not constitute a persuasive reason for a continuance. Furthermore, other than speculation on appeal, there is no reason to believe that the denial of the request impaired the defendant’s ability to present a defense. There is no merit to this claim of the defendant.

Ill

The defendant’s final claim is that the trial court erred by violating his constitutional right to a fair trial in its refusal to admit into evidence a photograph of the defendant standing beside the front porch at 483-485 Garden Street. Once again the defendant has constructed a constitutional mountain out of an evidentiary molehill. State v. Vitale, supra, 403; State v. Gooch, supra, 18; see Part I of this opinion, supra. The defendant, however, took an exception to the trial court’s ruling and we are therefore required to determine whether the court committed error by excluding the photograph.

This claim has its genesis in the testimony of a defense witness, Samuel Malcolm, an elderly man who lived at 481 Garden Street, next door to 483-485. Malcolm testified that he was awake in the early hours of the morning on June 9,1987, when he heard two loud explosions. He then looked from his window and saw that the porch at 483-485 Garden Street was on fire. Thereafter, he stated, he called the fire department and woke up the people in his house and at 483-485 Garden Street. He then stood on the front porch until the fire trucks arrived.

On redirect examination Malcolm testified that while on the porch he saw the “shadow” of a “short,” “little man” run around the corner of 483-485 Garden Street. He stated that he knew the person who cast the shadow was short because he “couldn’t see his head” above the front porch “railing.”

Later that same day, while the defendant was testifying, a photograph was offered into evidence that depicted the defendant standing directly next to, and a head above, the porch at 483-485 Garden Street. The photograph had apparently been taken on December 14, during the luncheon recess by the defendant’s counsel. The photograph.shows only the top portion of the defendant’s body and a very small section of the porch. The purpose of the offer, according to defense counsel, was to “buttress the testimony to show consistency with the testimony of Malcolm; he saw somebody go past the defendant’s porch who didn’t measure up to the height of the porch.” The obvious implication for the jury was that, if the defendant was taller than the porch “railing,’.’ a third person might have committed the crime.

The state objected to the defendant’s offer of the photograph on the ground that it did not accurately “reflect” Malcolm’s testimony because Malcolm had “never testified [that] the person he saw was right next to the building. He said he saw a silhouette and a shadow by the corner.” The trial court sustained the state’s objection.

“Rulings as to the admissibility of photographs are clearly within the discretion of the trial judge and will only be overturned upon a showing of abuse of discretion.” United States v. Akers, 702 F.2d 1145, 1149 (D.C. Cir. 1983); State v. Douglas, 203 Conn. 445, 454, 525 A.2d 101 (1987); Livingstone v. New Haven, 125 Conn. 123, 128, 3 A.2d 836 (1939); 29 Am. Jur. 2d, Evidence § 786. This record obviously reflects a great deal of disparity between the conditions under which the defendant’s photograph was taken and those described in Malcolm’s testimony. “Whether photographs ‘show proportions and relations sufficiently to be of value as evidence in the trial of a cause, is a preliminary question to be decided by the court, and as to which its decision can rarely be reviewed.’ Harris v. Ansonia, 73 Conn. 359, 364, 47 A. 672 (1900) . . . .” State v. Douglas, supra. Applying those rules to these facts we cannot conclude that the trial court abused the broad discretion vested in it when it excluded this particular photograph. United States v. Pagel, 854 F.2d 267, 272-73 (7th Cir. 1988). We, therefore, will not disturb its evidentiary ruling.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-lll (a) (1) provides in pertinent part: “arson in the first degree: class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building,, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”

       There were three apartments in the building; only one, however, was occupied on the morning of the fire. A family named Merritt lived in the first floor apartment. The Merritts were literally blown out of their beds by the explosion that preceded the fire.

       Mauldin initially gave the police the plate number 485EQS. The defendant’s plate number is actually 465ESO. There is a tag attached to the plate, however, that causes the “0” to resemble a “Q.” At trial Mauldin, in reply to the question, “Do you remember the numbers right now?” replied, “465ESQ.” He described the car as “[a]bout a ’74, ’75, lime, light green, Mercury Marquis.”

       The photograph showed the rear of the automobile and the license plate.

       The defendant concedes in his brief on appeal that these grounds for his objection were incorrect.

       Further, there was such an abundance of evidence linking the defendant to the automobile described by Mauldin that, even if the trial court erred in admitting the photograph, it is difficult to see how the defendant could possibly demonstrate that the evidentiary ruling was harmful. State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).

         The case had been expedited in response to the defendant’s motion for a speedy trial.

       Defense counsel claimed that, after the jury voir dire, he had gone to the address listed for Mauldin in the police reports, with an investigator and the defendant, to speak to Mauldin. There he encountered a man, who, he later told the court, he was 99 percent sure was Mauldin. The man, however, said that Mauldin lived at another address and closed the door. Mauldin denied ever having seen or spoken to defense counsel.

       The ruling of the trial court allowing Mauldin’s in-court identification of the defendant has not been made a subject of this appeal.

       The defendant’s counsel on appeal was not the trial counsel.

       Malcolm’s testimony is fragmented and difficult to follow. It is not clear from the transcript how he went about waking up the various people in the house. Nor is it clear how much time transpired while he was doing this.

       Nothing in relation to the subject of this testimony surfaced on either direct or cross-examination.

       What Malcolm described as a “railing” was actually the closure at the end of the porch. The porch did not have a “railing” per se.

       Another photograph was admitted into evidence depicting the porch sans defendant.