author: Peters, C. J.

text:
    Douglas Gaynor et ux. v. Union Trust Company
    (14001)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued September 27—
    decision released November 13, 1990

      Joanne S. Faulkner, with whom was John C. Wirz-bicki, for the appellants (plaintiffs).

      Anne R. Hoyt, with whom was Lisa Pacelle, for the appellee (defendant)^
   Peters, C. J.

This case concerns the propriety of the procedures used by a secured creditor to repossess and resell a used car after the consumer debtors’ failure to make timely instalment payments. The plaintiffs, Douglas L. and Lisa Gaynor, brought a four count action against the defendant, Union Trust Company, alleging violations of the Uniform Commercial Code (UCC), the Retail Instalment Sales Financing Act (RISFA), the Connecticut Unfair Trade Practices Act (CUTPA) and the Creditors’ Collection Practices Act (CCPA). The defendant counterclaimed to recover a deficiency judgment for the amount of the plaintiffs’ remaining indebtedness after due credit for the net proceeds of the resale. The trial court, Koletsky, J., rendered judgment for the defendant on the complaint and, in a diminished amount, on the counterclaim. In accordance with Practice Book § 4023, we transferred the plaintiffs’ appeal to this court, and now reverse in part.

It is undisputed that on August 26, 1986, the plaintiffs borrowed $7000 from the defendant in order to finance the purchase of a used car, a 1982 Pontiac, for $7200. As security for the loan, the plaintiffs gave the defendant a security interest in the car. The security agreement contained clauses purporting to authorize resale upon the plaintiffs’ default and to limit the implications of waiver of the defendant’s rights.

From the outset, the plaintiffs consistently made their instalment payments later than the schedule stipulated in the security agreement. One late payment check was subsequently returned for lack of sufficient funds. The defendant repeatedly telephoned the plaintiffs to advise them of their defaults and to request payment. In April, 1987, the defendant warned the plaintiffs by letter that their defaults put them at risk of repossession. A further conversation between the parties in early July resulted in a promise by the plaintiffs to make specified payments to render their account more current. Although the plaintiffs made the promised July payment, the defendant never received a promised $300 payment that was due on August l.

The defendant repossessed the car on August 16, 1987. Two days later, the plaintiffs received from the defendant a notice of repossession, describing their rights of redemption, as well as a notice that, on or after September 1, 1987, the car would be resold at a private sale. After soliciting six bids, all at wholesale, the defendant sold the car for $2000 to the highest bidder on September 16,1987. The defendant promptly notified the plaintiffs of the sale, the sales price, the costs claimed to have attended the repossession and resale, and the amount of the contract balance still claimed to be due, $4432.24.

The trial court concluded that the plaintiffs had failed to demonstrate any actionable deficiencies in the repossession or resale of their car, and accordingly rendered judgment in favor of the defendant on the complaint. On the counterclaim, the court found that the fair retail market value of the repossessed car was $3000, and that the defendant had failed to prove its claim for a repossession charge. It accordingly rendered judgment for the defendant in the reduced amount of $3232.24.

Only the plaintiffs have appealed. Although they do not deny their default in making instalment payments in a timely fashion, they continue to assert that the defendant wrongfully repossessed and resold their car. They maintain further that the defendant’s alleged misconduct entitles them to affirmative relief in the form of statutory damages and attorney’s fees.

I

The plaintiffs challenge the validity of the defendant’s repossession of their car on three grounds. They claim that: (1) the bank had no statutory right to repossess; (2) the bank could not reinstate any contractual right it might have possessed without giving the plaintiffs written notice to that effect; and (3) the bank’s notice of repossession did not comply with the statutory requirements contained in the UCC; General Statutes §§ 42a-9-504 and 42a-9-506; and in RISFA. General Statutes § 42-98. The trial court concluded to the contrary in large part because it found that the plaintiffs knew that they were “behind and continually behind in [their] payments.” It found further that the plaintiffs had not been lulled into any misapprehension by the defendant’s conduct and that the plaintiffs’ failure to pay $300 to the defendant on their overdue debt on the first of August triggered the repossession in accordance with the terms of their contract with the defendant. Finally, it held that the notice of repossession gave the plaintiffs fair notice that a private sale would be held on September 1 or thereafter, and that they then owed $785.09 plus the listed costs of repossession and storage. We agree with the trial court except for its resolution of the issue of the effect of inaccuracies in the notice of repossession concerning the defendant’s incidental costs of repossession and storage.

A

The plaintiffs’ claim that the defendant lacked statutory authority to repossess their car rests on their construction of the relevant provision of RISFA, General Statutes § 42-98 (a). The clause in the security agreement on which the defendant relied as authorizing repossession stated: “If you break any of your promises in this agreement, we can sell or otherwise get money for this collateral and apply the proceeds to the unpaid balance of this loan.” The plaintiffs do not contest the trial court’s finding that the plaintiffs in fact had notice of the defendant’s right to repossess. They maintain instead that, as a matter of law, this contract clause, because it does not refer expressly to “repossession” or “retaking,” violated the statutory mandate in § 42-98 (a) that limits a permissible retaking to nonperformance of a promise by a consumer buyer “the breach of which is by such contract expressly made a ground for the retaking of the goods.”

The question is whether the text of § 42-98 (a) supports the plaintiffs’ argument. It provides in relevant part: “When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof.” Although consumer legislation must be interpreted so as to implement its remedial purpose of protection for consumer buyers; Mack Financial Corporation v. Crossley, 209 Conn. 163, 166, 550 A.2d 303 (1988); Barco Auto Leasing Corporation v. House, 202 Conn. 106, 116, 520 A.2d 162 (1987); Rhodes v. Hartford, 201 Conn. 89, 95, 513 A.2d 124 (1986); Keyes v. Brown, 155 Conn. 469, 474, 232 A.2d 486 (1967); even such legislation cannot transcend its statutorily defined ambit. “ ‘The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation.’ Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1079 (1977) . . . .” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989). Significantly, the use of the disjunctive “or” between subparts of a statute indicates that the legislature intended its parts to be read separately, in the disjunctive. Bahre v. Hogbloom, 162 Conn. 549, 557, 295 A.2d 547 (1972); State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963).

In order for the plaintiffs to prevail, we would have to construe the “expressly made” clause in § 42-98 (a) as modifying all the antecedent clauses in the subsection. As the defendant correctly notes, however, subsection (a) requires a security agreement expressly to authorize repossession only with regard to the third contingency specified therein, a nonperformance by the buyer of “any promise.” The defendant’s linguistically logical construction finds statutory support in the text of § 42-98 (c), which expressly distinguishes between retakings premised upon default in payment or non-fulfillment of a condition, and retakings premised upon nonperformance “of any other promise for the breach of which such goods were retaken.”

We therefore construe § 42-98 (a) as requiring no special contractual language to communicate the consequences of a default in payments, such as occurred in this case, or a nonperformance of a condition. The legislature might logically have deemed it important to require a consumer contract expressly to give warning of the risk of retaking in the event of a failure to perform “any promise” because consumer buyers might otherwise not have understood that they might lose their collateral even though their payments were current and they had fulfilled all the conditions in their instalment contract. That is not this case. We conclude, accordingly, that the defendant had the statutory authority to retake the plaintiffs’ car.

B

The plaintiffs next claim that the defendant lost any right to repossession grounded in defaults on instalment payments because of its repeated acceptance of late payments over the lifetime of the security agreement. This pattern of behavior, according to the plaintiffs, constituted either a waiver of the defendant’s right to insist on timely payments or a course of conduct amounting to a modification of the terms of the agreement. See General Statutes § 42a-l-205. Under either theory, the plaintiffs contend that the defendant could not retake their car without first giving them written notice of its intent to reinstate the payment schedule contained in the security agreement.

The plaintiffs’ claim is difficult to square with two express provisions in the security agreement. One clause provided: “Waiver of Notice. If you do not repay this loan when it becomes due or do not keep your other promises in this agreement, we do not have to make a protest or give you any notice.” Another clause stated: “Delay in Enforcement. We can delay enforcing any of our rights without losing them. If on any occasion we should waive one of our rights, it does not necessarily mean that we will waive that right in the future. We will still have that right.” This court has upheld the enforceability of such clauses when a landlord sues to regain possession from a defaulting tenant. S.H.V.C., Inc. v. Roy, 188 Conn. 503, 505-11, 450 A.2d 351 (1982).

The plaintiffs maintain, however, that, particularly in the context of consumer transactions, we should adopt the position taken in a number of other jurisdictions in which courts have deemed it inconsistent for a creditor to elect to continue a contract in force, by accepting late payments, while simultaneously enforcing a right to retake. See, e.g., Ford Motor Credit Co. v. Waters, 273 So. 2d 96, 99-100 (Fla. App. 1973); Barrier v. Marine Midland Trust Co., 263 Md. 596, 608-11, 284 A.2d 418 (1971); Cobb v. Midwest Recovery Bureau, 295 N.W.2d 232, 236-38 (Minn. 1980); Nevada National Bank v. Huff, 94 Nev. 506, 512-14, 582 P.2d 364 (1978); Slusser v. Wyrick, 28 Ohio App. 3d 96, 97-98, 502 N.E.2d 259 (1986); Fontaine v. Industrial National Bank, 111 R.I. 6, 11-12, 298 A.2d 521 (1973); Ford Motor Credit Co. v. Washington, 573 S.W.2d 616, 618 (Tex. Civ. App. 1978).

The essence of the plaintiffs’ contention is that no creditor should be allowed to invoke formal contractual provisions that a consumer debtor had reason to believe would not be enforced. Whatever the merits of this legal principle might be in the abstract, it cannot prevail in light of two crucial findings of fact by the trial court in this case. One finding is that the repossession was precipitated by the defendant’s failure to receive a $300 payment that the plaintiffs had expressly agreed to pay on August 1, 1987, in accordance with a work-out plan to make their indebtedness more current. This case therefore cannot be characterized as one in which a creditor without warning retakes goods following its silent acceptance of one or more belated instalment payments on the part of the debtor. The second finding is that the plaintiffs were not lulled into any misapprehensions about the jeopardy that they faced because of their lateness in making payments. We conclude, accordingly, that the defendant had the contractual authority to repossess the plaintiffs’ car.

C

The plaintiffs’ final two arguments about the validity of the defendant’s repossession challenge the sufficiency of the notice that the defendant sent to the plaintiffs after the repossession. The timeliness of the notice is not at issue. The plaintiffs contend, instead, that the content of the notice violated the relevant provisions of (1) the Uniform Commercial Code and (2) the Retail Instalment Sales Financing Act, principally because it did not accurately describe the plaintiffs’ right of redemption.

The notice that the plaintiffs received consisted of two letters dated August 17, 1987. The first letter advised the plaintiffs that they could redeem their car by paying the currently accrued indebtedness of $785.09 plus the expenses of repossession and storage, if they acted by September 1,1987, and informed them that thereafter, if their default continued uncured, they would be liable for the full accelerated unpaid balance of $6135.24 plus expenses. The second letter advised them that, on or after September 1,1987, the defendant would sell their car at a private sale to be held at a designated garage. The defendant actually sold the car, at a private sale, on September 16, 1987.

The plaintiffs contend that this notice was misleading because it did not inform them that, even after September 1, they could redeem the car for the accelerated balance of $6135.24 plus expenses. An underlying premise of this argument is that the applicable statutes require notice of such a right to redeem. The Uniform Commercial Code, in General Statutes § 42a-9-504 (3), requires only that “reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.” The UCC’s redemption section, General Statutes § 42a-9-506, empowers a debtor to redeem without imposing any further notice requirement on the secured creditor. The Retail Instalment Sales Financing Act, in General Statutes § 42-98 (c), describes the notice that must be provided to a retail buyer to enable him to exercise his right to redeem, within a fifteen day statutory redemption period, upon payment or tender of the unaccelerated amount due plus expenses. Upon expiration of the § 42-98 (c) redemption period, § 42-98 (d) merely requires the secured creditor to sell the goods within 165 days, and, in the event of a private sale, to provide “written notice of . . . the time after which any private sale or other intended disposition is to be made.” These notice requirements, with which the defendant complied, do not envisage that the secured creditor must provide specific guidance for the unlikely event that a consumer debtor who could not redeem his property by paying his unaccelerated debt at the time of the repossession would be in a position, shortly thereafter, to repay his larger accelerated debt.

The plaintiffs seek to sidestep these statutory impediments to their argument by focusing on the particular language of the statement of their redemption rights, in the letters of August 17, 1987, as being inherently misleading. The plaintiffs maintain that the defendant misled them about their post-September 1 redemption rights because of the manner in which the defendant advised them of their pre-September 1 redemption rights. They cite a number of judicial decisions in which courts, on the particular facts of the cases before them, have found redemption notices to be misleading and hence unenforceable. Bradford v. General Electric Credit Corporation, 183 Ga. App. 782, 782-83, 359 S.E.2d 757 (1987); Topeka Datsun Motor Co. v. Stratton, 12 Kan. App. 2d 95, 103-104, 736 P.2d 82 (1987); First National Bank of Maryland v. DiDomenico, 302 Md. 290, 295-97, 487 A.2d 646 (1985). To the extent that an inquiry into the misleading nature of a particular notice is inherently factual, these cases are distinguishable because of the trial court’s contrary findings. The court expressly found that the notice sent by the defendant contained no material misstatement and that the plaintiffs had no intent to redeem the property, either for the unaccelerated or the accelerated amount of the debt.

In principle, furthermore, the plaintiffs’ claim that they were entitled to proper notice of “the time frame for redemption” is inconsistent with the established wisdom that, for a private sale, a secured creditor has no obligation to give notice of the date of the contemplated disposition of the secured collateral. See, e.g., Matter of Excello Press, Inc., 890 F.2d 896, 903 (7th Cir. 1989) (under New York law); Ford Motor Credit Co. v. Solway, 825 F.2d 1213, 1218-19 (7th Cir. 1987) (under Illinois law); Piper Acceptance Corporation v. Yarbrough, 702 F.2d 733, 735 (8th Cir. 1983) (under Arkansas law); Brown v. Ford, 280 Ark. 261, 264, 658 S.W.2d 355 (1983); Western National Bank of Colorado Springs N.A. v. VFW Post 8103, 660 P.2d 919, 920 (Colo. App. 1983); Ford Motor Credit Co. v. Jackson, 126 Ill. App. 3d 124, 126, 466 N.E.2d 1330 (1984); Allard v. Ford Motor Credit Co., 139 Vt. 162, 166, 422 A.2d 940 (1980). Only notification of the date when their car would be sold would inform the plaintiffs of the time when their right to redeem would expire. In the absence of a statutory requirement for such notification, either under the UCC or under RISFA, we conclude that the trial court correctly held that the defendant’s repossession notice reasonably advised the plaintiffs of their redemption rights.

The plaintiffs contend, secondarily, that the repossession notice violated § 42-98 (c) because it inaccurately listed the costs of repossession and storage. In its first letter of August 17, 1987, the defendant described the charges the plaintiffs would have to pay in order to cure their default and to redeem their property. In addition to their unpaid balance then due, the plaintiffs were informed they would have to pay “all expenses of repossession, in the amount of $200.00, and storage, in the amount of $5.00 per day.” The trial court found that, although $200 would have been a reasonable charge for repossession, the defendant had presented no evidence to that effect at trial, and the court therefore disallowed recovery for that charge in the defendant’s claim for a deficiency judgment. The court further acknowledged that the storage charge was inaccurately reported because, although $5 represented the amount previously charged the defendant by the repos-sessor, the actual billing in this case amounted to only $3 a day. The court also found, however, that the facts stated in the first August 17 letter were honestly believed by the defendant to be accurate, and that the plaintiffs were benefited by receiving a subsequent credit for the reduced storage charges when the defendant learned of them as a result of an invoice subsequently tendered by the repossessor on September 11, 1987. The court therefore concluded that the defendant had complied with the requirement of § 42-98 (c) that the consumer buyer receive “a written statement of the unaccelerated sum due under [the instalment] contract and the actual and reasonable expense of any retaking and storing.” The plaintiffs do not contest the trial court’s factual finding that the deficiencies in the notice sent to them were inadvertent and in good faith, but they contend that the requirements of § 42-98 (c) do not contain a good faith exception. We agree with the plaintiffs.

In consumer transactions, strict compliance with statutory provisions that prescribe the informational content of retail instalment contracts is mandatory and is not excused by inadvertence. Mack Financial Corporation v. Crossley, 209 Conn. 163, 166-67, 550 A.2d 303 (1988); Barco Auto Leasing Corporation v. House, 202 Conn. 106, 118, 520 A.2d 162 (1987); Keyes v. Brown, supra, 474-75. The governing statute, § 42-98 (c), expressly provides the appropriate remedy: “For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure.” Although the trial court did not find that the plaintiffs had sustained actual damages, the defendant nonetheless statutorily forfeited its right to recover both its repossession and its storage costs because of the inaccuracy of its notice. The trial court should have reduced the defendant’s recovery to reflect this statutory mandate in its entirety.

The plaintiffs’ brief further suggests that, in addition to forfeiting recovery of the expenses of retaking and storage, as specified in § 42-98 (c), the defendant is also obligated to pay a penalty by way of minimum damages under § 42-98 (i). That subsection provides that “[i]f the holder of the [instalment] contract fails to comply with the provisions of subsections (c), (d), (e), (f), (g) and (h), after retaking the goods, the retail buyer may recover from the holder of the contract his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract.” The record is unclear how, if at all, this issue was raised at trial since the issue is not addressed in the trial court’s oral memorandum of decision, for which no further articulation was sought.

For inadvertent misstatements in a notice of retaking, such as occurred in this case, we are persuaded that the controlling provision is not the generally applicable sanction provided in § 42-98 (i) but is rather the specifically applicable sanction contained in § 42-98 (c). “ ‘It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, 214 A.2d 354 [1965]. Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision. Kelly v. Dewey, 111 Conn. 281, 292, 149 A. 840 [1930].’ ” Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979). We therefore conclude that the defendant need not pay the penalties stipulated by § 42-98 (i).

II

The plaintiffs also challenge the propriety of the resale of their car by the defendant and the deficiency judgment that arose therefrom. They maintain that the resale conducted by the defendant was not commercially reasonable under the standards of the UCC, General Statutes § 42a-9-504 (3), and of RISFA, General Statutes § 42-98, and that the post-resale notice did not comply with the requirements of RISFA, General Statutes § 42-98 (e). We disagree.

A

A secured creditor’s disposition of retaken property after default must comply with § 42a-9-504 (3), which requires that “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” The defendant in this case solicited six bids, all at wholesale, and accepted the highest. The trial court found that the defendant had “made a reasonable effort to get the property sold as quickly as possible as best [it] could.” The court determined, by way of judicial notice, that it would not have been cost-efficient for the defendant, a lending institution, to maintain an office where potential buyers could inspect the cars it repossessed, or to establish a retail outlet for which walk-in buyers could be solicited. The court concluded, accordingly, that the defendant had met its burden of proving compliance with § 42a-9-504.

As a general matter, the plaintiffs maintain that the defendant did not introduce sufficient evidence at trial to prove the “commercial reasonableness” of its resale. In Connecticut Bank & Trust Co. v. Incendy, 207 Conn. 15, 28, 540 A.2d 32 (1988), we held that such proof generally requires “evidence of such things as the amount of advertising done, the number of people contacted, normal commercial practices in disposing of the particular collateral, the length of time between the repossession and the sale, whether any deterioration in the collateral has occurred, the number of bids received, and the price obtained.”

In outlining the contours of “commercial reasonableness” in Incendy, we did not intend to establish strict evidentiary standards that must invariably be met in each and every case. The trial court was entitled to find, from the evidence adduced at trial, that the defendant had made a good faith effort to procure a reasonable number of bids for the car which, considering its then condition, was sold for a reasonable price. Under General Statutes § 42a-9-507 (2), “[t]he fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.” The reasonableness of a commercial resale is ordinarily a question of fact. Gulf Homes, Inc. v. Goubeaux, 124 Ariz. 142, 144, 602 P.2d 810 (1979); John Deere Leasing Co. v. Fraker, 395 N.W.2d 885, 887 (Iowa 1986); Westgate State Bank v. Clark, 231 Kan. 81, 91, 642 P.2d 961 (1982); Kearney State Bank & Trust Co. v. Scheer-Williams, 229 Neb. 705, 715, 428 N.W.2d 888 (1988); Lowden Investment Co. v. General Electric Credit Co., 103 Nev. 374, 377, 741 P.2d 806 (1987); Lindberg v. Williston Industrial Supply Corporation, 411 N.W.2d 368, 374 (N.D. 1987); Mid-Continent Refrigerator Co. v. Carpenter, 287 S.C. 624, 625, 340 S.E.2d 559 (1986); First Bank of South Dakota v. VonEye, 425 N.W.2d 630, 636 (S.D. 1988); Daniell v. Citizens Bank, 754 S.W.2d 407, 410 (Tex. Civ. App. 1988); Appleton State Bank v. Van Dyke Ford, Inc., 90 Wis. 2d 200, 205, 279 N.W.2d 443 (1979). We decline to hold, as a matter of law, that every private resale must be advertised or that a lending institution’s private resale at wholesale is necessarily commercially unreasonable. The present record adequately supports the trial court’s finding of commercial reasonableness in the circumstances of this case.

The plaintiffs also assert that it was inconsistent for the court to have found the resale to be commercially reasonable when it had concluded that the defendant had failed to prove the reasonableness of the costs of its repossession. To the extent that this assertion relies on § 42-98 (c), our prior discussion indicates that the sanction contained in that subsection is an appropriate remedy for the defendant’s default. Notably, neither subsection (c) nor the remainder of § 42-98 expressly links a failure to prove pre-resale repossession costs with the commercial reasonableness of a subsequent resale. Furthermore, although § 42-98 (d) makes a timely resale compulsory, it contains no specific requirements about the manner in which repossessed goods must be resold, and thereby invokes, by default, the provisions of the UCC. General Statutes § 42-83. Accordingly, we concur in the trial court’s ruling that the defendant’s resale was commercially reasonable.

B

An instalment creditor, after repossession and resale, must give consumer debtors a notice of distribution of proceeds that complies with RISFA. The notice in this case advised the plaintiffs that their car had been sold for $2000, and that this amount had been reduced by $200 as repossession costs, $97 as expenses, for cleaning and storage, leaving a balance of $1703 as the proceeds of the sale calculated according to § 42-98 (e). The notice then invoked § 42-98 (g) as authority for whatever deficiency might be due the defendant: “If there was a deficiency, as defined in section 42-98 (g) of the Connecticut General Statutes, you will be held liable for paying such deficiency in an amount equal to that which is provided for in said statutes.” The notice then indicated a deficiency, payable by the customer, in the amount of $4432.24. The trial court, although it inferentially found that the notice had complied with § 42-98 (e), also found that the fair cash retail market value of the car was $3000. Accordingly, it reduced the amount of the defendant’s deficiency claim by the amount of $1200, representing $1000 for the increased value of the car and $200 for the unproved repossession cost, leading to a deficiency judgment of $3232.24.

The plaintiffs contend that RISFA requires an instalment creditor, in its notice of distribution of proceeds, to inform a consumer debtor of “either the amount paid for such goods at [resale] or the fair cash retail market value of the goods at the time of repossession, whichever is greater . . . .” (Emphasis added.) General Statutes § 42-98 (d). This part of the subsection, in stating what the proceeds of the resale “shall be considered to be” was, however, designed to describe, substantively, how the creditor proposes to allocate resale proceeds. Although the subsection elsewhere requires such a creditor to give pre-resale notice, it does not prescribe the terms of post-resale notice. Post-resale notices are governed instead by § 42-98 (e), which merely requires an instalment creditor, “[w]ithin thirty days of the resale . . . [to] give the retail buyer a written statement itemizing the disposition of the proceeds.”

In our view, § 42-98, when read in its entirety, permits a creditor to submit a notice of distribution that accurately reflects a good faith reasonable estimate of costs and receipts, without having to anticipate what a trier of fact may subsequently determine the fair cash retail value of the repossessed goods to have been. This construction finds support not only in subsection (e) but also in the provisions of subsections (f) and (g). These subsections limit an instalment creditor’s substantive recovery by requiring the repossessed goods to be valued, as a minimum, in accordance with the statutory definition of fair market value. This statutory scheme, like the final sentence of § 42-98 (d), contemplates the regulation of the recovery of deficiency judgments rather than the regulation of deficiency notices. The trial court therefore correctly ruled that the defendant’s notice of disposition did not violate RISFA.

Ill

The plaintiffs finally assert claims for relief under two additional statutes, the Creditors’ Collection Practices Act (CCPA) and the Connecticut Unfair Trade Practices Act (CUTPA). The trial court, with little elaboration, found no violation of either statute. It stated, however, that it found nothing unfair, deceptive, or oppressive, and no violation of the public policy of the state, in the conduct of the defendant in this case.

The plaintiffs raise two issues under CCPA, General Statutes §§ 36-243a through 36-243c and § 36-243c-61 of the Regulations of Connecticut State Agencies, which we decline to address because neither one is properly before us. First, the plaintiffs advert generally to the statute as having been violated by the documents sent them by the defendant in this case. They fail to offer any reasoned explanation why any of these documents should be deemed, despite the trial court’s contrary findings, to fall within the ambit of § 36-243b, which prohibits a creditor’s use of “any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect a debt.” This issue is not sufficiently briefed to warrant our consideration. Cohen v. Security Title & Guaranty Co., 212 Conn. 436, 436-37 n.1, 562 A.2d 510 (1989); Aillon v. Meachum, 211 Conn. 352, 356 n.4, 559 A.2d 206 (1989). Second, the plaintiffs complain of the defendant’s alleged noncompliance with a notice requirement contained in § 36-243c-61 of the Regulations of Connecticut State Agencies, under which debtors must be informed that this is an effort “to collect a debt and that any information obtained will be used for that purpose.” The defendant correctly notes that the plaintiffs abandoned this issue before trial by failing properly to brief it either in connection with their motion for summary judgment or thereafter.

The plaintiffs’ CUTPA claims; General Statutes §§ 42-110a through 42-110q; are only cognizable if CUTPA applies to banks and banking activities. We need not resolve that issue, however, because the plaintiffs have premised their claims on the defendant’s alleged violations of the UCC, RISFA and CCPA. The only documented noncompliance with these statutes on the present record is the defendant’s inadvertent failure to provide the plaintiffs a fully accurate redemption notice as required by § 42-98 (c). For the same reason that we have concluded that this deviation from the statutory requirement does not warrant the imposition of § 42-98 (i) sanctions, we hold that it does not automatically constitute a CUTPA violation. In light of the trial court’s finding that the defendant’s conduct was not in fact unfair, deceptive, or oppressive, we conclude that the plaintiffs have not established their CUTPA claims.

The judgment is reversed in part and the case is remanded with direction to correct the judgment by subtracting from the defendant’s recovery on its counterclaim the amount of $97 for the expenses of storage.

In this opinion the other justices concurred.

       The dealer that sold the car to the plaintiffs erroneously represented the car to be a 1983 rather than a 1982 Pontiac. The plaintiffs conceded in oral argument that the defendant bore no responsibility for this error.

       Although the plaintiffs claimed that they had mailed a check for $300 in timely fashion, the trial court did not decide whether the check had in fact been sent.

       At trial the plaintiffs also maintained that the repossession of their ear was a breach of the peace. The trial court ruled against this contention, which has not been further pursued on appeal.

       General Statutes § 42a-9-504 provides in relevant part: “secured party’s right to dispose op collateral after default; effect of disposition. (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to article 2. The proceeds of disposition shall be applied in the order following to (a) the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party; (b) the satisfaction of indebtedness secured by the security interest under which the disposition is made; (c) the satisfaction of indebtedness secured by any subordinate security interest in the collateral if written notification of demand therefor is received before distribution of the proceeds is completed. . . .
      “(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus and, unless otherwise agreed, the debtor is liable for any deficiency ....
      “(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent. . . .”
      General Statutes § 42a-9-506 provides: “debtor’s RIGHT TO redeem COLLATERAL. At any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 42a-9-504 or before the obligation has been discharged under section 42a-9-505 (2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorney’s fees and legal expenses.”

       General Statutes § 42-98 provides in relevant part: “foreclosure, (a) REPOSSESSION. When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof. Unless the goods can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein contained shall be construed to authorize a violation of the criminal law. In the case of repossession of any motor vehicle without the knowledge of the retail buyer, the local police department shall be notified of such repossession immediately thereafter. . . .
      “(c) redemption. If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken. During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in such contract as precedent to the retail buyer’s continued possession of such goods, or upon performance or tender of performance of any other promise for the breach of which such goods were retaken, and upon payment of the actual and reasonable expenses of any retaking and storing, may redeem such goods and become entitled to take possession of the same and to continue in the performance of such contract as if no default had occurred. The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing. For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure. If such goods are perishable so that retention for fifteen days as herein prescribed would result in their destruction or substantial injury, the provisions of this subsection shall not apply and the holder of the contract may resell the goods immediately upon such retaking.
      “(d) compulsory resale. If the retail buyer does not redeem such goods within fifteen days after the holder of the contract has retaken possession, the holder of the contract shall sell such goods at public or private sale which sale may be held not less than fifteen days and shall be held not more than one hundred eighty days after the retaking. . . . The holder of the contract shall give the retail buyer not less than ten days’ written notice of the time and place of any public sale, or the time after which any private sale or other intended disposition is to be made, either personally or by registered mail or by certified mail receipted for on mailing directed to the retail buyer at his last-known place of business or residence. . . . The proceeds of the resale shall be considered to be either the amount paid for such goods at such sale or the fair cash retail market value of such goods at the time of repossession, whichever is the greater, except as otherwise provided in subsection (g) of this section.
      “(e) proceeds of resale. Proceeds of the resale shall be applied (1) to the payment of the actual and reasonable expenses thereof, (2) to the payment of the actual and reasonable expenses of any retaking and storing of said goods, (3) to the satisfaction of the balance due under the contract. Within thirty days of the resale, the holder of the contract shall give the retail buyer a written statement itemizing the disposition of the proceeds. Any sum remaining after the satisfaction of such claims shall be paid to the retail buyer.
      “(f) deficiency on resale. Notwithstanding that the proceeds of the resale are not sufficient to defray the actual and reasonable expenses thereof, and also such actual and reasonable expenses of any retaking and storing of such goods and the balance due under the contract, the holder of the contract may not recover the deficiency from the retail buyer . . . except as provided in subsection (g) of this section.
      “(g) fair market value. If the goods retaken is a motor vehicle the aggregate cash price of which was more than two thousand dollars, the prima facie fair market value of such motor vehicle shall be one-half of the sum of the average trade-in value plus the average retail value of such motor vehicle as stated in the National Automobile Dealers Association Used Car Guide, Eastern Edition, as of the date of repossession. In the event that the value of such motor vehicle is not stated in such publication, then the fair market value at retail minus the reasonable costs of resale shall be determined by the court. The prima facie evidence of fair market value of such motor vehicle so determined may be rebutted only by direct in-court testimony. If such value of the motor vehicle is less than the balance due under the contract, plus the actual and reasonable expenses of the retaking of possession, the holder of the contract may recover from the retail buyer ... as a deficiency, the amount by which such liability exceeds such fair market value, as defined in this subsection. If the actual resale price received by the holder exceeds such fair market value, as defined in this subsection, the actual resale price shall govern.
      “(i) recovery of part payments. If the holder of the contract fails to comply with the provisions of subsections (c), (d), (e), (f), (g) and (h), after retaking the goods, the retail buyer may recover from the holder of the contract his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract.”

       General Statutes § 42a-l-205 provides in relevant part: “course of DEALING AND USAGE OF TRADE. . . .
      “(3) A course of dealing between parties and any usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware give particular meaning to and supplement or qualify terms of an agreement.”

       Douglas Gaynor, one of the plaintiffs, testified at trial about a conversation with an officer of the defendant in July, 1987. At that time, he had agreed to make payments to “catch up on the back monies that were owed. . . . The arrangement was made that I would be sending them three hundred dollars the first week of the month . . . .”

       The letter read as follows:
      August 17, 1987
      “Mr. Douglas Gaynor Ms. Lisa Gaynor 152 Michigan Drive Groton, CT 06340
      Re: 1982 Pontiac
      Serial # 1G2AF19RXCG519759
      Dear Mr. and Ms. Gaynor,
      This is to advise you that the above described vehicle has been repossessed due to default of your April 25,1987 installment and all successive installments that were due and payable in the amount of $225.01 each.
      If you wish to retain your right to redeem said vehicle, you must pay all expenses of repossession, in the amount of $200.00, and storage, in the amount of $5.00 per day, plus the unaccelerated balance due, in the amount of $785.09. Said unaccelerated balance due consists of all past due installment payments, plus any late charges if applicable. If all of the aforesaid expenses are paid within fifteen days of the retaking of said vehicle, and all events of default are cured, you may redeem such vehicle and become entitled to take possession of same and to continue in the performance of your security agreement as if no default had occurred.
      If all events of default are not cured within fifteen days of said retaking, under the terms and conditions contained in the security agreement between you and Union Trust Company, dated August 12,1986, we will declare the full unpaid balance, in the amount of $6,135.24, plus all expenses of repossession and storage, due by September 1,1987, otherwise, this vehicle will be sold.
      Very truly yours,
      /s/A. M. DeMar
      Collection Manager
      AMD/vip
      CERTIFIED MAIL RET. REC. REQ.”

       The notice of private sale read as follows:
      “NOTICE OF PRIVATE SALE
      August 17, 1987
      Mr. Douglas Gaynor
      Ms. Lisa Gaynor
      152 Michigan Drive
      Groton, CT 06340
      Notice is hereby given that on or after September 1,1987 the undersigned will sell at private sale the following:
      -1982 Pontiac
      -Serial # 1G2AF19RXCG519759
      The goods to be sold are located at and the sale will take place at:
      -Coastal Recovery, Inc.
      -86 Windy Hill Road Westbrook, CT 06498
      The above described goods are held by the undersigned as collateral securing indebtedness and obligations of:

        -Douglas Gaynor
      -Lisa Gaynor
      152 Michigan Drive
      Groton, CT 06340
      The undersigned is selling the above described goods pursuant to Sections 42a-9-504 and 43-98 of the Connecticut General Statutes, which provide for the sale and disposition of collateral by a secured party following default by a debtor.
      UNION TRUST COMPANY
      By: /s/A. M. DeMar
      A. Michael DeMar
      Collections Manager
      CERTIFIED MAIL
      RETURN RECEIPT REQUESTED”

       The car had approximately 79,500 miles on its odometer when it was repossessed. The evidence regarding the car’s condition at repossession was inconsistent. The named plaintiff, Douglas Gaynor, testified that the car was “in excellent condition.” One used car dealer who had bid unsuccessfully on the car testified that it was in “deplorable” condition; that it had an oil leak, two holes in the rear deck from which stereo speakers had been removed, and that it was filthy and in need of rear shocks and paint. The used car dealer who purchased the car from the bank testified that the car was worth approximately $500 less than its $4000 book value because it had some cosmetic flaws and required some mechanical repairs.

       Although the legislature could'have imposed more stringent ground rules for resales of consumer goods, it chose instead, in General Statutes § 42-98 (d) and (g), discussed infra, to limit the amount of a consumer buyer’s exposure to a deficiency judgment by requiring a credit either for the actual resale value of the goods resold, or for their fair retail value, whichever is the greater. A consumer buyer who does not redeem his property is thus not likely to be injured by an otherwise commercially reasonable resale that occurs at wholesale rather than at retail.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Virginius B. Lougee v. Jeannie B. Grinnell
    (13937)
    Shea, Glass, Covello, Borden and P. X. Hennessy, Js.

      Argued October 3—
    decision released November 20, 1990

      Francis H. Morrison III, with whom were Ruth Kurien and, on the brief, Mary Ellen C. Whiteman, for the appellant (petitioner).

      Irving H. Perlmutter, with whom was Arthur R. Almquist, pro hac vice, for the appellee (respondent).
   Glass, J.

This case concerns the trial court’s denial of a motion to quash a deposition subpoena and its refusal to issue a protective order despite the claim of the petitioner, Virginius B. Lougee, that the information sought by the respondent, Jeannie B. Grinnell, was immaterial and unnecessarily duplicative. The court ruled that the statutory criteria for issuing a deposition subpoena had been satisfied and that Lougee had not shown good cause as to why he should not be deposed. We affirm the judgment of the trial court.

The relevant procedural history of this case is as follows. Grinnell is the plaintiff in an action brought in Texas against the American Tobacco Company (American). In that action, Grinnell alleges that her husband died of lung cancer caused by smoking cigarettes produced by American. Lougee was employed by American from 1950 to 1965 as an engineer and master mechanic prior to serving as American’s chief executive officer (CEO) from 1981 to 1985, when he retired.

During his tenure as CEO, Lougee was responsible for American’s policy on issues of “smoking and health.” Consequently, in responses to Grinnell’s interrogatories he was designated by American as one of four individuals once holding policy-making positions and having the most knowledge regarding the chemical composition of certain cigarettes. Lougee may be the only one of these individuals presently alive.

As a result of American’s designation, Grinnell filed a deposition notice in her Texas action which was directed to American but sought Lougee’s testimony. The Texas trial court determined that American could not be compelled to produce Lougee for a deposition because Lougee was no longer an employee of American. Grinnell then hired a Connecticut attorney to subpoena Lougee to appear at a deposition in Connecticut. Lougee moved to quash the subpoena. The trial court, after determining that Grinnell failed to apply for the subpoena as required by General Statutes § 52-148e (f), granted the motion without prejudice.

On October 20,1989, Grinnell obtained an order from the District Court of Jefferson County, Texas, commissioning a Connecticut notary to take the deposition of Lougee, “a material witness,” in Stamford, Connecticut. On October 27,1989, Grinnell applied to the Connecticut Superior Court for a subpoena requiring Lougee to appear at the Stamford deposition. Lougee was served with the subpoena in Darien, Connecticut.

Lougee promptly moved to quash the subpoena and for a protective order, arguing that because the Texas court had recently granted summary judgment in favor of American on all of Grinnell’s post-1965 claims, and because Lougee was responsible for American’s policy on smoking and health issues only from 1981 to 1985: (1) the information sought by Grinnell was irrelevant; and (2) the deposition was unreasonable, oppressive and sought duplicative testimony. After a hearing, the trial court granted Grinnell’s deposition subpoena application, denied Lougee’s motion to quash the subpoena and issued an order requiring Lougee to appear at the Stamford deposition.

Lougee appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. On appeal, Lougee claims that the trial court should not have denied his motion to quash Grinnell’s deposition subpoena and for a protective order because: (1) the information sought was not material to a pending action; and (2) the information sought was unnecessarily duplicative. We disagree.

I

Before addressing the merits of this appeal, we must determine whether the appeal is properly before this court. An order issued upon a discovery motion in a civil case does not ordinarily constitute an appealable final judgment. Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987). The discovery order appealed in this case, however, was not rendered in the context of a civil action pending in Connecticut. Compare Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 429 A.2d 478 (1980). In this case, the sole judicial proceeding instituted in Connecticut concerned the propriety of Grinnell’s deposition subpoena, a proceeding that “will not result in a later judgment from which [Lougee] can then appeal. Thus, this appeal falls within the first prong of the test of finality of judgment stated in State v. Curdo, 191 Conn. 27, 31, 463 A.2d 566 (1983): ‘(1) where the order or action terminates a separate and distinct proceeding.’ ” Commissioner of Health Services v. Kadish, 17 Conn. App. 577, 578 n.1, 554 A.2d 1097 (1989). Because the separate and distinct judicial proceeding concerning Grinnell’s deposition subpoena terminated when the trial court issued the orders appealed, Lou-gee has appealed from a final judgment, and we will address his appeal on the merits.

II

Lougee’s first claim is that the trial court should not have denied his motion to quash Grinnell’s deposition subpoena and for a protective order because the information she seeks is not material to the Texas action. In support of his claim, Lougee points out that on April 11,1989, the Texas trial court granted summary judgment in favor of American on all of Grinnell’s post-1965 claims. Since only those claims for the period ending December 31, 1965, remain viable, and since his knowledge derives from the years 1981 to 1985, Lou-gee contends that his testimony is immaterial to the legal issues remaining in the Texas action. Lougee also maintains that he acquired no direct knowledge specific to Grinnell’s decedent while he was CEO for American.

At the outset, we note that the limited statutory requirements for the issuance of a subpoena for the taking of a deposition to be used in a foreign civil action have been met in this case. General Statutes § 52-148e (a) provides in relevant part that “[e]ach judge or clerk of any court, justice of the peace, notary public or commissioner of the superior court in this state, may issue a subpoena, upon request, for the appearance of any witness before him to give his deposition in a civil action ... if the party seeking to take such person’s deposition has complied with the provisions of sections 52-148a and 52-148b . . . .” The provisions of §§ 52-148a and 52-148b have no relevance to this case, and Lou-gee does not contest the fact that an authorized official issued Grinnell’s deposition subpoena.

In addition, § 52-148e (f) provides in pertinent part that “[deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action . . . pending in any court ... of any other state ... on application of any party to such civil action. . . .” It is undisputed that Grinnell is a party to a civil action pending in Texas where Lougee’s deposition is to be used in evidence, and that Lougee is living in Connecticut.

Despite Grinnell’s compliance with § 52-148e on its face, Lougee urges us to overturn the trial court’s rulings on the ground that his testimony is immaterial to the legal issues remaining in the Texas action. Practice Book § 218, however, liberally permits discovery of information “material to the subject matter involved in the pending action . . . .” (Emphasis added.) Information material to the subject matter of a lawsuit certainly includes a broader spectrum of data than that which is material to the precise issues raised in the pleadings. Accord In the Matter of Surety Assn. of America, 388 F.2d 412, 414 (2d Cir. 1967). Thus, the fact that the issues in Grinnell’s action relate to a time period ending before Lougee became CEO for American does not necessarily render his knowledge immaterial to the Texas lawsuit.

Further, because the role of Connecticut courts in the Texas action is confined to supervising a deposition, we decline to speculate upon whether the information Lougee possesses is actually immaterial to the subject matter of that action. See Horizons Titanium Corporation v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961); E.I. duPont de Nemours & Co. v. Deening Milliken Research Corporation, 72 F.R.D. 440, 442-43 (D. Del. 1976). It may well be that Lougee lacks the information that Grinnell desires, but Grinnell need not blindly accept Lougee’s claimed lack of knowledge as reported by his attorney. Grinnell is entitled to test that claim by deposing Lougee, and any objections raised by Lougee can adequately be preserved on the record of the deposition. See Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140, 143 (D. Mass. 1987); Amherst Leasing Corporation v. Emhart Corporation, 65 F.R.D. 121, 122-23 (D. Conn. 1974). We are satisfied that the Texas court will thereafter determine the evidentiary issue of materiality presented here, when and if Lougee’s deposition, or any part of it, is offered into evidence in the Texas action.

Ill

Lougee next claims that the trial court should not have denied his motion to quash Grinnell’s deposition subpoena and for a protective order because the information she seeks is unnecessarily duplicative. Specifically, he claims that Grinnell now possesses the transcript of Lougee’s testimony from an unrelated “smoking and health” case previously litigated in New Jersey, as well as depositions taken from Robert Hei-mann, CEO at American from 1969 to 1980, and Preston H. Leake, current director of research and development. Lougee notes further that American has offered to stipulate that its position on “smoking and health” issues remains the same as that stated by both Lougee in his testimony in the New Jersey action and Heimann at his deposition in the Texas action. We find this claim equally unavailing.

In support of his claim that Grinnell’s possession of his testimony in the New Jersey action should excuse a present deposition, Lougee principally relies on DiPalma v. Wiesen, 163 Conn. 293, 303 A.2d 709 (1972). In DiPalma, the witness actually testified for two days at trial and was released. When the witness failed to comply with a subpoena requiring a second appearance in court, the trial court refused to issue a capias to secure his presence. This court held that the trial court did not abuse its discretion in refusing to issue the capias in light of the witness’ prior submission to two days of trial examination. In this case, where Lougee has not testified with respect to the Texas action, we find no duplication of testimony analogous to that in DiPalma.

DiPalma aside, we note that it is uncertain at this point in time whether the transcript of Lougee’s New Jersey testimony will be admissible in the Texas action. Even if we were assured of its admissibility, we do not think that Grinnell should be bound by the testimony taken by another plaintiff in an unrelated action, notwithstanding American’s willingness to be so bound. Neither does American’s willingness to be bound by Heimann’s deposition, nor Grinnell’s possession of Heimann’s and Leake’s depositions render Lougee’s testimony unnecessarily duplicative. It is possible that Lougee could disclose information that the others did not, and, at any rate, our discovery rules do not exempt a prospective deponent from testifying merely because the applicant has access to alternative sources of information. Accord Blankenship v. Hearst Corporation, 519 F.2d 418, 429 (9th Cir. 1975); Dykes v. Morris, 85 F.R.D. 373, 375 (D. Ill. 1980); Wright v. Patrolmen’s Benevolent Assn., 72 F.R.D. 161, 164 (S.D.N.Y. 1976).

Consequently, it is our view that Grinnell is entitled to explore by deposition Lougee’s personal knowledge of American’s position on “smoking and health” issues. We therefore hold that the trial court did not abuse its discretion in denying Lougee’s motion to quash Grin-nell’s application for a deposition subpoena and for a protective order. See Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983).

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-148e. issuance of subpoena foe taking OF DEPOSITIONS. DEPOSITION TO BE USED OUTSIDE THE STATE. . . .
      “(f) Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action or probate proceeding pending in any court of the United States or of any other state of the United States or of any foreign country, on application of any party to such civil action or probate proceeding.”

       Lougee’s pleading was labeled in part as an “objection” to Grinnell’s deposition subpoena application, but essentially sought to quash the subpoena.

       We have addressed the merits of Lougee’s claim, in Parts II and III of this opinion, that the trial court should not have denied that portion of his motion seeking a protective order notwithstanding the fact that Practice Book § 221, unlike its counterpart Federal Rule of Civil Procedure 26 (c), provides that a protective order may be issued only to protect “a party.” Lougee is not a party to the Texas action.

       “[General Statutes] Sec. 52-148e. issuance of subpoena for taking OF DEPOSITIONS. DEPOSITION TO BE USED OUTSIDE THE STATE, (a) Each judge or clerk of any court, justice of the peace, notary public or commissioner of the superior court, in this state, may issue a subpoena, upon request, for the appearance of any witness before him to give his deposition in a civil action or probate proceeding, if the party seeking to take such person’s deposition has complied with the provisions of sections 52-148a and 52-148b and may take his deposition, each adverse party or his agent being present or notified.”

       See footnote 1, supra.


text:
    State of Connecticut v. William Outlaw, Jr.
    (13753)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued September 27—
    decision released November 20, 1990

      Ira B. Grudberg, with whom were Steven D. Ecker and David T. Grudberg, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Glass, J.

The state charged the defendant, William Outlaw, Jr., with the crime of murder in the first degree in violation of General Statutes § 53a-54a (a), assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, and attempted murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a). A jury found the defendant guilty as charged. Thereafter, the trial court acquitted the defendant of assault in the first degree, but convicted him of murder and attempted murder. He was sentenced to a total effective term of sixty years imprisonment, and this appeal followed.

On appeal, the defendant claims that the trial court should not have admitted into evidence: (1) the testimony of two police officers describing the extrajudicial identification of the defendant from a photographic array by the victim of the attempted murder, Fitzroy Phillip; and (2) the transcript of the probable cause hearing at which Phillip identified the defendant in the courtroom. We conclude that the trial court should have excluded the police officers’ extrajudicial identification testimony, and we therefore reverse the judgment and remand the case for a new trial.

The jury could reasonably have found the following facts. At approximately 1:15 a.m. on September 24, 1988, New Haven police officers were dispatched to investigate several gun shots fired in the Church Street South Project area in New Haven, an area known for its high volume narcotics activity. Upon their arrival, the officers discovered Sterling Williams lying in a pool of blood and suffering from fatal gunshot wounds. Two guns and approximately one thousand dollars in cash were later found on Williams’ person.

On the same morning, at approximately 1:20 a.m., a woman residing at Salem Street, New Haven, awoke to the sound of Fitzroy Phillip pounding on her back door. The woman’s mother called the police, and then allowed Phillip, who was bleeding profusely, to enter her home. Phillip was taken to the hospital and treated for multiple gunshot wounds to the back, and two gunshot wounds to the leg. At the hospital, in the presence of police officers Gilbert Burton and Joseph Pettola, Phillip identified the defendant from a photographic array.

On October 18,1988, the trial court conducted a hearing in probable cause at which Phillip identified the defendant in the courtroom as the person who had shot both him and Williams. Phillip also testified to the following facts. He had ridden in a truck with Williams to the Church Street area at approximately 1 a.m. on September 24, 1988, and Williams had gotten out of the truck to speak with the defendant, who was standing among a group of six or seven black males near an abandoned car. Five minutes later, Phillip had approached the group, and had stood within a few inches of the defendant and Williams. A few minutes later, Phillip had seen the defendant pull out a gun and shoot Williams in the head. The defendant had then shot Phillip in the leg, and as Phillip fled, the defendant had shot him once more in the leg and three times in the back.

Sometime after the probable cause hearing, the state learned that Phillip had left Connecticut, possibly for the Brooklyn, New York area. An attempt by the New York police to locate Phillip proved fruitless. Nonetheless, at trial, the state offered the testimony of Burton and Pettola describing Phillip’s identification of the defendant from the photographic array. The defendant moved to suppress the testimony as hearsay and, in the alternative, on the ground that the unnecessarily suggestive nature of the photographic array had violated his constitutional right to due process. The trial court denied the defendant’s motion, ruling that the photographic array was not unnecessarily suggestive and that the police officers’ testimony, although hearsay, was admissible under the exception to the hearsay rule for extrajudicial statements of identification, as well as the “residual” exception to the rule.

The state also sought at trial to introduce the transcript of the probable cause hearing. The defendant promptly moved to suppress the transcript, arguing that: (1) Phillip’s identification of the defendant at the probable cause hearing was tainted by the earlier due process violations inherent in the photographic identification procedure; and (2) his inability to cross-examine Phillip at trial regarding the photographic procedure and the extent of the alleged taint violated his constitutional rights to confrontation. The trial court denied the defendant’s motion, and permitted the transcript to be read to the jury. These two evidentiary rulings form the basis of the defendant’s claims on appeal.

I

The defendant’s first claim stems from Phillip’s extrajudicial identification of him from a photographic array. The identification occurred at the hospital, approximately twenty-four hours after Phillip was shot. After approaching Phillip in his hospital bed, Burton and Pettola asked Phillip to examine a ring-bound tray into which they had inserted a photograph of the defendant among 249 other photographs of black males. They placed the tray on Phillip’s chest, and flipped the pages for him. Both officers testified at trial that Phillip was alert and conscious, and that he carefully examined the photographs without comment until, upon observing the defendant’s photograph, he pointed and unhesitatingly stated: “This is the guy.” Pettola testified that Phillip was 100 percent certain of his identification.

The defendant maintains that the officers’ testimony describing this identification was inadmissible hearsay. We agree that the testimony should have been excluded as hearsay, not falling within any exception to the rule, and accordingly we conclude that a new trial is necessary. We shall consider the trial court’s alternate grounds for admitting the officers’ testimony in sequence.

A

The trial court’s first ground for admitting the officers’ testimony was that it fell within our exception to the hearsay rule for extrajudicial statements of identification. When arguing at trial for admission of the testimony, the state relied in large part upon State v. Townsend, 206 Conn. 621, 539 A.2d 114 (1988), wherein we reaffirmed in a different context our holding in State v. McClendon, 199 Conn. 5, 505 A.2d 685 (1986), that an exception to the hearsay rule for prior identification testimony was warranted where “the identifications were reliable and the witnesses were available for cross-examination.” Id., 11. The trial court’s ruling admitting the testimony was premised in part on the proposition that Phillip’s availability for cross-examination at the probable cause hearing sufficed as a substitute for exposure to cross-examination before the jury. We disagree.

A consideration integral to our holding in McClen-don was that the declarants testified at trial to the facts and circumstances surrounding their extrajudicial identifications, and thus defense counsel had the opportunity at trial to cross-examine them, procedurally restricted only by the court’s exercise of discretion. Id., 9. Similarly, in Townsend, although the declarant did not testify to the facts and circumstances of his extrajudicial identification on direct examination, he was available for cross-examination at trial when hearsay evidence of that identification was offered by the state. State v. Townsend, supra, 623-24; see also State v. Weidenhof, 205 Conn. 262, 274 A.2d 545 (1987).

In this case, Phillip did not testify at trial to the facts and circumstances surrounding his extrajudicial identification, We therefore conclude that he was not “available for cross-examination” within the meaning of that phrase in McClendon. Nor do we believe that Phillip’s availability for cross-examination at the probable cause hearing renders the officers’ testimony admissible under Townsend. A fundamental, and we think disposi-tive, difference between the facts of Townsend and those in the case at bar is that the state did not offer the officers’ testimony at the probable cause hearing, at which Phillip testified so that he could have been cross-examined about his previous identification of the defendant from the photographic array.

We therefore hold that the trial court should not have admitted the officers’ testimony under the exception to the hearsay rule for extrajudicial statements of identification. We turn now to the trial court’s alternate ground for admitting the testimony.

B

The trial court stated as its alternate ground for admitting the officers’ testimony: “[M]ost of the safeguards that normally go with the exception to the hearsay rule do exist. It was given very close in time after the event, and it would appear to be reliable.” The state urges us to uphold this ruling under the authority of State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985). In Sharpe, we held that hearsay inadmissible under one of the traditional exceptions to the hearsay rule may be admitted if (1) there is a “reasonable necessity for the admission of the statement,” and (2) the statement is “supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” Id., 664.

The circumstances present in this case disclose that Phillip’s statement was not imbued with guarantees of reliability and trustworthiness sufficient to support its admission. First, unlike the declarant in Sharpe, Phillip was not “a witness at the trial and available for cross-examination.” Id., 665. Cross-examination, “the greatest legal engine ever invented for the discovery of truth,” was therefore absent in this case with respect to the extrajudicial identification. 5 J. Wigmore, Evidence (Chadbourn Rev. 1974) § 1367, p. 32. The shortness of time between an event and the statement it provokes is ordinarily a significant indicator of reliability where the circumstances suggest that the statement was not the product of reflective thought. See C. McCormick, Evidence (3d Ed. 1984) § 297, pp. 856-57. We cannot presume, however, that the excitement of the shoot-out suspended Phillip’s powers of reflection and fabrication because officers testified that Phillip was alert, conscious and careful in his identification. See C. McCormick, supra, § 297, p. 855; see also State v. Hughes, 120 Ariz. 120, 584 P.2d 584 (1978).

Lack of knowledge as to Phillip’s role in the events at the Church Street projects, in addition, leaves us unable to conclude that “ ‘the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.’ ” State v. Sharpe, supra, 665, quoting 5 J. Wigmore, supra, § 1422. Whatever Phillip’s role, it was certainly unlike that of the Sharpe declarant, a disinterested neighbor whose role in the crime was limited to copying down a license plate number and reporting it to the police. See State v. Sharpe, supra.

In the absence of circumstances surrounding Phillip’s statement to the police officers that establish a “motivational basis for truth-telling” equivalent to those associated with the traditional exceptions to the hearsay rule, we hold that the officers’ testimony was hearsay not falling within any exception to the hearsay rule, and should have been excluded. State v. Apperson, 85 Or. App. 429, 433, 736 P.2d 1026 (1987). In view of the state’s emphasis upon the officers’ testimony in its closing argument, and the scant additional evidence implicating the defendant in the crime, we agree with the defendant that the officers’ testimony was improperly admitted as corroboration on the issue of identity. Thus, the admission of the testimony probably prejudiced the jury as to his guilt. See State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).

Therefore, we must reverse the judgment of conviction and remand the case for a new trial. Because the defendant’s remaining claim is likely to arise during retrial, we review it here.

II

The defendant advances two arguments in support of his claim that the trial court should have excluded the transcript of the probable cause hearing at which Phillip identified the defendant in the courtroom. First, he contends that the admission of the transcript violated his constitutional right to due process of law. In the alternative, he claims that the admission of the transcript violated his constitutional right to confrontation. We will consider these claims in turn.

A

The defendant’s claim that the transcript of Phillip’s testimony at the probable cause hearing should have been excluded on due process grounds is rooted in the earlier, photographic identification procedure employed by the police officers. He initially argues that the procedure was unnecessarily suggestive, in violation of his constitutional right to due process of law. This allegedly unconstitutional procedure, he maintains, tainted Phillip’s later in-court identification testimony at the probable cause hearing, thus rendering the admission of the transcript of that testimony a further deprivation of his due process right.

In determining whether the extrajudicial identification procedure violated the defendant’s due process right, we must conduct an ad hoc, two-pronged inquiry: ‘[Fjirst, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the “totality of the circumstances.” ’ ” ’ ” State v. Monteeth, 208 Conn. 202, 206, 544 A.2d 1199 (1988), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). An identification procedure is unnecessarily suggestive when it “ ‘ “ ‘give[sj rise to a very substantial likelihood of irreparable misidentification.’ ” ’ ” State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

In claiming that the extrajudicial identification procedure was unnecessarily suggestive, the defendant focuses on two characteristics of the photographs contained in the array. He argues first that the date displayed on the placard in the foreground of his photograph, April 10,1986, caused it to stand out from the others because 245 of the photographs were arranged in roughly chronological order and dated from October through December, 1983, while only three photographs other than his were marked with dates from subsequent years. In addition, the defendant claims that the format of his photograph was unduly distinctive because the date-bearing placards in his and two other photographs were flat, shiny, and exhibited information in smaller characters and in a different order than the placards in the remaining photographs, which were ridged and non-reflective.

We do not agree that these slight differences rendered the photographic array unnecessarily suggestive. Like differences in size and color composition of photographs, we hold that marginal discrepancies in texture, lettering and the order of information on placards in photographs do not automatically, in and of themselves, render an array unnecessarily suggestive. Cf. State v. Boscarino, 204 Conn. 714, 727, 529 A.2d 1260 (1987). As for the date displayed on the placard in the defendant’s photograph, it was barely readable due to overexposure, as were many of the dates displayed on the placards in the 1983 photographs. The date was not, moreover, meaningfully related to September 24,1988, the date the crime occurred, nor was it the most recent of all of the dates. Compare State v. Cubano, 203 Conn.

81, 93, 523 A.2d 495 (1987); State v. Vaughn, 199 Conn. 557, 565, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986); State v. Davis, 198 Conn. 680, 683, 504 A.2d 1372 (1986). Absent significant information displayed on the placard, it is reasonable to assume that Phillip selected the defendant’s photograph on the basis of his scrutiny of the characteristics of the individual depicted therein, rather than by focusing on the placard information or its physical attributes. See State v. Humphrey, 129 N.H. 654, 531 A.2d 329 (1987). We conclude, therefore, that the photographic identification procedure was not unnecessarily suggestive.

Having so concluded, we need not analyze the factors determining the reliability of the extrajudicial identification. See State v. Holliman, 214 Conn. 38, 49, 570 A.2d 680 (1990). Nor need we consider whether Phillip’s subsequent in-court identification at the probable cause hearing was tainted by the extrajudicial identification. “Since the initial identification of the defendant . . . was not the result of a suggestive identification procedure, there was no constitutional infirmity in the identification process.” State v. Miller, 202 Conn. 463, 474, 522 A.2d 249 (1987).

B

The defendant also attacks the admission of the transcript of Phillip’s testimony at the probable cause hearing as violative of his right to confrontation under the United States constitution. Cases involving the admission of an unavailable declarant’s prior statements of identification “[give] rise to Confrontation Clause issues ‘because hearsay evidence was admitted as substantive evidence against the [defendant].’ ” Delaware v. Fen-sterer, 474 U.S. 15, 18, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985), quoting Tennessee v. Street, 471 U.S. 409, 413, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985).

According to the defendant, the trial court should have excluded the transcript because the defendant was unable, due to Phillip’s absence at trial, to explore with “full and fair” cross-examination at trial the extent to which Phillip’s identification of the defendant at the probable cause hearing had been influenced by the earlier, allegedly unconstitutional photographic identification procedure. In reply, the state argues that Phillip’s testimony was properly admitted under the “former testimony” exception to the hearsay rule, and was coupled with “indicia of reliability” adequate to satisfy the demands of the confrontation clause. We agree with the state.

The sixth amendment to the United States constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” While a literal interpretation of the confrontation clause could bar the substantive use of any hearsay statement made by an unavailable declarant, the United States Supreme Court has rejected that view as “unintended and too extreme.” Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); see also Bourjaily v. United States, 483 U.S. 171, 182, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). The confrontation clause, however, does operate to “[bar] the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Idaho v. Wright, 497 U.S. , 110 S. Ct. 3139, 3146, 111 L. Ed. 2d 638 (1990).

In Ohio v. Roberts, supra, the United States Supreme Court fashioned a two-part test designed to protect a criminal defendant’s right to confrontation and yet facilitate the admission of prior statements of an unavailable declarant under an exception to the hearsay rule. “First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Id., 65. Even after the declarant is satisfactorily shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability’ id., 66; which serve to “afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” California v. Green, 399 U.S. 149, 160-61, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Ohio v. Roberts, supra, 66. By engaging in a search for “particularized guarantees of trustworthiness” in Roberts, the United States Supreme Court implicitly held that the exception to the hearsay rule for statements given by an unavailable declarant at a preliminary hearing was not so firmly rooted as to obviate further inquiry and search of the record. Thus, we must engage in a similar search here.

A review of the record indicates that Phillip’s testimony at the probable cause hearing bears adequate indicia of reliability to warrant submission of the transcript to the jury. The record indicates that Phillip’s testimony was given under oath, subject to criminal penalties for perjury. See California v. Green, supra, 165. Furthermore, his testimony was given before a judicial tribunal that kept an accurate judicial record of the proceedings. See id. The defendant was present in court, and he was represented by the same counsel who later represented him at trial. See id.

In addition, contrary to the defendant’s assertions, we believe that defense counsel tested Phillip’s statements at the probable cause hearing with “the equivalent of significant cross-examination.” Ohio v. Roberts, supra, 70. The transcript of the probable cause hearing reveals that defense counsel exposed the details of what Phillip claimed to have observed at Church Street, the inaccuracies in his memory of the event, and the basis for his identification of the defendant in the courtroom. Thus, defense counsel’s cross-examination “comported with the principal purpose of cross-examination: to challenge ‘whether the declarant was sincerely telling what he believed to be the truth, whether the declar-ant accurately perceived and remembered the matter he related, and whether the declarant’s intended meaning is adequately conveyed by the language he employed.’ ” Id., 71, quoting D. Davenport, “The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis,” 85 Harv. L. Rev. 1378 (1972).

For example, defense counsel asked questions at the probable cause hearing about Phillip’s reasons for going to the Church Street projects, and his reasons for getting out of the truck, to which Phillip replied “I don’t know,” and “no reason,” respectively. Phillip also divulged at defense counsel’s request the duration of his presence at the Church Street projects, and the extent of his relationship with Williams. Defense counsel elicited, further, that although Phillip claimed to have observed several other men at the scene, he could not recall how tall or heavy they were because he “was just looking.” Phillip also stated that he stood within a few inches of the defendant and Williams, and that they were talking, but, in response to defense counsel’s inquiries, admitted that he could not remember the subject of their conversation. Moreover, despite his proximity to the defendant, Phillip’s abbreviated description of the defendant before pointing to him in the courtroom was “240, 260, Black.”

The defendant argues that at the probable cause hearing he was unable to cross-examine Phillip about his prior extrajudicial photographic identification of the defendant because (1) he did not have access to the photographs until the trial, and (2) even if he had had sufficient information at the hearing to challenge that prior identification, General Statutes § 54-46a (b) would have barred him from doing so. We disagree.

First, the record discloses that, although the defendant did not then have the photographs available to him, he did know from the police report, which he did have, that Phillip had made a prior extrajudicial photographic identification. Second, § 54-46a (b) bars suppression and discovery motions in probable cause hearings, and the trial court has broad discretion under that statute concerning the scope of cross-examination in such hearings. Third, and most important, the only aspect of cross-examination that the defendant claims to have lost in this respect concerns Phillip’s prior extrajudicial identification. While that may or may not have been helpful to the defendant, given the trial court’s and our conclusion that the prior extrajudicial identification was not suggestive, and given the broad scope of cross-examination that the defendant did exercise, we cannot say that the absence of cross-examination regarding the prior extrajudicial identification was fatal to the defendant’s right of confrontation.

In light of the cross-examination conducted at the probable cause hearing and the circumstances surrounding Phillip’s testimony, we believe that the testimony possessed indicia of reliability sufficient for the jury to evaluate its truth. We thus decline to adopt the defendant’s position that “the equivalent of significant cross-examination” can take place at a preliminary hearing only when a defendant’s opportunity to cross-examine is identical to that afforded at trial. See United States v. Haywood, 658 F.2d 445 (6th Cir. 1981); Gonzalez v. Scully, 578 F. Sup. 1063 (S.D.N.Y.), aff’d, 738 F.2d 418 (2d Cir.), cert. denied, 469 U.S. 1020, 105 S. Ct. 438, 83 L. Ed. 2d 363 (1984); State v. Smith, 415 A.2d 570 (Me. 1980). “ ‘[A]n insistence upon the equivalent of a present opportunity to cross-examine disregards the other elements of special reliability in former testimony such as the oath, the solemnity of the occasion, and in the case of transcribed testimony, the accuracy of reproduction of the words spoken.’ ” State v. Parker, 161 Conn. 500, 504, 289 A.2d 894 (1971), quoting C. McCormick, Evidence (1954) § 230, p. 481. We therefore conclude that the trial court properly admitted the transcribed testimony of Phillip’s identification of the defendant at the probable cause hearing into evidence at the defendant’s trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. 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 § 53a-59 (a) (1) provides: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”
      “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct: renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       The defendant also argues on appeal that the trial court should have excluded the officers’ testimony because the unnecessarily suggestive nature of the photographic identification procedure violated his constitutional rights to due process of law. Although our decision with respect to the defendant’s hearsay claim obviates the necessity of addressing his due process claim as a ground for exclusion of the officers’ testimony, we note that because the defendant has advanced the identical argument as the basis for exclusion of the transcript of Phillip’s testimony at the probable cause hearing, we have addressed the claim in part II A of our opinion.

       In a number of jurisdictions, extrajudicial statements of identification are admissible under an exception to the hearsay rule only where the declarant testifies and is available for cross-examination at trial. See, e.g., People v. Mayfield, 23 Cal. App. 3d 236, 239, 100 Cal. Rptr. 104 (1972); State v. Harris, 711 S.W.2d 881 (Mo. 1986) (en banc); State v. Shannon, 125 N.H. 653, 484 A.2d 1164 (1984); Commonwealth v. Doa, 381 Pa. Super. 181, 553 A.2d 416 (1988); cf. United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988); Fed. R. Evid. 801 (d) (1) (c).

       Although the defendant claims that the admission of the transcript violated his rights to confrontation under both the United States and the Connecticut constitutions, our analysis of the claimed violation rests upon the United States constitution, because he has not adequately briefed the state constitutional claim.

       The three other photographs were dated April 28,1987, April 17,1987, and December 21, 1985.

       The sixth amendment to the United States constitution applies to the states through the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

       Although we have determined, in Part I of our opinion, that Phillip’s testimony at the probable cause hearing was an insufficient substitute for testimony at trial regarding the extrajudicial identification, we emphasize that Phillip’s extrajudicial identification possessed none of the indicia of reliability inherent in testimony given before a judicial tribunal such as the oath, potential penalties of perjury, the existence of a judicial record, and, in this case, the presence of the defendant.

       General Statutes § 54-46a (b) provides in relevant part: “No motion to suppress or for discovery shall be allowed in connection with such hearing.”