State v. Bethea , 187 Conn. App. 263 ( 2019 )

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STATE OF CONNECTICUT v. JEMAL E. BETHEA
(AC 40429)
Lavine, Sheldon and Bright, Js.
Syllabus
Convicted of the crime of falsely reporting an incident in the second degree
in connection with the alleged theft of his vehicle, which had been
involved in an automobile accident, the defendant appealed to this court.
P, a bystander to the accident, had witnessed a white Chrysler 300 drive
through an intersection in Hamden and crash with another vehicle before
fleeing the scene. P reported the accident, gave a description of the
driver and provided the license plate number of the Chrysler to the
authorities. Later that day, the defendant reported to the police that his
white Chrysler 300 had been stolen from outside the residence of his
girlfriend, M, in Wallingford while he was sleeping, and that M had been
the last person to use the vehicle when she drove it to a store earlier
that day. The next day, the police recovered the defendant’s damaged
vehicle from a roadside in Wallingford approximately three miles from
M’s residence. The license plate number of the defendant’s recovered
vehicle was one digit different from the license plate number P had
reported to authorities. Thereafter, the defendant filed an affidavit of
vehicle theft with his insurance company, O Co., stating that his vehicle
had been stolen while he was sleeping from outside his own residence
in North Branford after he and M had returned from the store. The
defendant then gave a recorded statement to O Co. in which he stated
that his vehicle had been stolen from outside M’s residence after he
and M had returned from the store together, and he made a number of
inconsistent statements to the police. The police obtained a search
warrant for M’s cell phone records, which revealed that M’s cell phone
had been in the vicinity of the evading incident on the date and time
of that incident, and in the vicinity of the defendant’s car the morning
it was recovered. Held:
1. The evidence was sufficient to sustain the defendant’s conviction of falsely
reporting an incident in the second degree, as the jury reasonably could
have found that the defendant knew that his car had not been stolen
at the time he made the theft report to the police; the jury was entitled
to conclude that the defendant’s inconsistent and evolving statements
surrounding the alleged theft of his vehicle, rather than being mere
corrections to his story, demonstrated a consciousness of guilt and that
the story of the theft was false, as P’s description of the driver of the
evading vehicle matched the description of M, whose cell phone records
placed her at that location at the time of the evading incident and, thus,
gave the defendant a motive to fabricate the theft story, and the allegedly
stolen car was discovered near M’s home and M’s cell phone records
placed M in the vicinity of the car the morning it was recovered, which
supported an inference that the defendant and M staged the abandon-
ment of the allegedly stolen vehicle to support their false report.
2. The defendant’s claim that the verdict returned by the jury finding him
guilty of falsely reporting an incident in the second degree but not guilty
of insurance fraud was legally inconsistent was not reviewable, our
Supreme Court having determined previously that claims of legal incon-
sistency between a conviction and an acquittal are not reviewable.
3. The record was inadequate to review the defendant’s unpreserved claim
that the search warrant for M’s cell phone records and the warrant for
his arrest were obtained without probable cause because the police
included false information in the affidavits in support of the issuance
of those warrants, as the defendant did not challenge the sufficiency of
the affidavits to support the warrants at trial, neither affidavit was
entered into evidence or placed on the record, and, thus, there was no
way to determine what information was included in the challenged
affidavits or to evaluate the defendant’s claim; moreover, even if the
record was adequate to review the claim, it nevertheless failed and
lacked merit, as the defendant had no standing to assert his claim
because he did not have a reasonable expectation of privacy in M’s cell
phone records, and an illegal arrest does not void a subsequent con-
viction.
4. This court declined to review the defendant’s unpreserved claim that the
court improperly permitted P to make an in-court identification of M
as the driver of the evading vehicle in the absence of a prior nonsugges-
tive out-of-court identification, as P did not make an in-court identifica-
tion but merely gave a description of the driver of the vehicle involved
in the evading incident, and the defendant’s claim, therefore, was not
reviewable pursuant to State v. Golding (213 Conn. 233) because it
was not one of constitutional magnitude alleging the violation of a
fundamental right; moreover, the defendant’s unpreserved claims that
that the trial court erred by admitting P’s testimony, which he claimed
constituted hearsay and was prejudicial, and by admitting his out-of-
court statements were also not reviewable under Golding, the claims
being evidentiary in nature.
5. The defendant could not prevail on his unpreserved claim that the prosecu-
tor improperly withheld the testimony of an alleged eyewitness to the
evading incident in violation of Brady v. Maryland (373 U.S. 83); the
evidence at issue was not suppressed within the meaning of Brady, as
the defendant was aware of the alleged eyewitness, who did not make
any statement to the police regarding the evading incident, and had
equal access to the alleged eyewitness, as demonstrated by the fact that
the defendant independently was able to obtain a statement from that
witness at some point after the time of his trial.
Argued October 22, 2018–officially released January 15, 2019
Procedural History
Substitute information charging the defendant with
the crimes of attempt to commit larceny in the second
degree, insurance fraud, and falsely reporting an inci-
dent in the second degree, brought to the Superior Court
in the judicial district of New Haven, geographical area
number seven, and tried to the jury before B. Fischer,
J.; verdict and judgment of guilty of falsely reporting an
incident in the second degree, from which the defendant
appealed to this court. Affirmed.
Jemal E. Bethea, self-represented, the appellant
(defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Kelly Davis, deputy assistant state’s attor-
ney, for the appellee (state).
Opinion
SHELDON, J. The self-represented defendant, Jemal
E. Bethea, appeals from the judgment of conviction that
was rendered against him, upon the verdict of a jury,
on the charge of falsely reporting an incident in the
second degree in violation of General Statutes § 53a-
180c (a) (1). The defendant was tried under an amended
information dated March 2, 2017, in which the state
alleged, inter alia,1 that on or about April 8, 2014, in
Wallingford, while knowing the information he reported
was false or baseless, he reported to law enforcement
an incident that did not in fact occur involving the
alleged theft of his motor vehicle, and then, with the
intent to injure, defraud or deceive Omni Insurance
Group, Inc. (Omni), presented a statement of material
fact in support of an insurance claim knowing that the
statement contained false or misleading information.
Although the defendant’s appellate brief is not a model
of clarity, we construe his claims on appeal to be (1)
that the evidence at trial was insufficient to support his
conviction of falsely reporting an incident, (2) that the
verdicts in his case, finding him guilty of falsely
reporting an incident but not guilty of insurance fraud,
were legally inconsistent, (3) that neither the warrant
to search and seize the cell phone records of the defen-
dant’s girlfriend, who was allegedly driving the defen-
dant’s vehicle at the time it was reportedly stolen, nor
the warrant for the defendant’s arrest in this case was
supported by probable cause, (4) that the trial court
erred in admitting a first time in-court identification of
his girlfriend by an eyewitness, Jacqueline Pecora, (5)
that the trial court erred in admitting impermissible
hearsay testimony by Pecora that was more prejudicial
than probative, (6) that the trial court erred in admitting
the defendant’s out-of-court statements to the police
that were impermissible hearsay, and (7) that the prose-
cutor committed a Brady2 violation by withholding the
exculpatory testimony of an eyewitness, Allen Murchie.
We affirm the judgment of the trial court.3
The jury was presented with the following evidence
upon which to base its verdict. On April 8, 2014, at
approximately 6 p.m., Pecora was jogging near the inter-
section of Hartford Turnpike and Ridge Road in Ham-
den when she witnessed a white Chrysler 300 drive
through the intersection and crash into a ‘‘silver blue’’
Subaru wagon. The driver of the Chrysler, a Caucasian
female with blonde hair, who was approximately forty-
five to fifty-five years old, pulled over to the shoulder
of the road momentarily before leaving the scene. As
the Chrysler drove away, Pecora was able to get the
number of its license plate. Pecora then ran to get help
at a nearby fire station, where she relayed a description
of the vehicle that had left the scene and its license
plate number to authorities.
Hamden Police Officer Mark Gery subsequently
responded to a dispatch concerning the automobile
accident at the intersection of Hartford Turnpike and
Ridge Road, where he arrived at approximately 6:10
p.m. Upon his arrival, he observed a single vehicle, a
Subaru, which was heavily damaged on its passenger
side, stopped in the middle of the intersection. He noted
that there appeared to be white paint transfer on the
right side of the vehicle. While at the scene, Gery spoke
to witnesses who reported to him the license plate
number of a second vehicle that had been involved in
the accident, but had left the scene. When he traced
the license plate number, it came back to a pickup truck
registered to the state of Connecticut. Realizing that
the license plate number he had been given for the
evading vehicle was not correct, he attempted to trace
permutations of the reported number in a futile attempt
to identify the evading vehicle.
Later that evening, at approximately 9 p.m., the defen-
dant contacted the Wallingford Police Department to
report that his vehicle, a white Chrysler 300, had been
stolen. He spoke with Officer Coleman Turner, who
immediately went to a residence on Wharton Brook
Drive in Wallingford to take the defendant’s report.
There, the defendant told Turner that when he went
outside at approximately 9 p.m. to drive to the store to
purchase lottery tickets, he found that his vehicle was
missing. The officer also spoke with the defendant’s
girlfriend, Amy McVey, a Caucasian middle-aged female
with blonde hair who resided at the Wharton Brook
residence outside of which the car was reportedly sto-
len. The defendant told the officer that McVey was the
last person to use his car before it was stolen. She
reportedly had driven the vehicle to Walgreens earlier
that evening.
The following day, at approximately 1:37 p.m., Officer
Abel Gonzalez of the Wallingford Police Department
was dispatched to recover a stolen motor vehicle that
had been found on Quigley Road in Wallingford, approx-
imately three miles from McVey’s residence on Wharton
Brook Drive. When he arrived on Quigley Road, Gonza-
lez discovered the defendant’s white Chrysler 300
parked on the roadside with damage to its front end.
The officer also noted what appeared to be black paint
transfer on the front right corner of the vehicle. Inside
the vehicle, which he found to be unlocked, Gonzalez
found a wallet containing credit cards and identifying
information that matched the name of the registered
owner of the vehicle, defendant Jemal Bethea. He found
the keys to the vehicle on the back seat. The license
plate number of the defendant’s vehicle was one digit
different from the number Pecora had reported to
authorities as the license plate number of the car
involved in the evading incident on April 8.
On April 9, 2014, the defendant returned a phone
call from Officer Gery. He told the officer that on the
previous night he had been sleeping from 6 p.m. to 9
p.m. before he went outside and discovered that his
vehicle was missing. He added that he might have
dropped the keys to the vehicle without knowing it
while he was bringing packages into his girlfriend’s
home.
The following day, April 10, 2014, the defendant filed
an affidavit of vehicle theft with his insurance company,
Omni. In his affidavit, the defendant indicated that the
‘‘exact location of the theft’’ was his residence at 57
Chidsey Drive in North Branford. He then explained
the circumstances of the theft, however, as follows:
‘‘After coming back from Walgreens [and] picking up
meds, at about 6:10 p.m. we went into my girlfriend’s
house with many bags from [the] store. Put everything
away [and] I went upstairs [and] I took a nap. Waking
up at about 9 p.m. I decided to go to the store [and]
play my numbers. When I went outside I noticed the
car was gone. I immediately called 911.’’
Later that same day, a claims representative from
Omni took a recorded statement from the defendant
regarding the theft over the telephone. In that state-
ment, the defendant stated that the last time that he
had driven his vehicle was at approximately 5:45 p.m.
on April 8, when he and his girlfriend had gone to pick
up a prescription. He noted that he had a receipt for
the prescription and that it was time stamped at 6 p.m.
The defendant stated that they came home, unloaded
the vehicle, then went into the house, where McVey
began to do laundry. The defendant continued: ‘‘I went
upstairs . . . about an hour and [a] half or even later
. . . I got up. I don’t know what time, but looked at
my phone calls and noticed, you know, what time I was
up and everything. And that’s when I decided like at
9:30 to go out to the store and play my lottery numbers.
And when I went to go look outside, the vehicle was
gone . . . .’’ He reiterated that the car was stolen from
in front of his girlfriend’s home.
On April 15, 2014, Officer Turner contacted the defen-
dant with follow-up questions regarding the reported
theft. The defendant told Turner that on the day his
vehicle was stolen, he went to sleep at approximately
6:15 p.m. and woke up at 8:30 p.m. He said that McVey
had taken the vehicle to Walgreens shortly before his
nap to pick up a prescription and that he had a receipt
from that errand, although he did not provide the receipt
to Turner. Several days later, the defendant returned
to the police station to meet with Turner. During that
meeting, the defendant first stated that he alone was
responsible for the vehicle and that he was the only
one who ever drove it. Then he asked the officer to
delete his previous report. The defendant further stated
that he was mistaken about the visit to Walgreens, as
McVey had used the car to run that particular errand
on a different day.
On April 16, 2014, Officer Gery again spoke to the
defendant in furtherance of the evading investigation.
This time the defendant told the officer that his girl-
friend had not been driving his car at the time of the
evading incident and neither had he. In fact, he said,
his girlfriend was at home taking a phone call on the
date and time in question.
On September 11, 2014, the defendant was deposed
by an attorney representing Omni. During the deposi-
tion, the defendant agreed that his affidavit of vehicle
theft had been completed by an insurance agent in his
presence and that he had had the opportunity to review
the document for its accuracy before signing it. During
the deposition, however, he noted that there were inac-
curacies in the affidavit. Specifically, he stated that
McVey did not go to Walgreens on the day his car was
stolen. He explained that he had completed the affidavit
three or four days after the incident occurred when his
memory was becoming ‘‘vague’’ and, in the time since,
he had found the Walgreens receipt, which indicated
that McVey had been to the store on April 7, not April
8. When asked if the vehicle had been stolen from his
residence in North Branford, as reflected in the affida-
vit, the defendant replied that the agent had incorrectly
completed that portion of the affidavit, for the vehicle
was actually taken from McVey’s address in Wall-
ingford, as reflected in the narrative portion of the
affidavit.
The defendant also noted in the deposition that he
had since reviewed his phone records, which showed
that he was making phone calls on the day in question
from approximately 5:30 p.m. through 9 p.m. He told
the attorney for Omni that McVey had been with him
that entire time. He was then asked by the attorney
whether he recalled telling the police that McVey had
parked the vehicle directly in front of her residence on
the night in question. He denied that he had ever said
that. He was also asked by the attorney whether there
were any other individuals whom he allowed to use his
vehicle. He first answered that he might allow a friend
to use it to go to the store. When the attorney asked
him to name specific individuals who had driven the
vehicle while he had owned it, he answered that he
might let his cousin use it to go to the store. When
asked for his cousin’s name, he responded: ‘‘I’m saying
in general. I mean, I mean, I had the car for a year,
maybe one or two people ever drove my vehicle.’’ When
asked again to clarify if anyone other than the defendant
had ever driven the vehicle, he replied: ‘‘I mean, like I
said, if somebody needed a ride somewhere, a friend
or a family member, you know, I mean, nobody used
my car. I mean, what are you saying?’’ The exchange
continued with the defendant saying that his cousin
had used the car to go to the store once while he was
visiting him. When asked for his cousin’s name, how-
ever, the defendant responded that he ‘‘can’t think of
his name offhand.’’ When asked to confirm that he did
not know his cousin’s name, he responded that he had
been speaking in general terms. Finally, he declared
that the only person who had driven his vehicle was
his girlfriend.
Detective Sean Houlihan of the Wallingford Police
Department was assigned to investigate the defendant
on suspicion that his car had been involved in an evad-
ing incident and that he had subsequently committed
insurance fraud by making a claim for benefits in con-
nection with that incident. Houlihan applied for a search
warrant for cell phone records for a number registered
to Bob McVey in Florida that was believed to have been
used by the defendant’s girlfriend, Amy McVey, in an
attempt to discover the movements of that phone on the
dates in question. Agent James Wines from the Federal
Bureau of Investigation’s Cellular Analysis Survey Team
analyzed the records obtained by Houlihan. His analysis
indicated that on April 8, 2014, between 5:45 p.m. and
6:15 p.m., the McVey cell phone was in the southern
Hamden and New Haven areas, not in Wallingford as
suggested by the defendant. Further, he opined that at
9:08 a.m. on April 9, the phone had been located just
northeast of the location where the defendant’s car was
recovered later that day.
In closing argument, the prosecutor highlighted the
inconsistencies among the defendant’s various state-
ments, arguing that they indicated that he was lying
about the car theft. He also argued that the eyewitness
description of the evading driver and McVey’s cell
phone records proved that she was the individual
involved in the evading incident, and thus that the defen-
dant had falsely reported the car theft to the police
and his insurance company in order to ensure that he
received money for the vehicle damage that had
resulted from that incident. After concluding its deliber-
ations, the jury returned a guilty verdict on the charge
of falsely reporting an incident in the second degree
and acquitted the defendant of the other two charges.
The defendant later was sentenced to a term of one
year incarceration, with the execution of that sentence
fully suspended, a $750 fine, and two years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the evidence was
insufficient to support his conviction of falsely
reporting an incident in the second degree because the
state failed to prove that he knew the information that
he reported to police was false at the time he made
such report. We disagree.
Section 53a-180c provides in relevant part: ‘‘(a) A
person is guilty of falsely reporting an incident in the
second degree when, knowing the information
reported, conveyed or circulated to be false or baseless,
such person gratuitously reports to a law enforcement
officer or agency (1) the alleged occurrence of an
offense or incident which did not in fact occur . . . .’’
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two part test. First we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [jury] reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . [An appellate] court
cannot substitute its own judgment for that of the jury
if there is sufficient evidence to support the jury’s ver-
dict.’’ (Internal quotation marks omitted.) State v. Allan,
311 Conn. 1, 25, 83 A.3d 326 (2014). In applying that
test, ‘‘we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
jury’s verdict of guilty.’’ (Internal quotation marks omit-
ted.) State v. Stephen J. R., 309 Conn. 586, 594, 72 A.3d
379 (2013). Further, it is well established that ‘‘[t]his
court does not retry the case or evaluate the credibility
of the witnesses. . . . Rather, we must defer to the
[trier of fact’s] assessment of the credibility of the wit-
nesses based on its firsthand observation of their con-
duct, demeanor and attitude.’’ (Citation omitted;
internal quotation marks omitted.) State v. McClam, 44
Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240
Conn. 912, 690 A.2d 400 (1997).
On the basis of the evidence it heard, the jury reason-
ably could have found that the defendant’s inconsistent
statements surrounding the events of April 8, 2014, were
sufficient to establish that he knew that his car had not
in fact been stolen at the time he made the theft report
to the police. The defendant argues that the inconsisten-
cies in his statements are easily explained and that he
merely corrected himself regarding the date on which
he went to Walgreens. The determination of whether
the changes in his story were mere corrections or incon-
sistencies demonstrating a consciousness of guilt was
well within the province of the jury to make. It was
reasonable for the jury to conclude that the defendant’s
evolving story was strong evidence of its falsehood,
especially considering that the reason he gave for the
change in his story—that his memory began to fade—
is particularly questionable because he gave the police
that version of events on the same day the alleged
incident occurred. Moreover, the jury reasonably could
have found that the evidence of McVey’s location
gleaned from her cell phone records not only under-
mined the veracity of the defendant’s version of the
events of April 8, 2014, but also put McVey at the inter-
section of Hartford Turnpike and Ridge Road at the
time of the evading incident, thus giving the defendant
a motive to fabricate. Pecora’s testimony identifying a
middle-aged Caucasian woman with blonde hair as the
driver of the car involved in the evading incident—
a description that matched McVey’s appearance—also
bolstered this cell tower location evidence. Further,
the facts that the defendant’s car was discovered near
McVey’s home and that the cell tower location evidence
placed McVey’s cell phone in that vicinity on the morn-
ing that the car was recovered, could reasonably have
been found by the jury to support the state’s claim that
the defendant and McVey staged the abandonment of
the allegedly stolen vehicle to support their false report.
For these reasons, the evidence presented, construed
in the light most favorable to sustaining the jury’s ver-
dict, was sufficient for the jury to find the defendant
guilty of falsely reporting an incident. We therefore
reject the defendant’s first claim.
II
The defendant next claims that the verdicts returned
by the jury were legally inconsistent. Specifically, he
argues that the elements of insurance fraud and falsely
reporting an incident are overlapping, in that they both
require proof that he knowingly made a false statement.
He therefore claims that his acquittal on the charge of
insurance fraud requires his acquittal on the charge of
falsely reporting an incident, as well. We are unper-
suaded.
In State v. Arroyo, 292 Conn. 558, 585, 973 A.2d 1254(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175
L. Ed. 2d 1086 (2010), our Supreme Court held that
claims of inconsistency between convictions and
acquittals are not reviewable on appeal, regardless of
whether the alleged inconsistencies are legal, factual,
or logical in nature. It reasoned that ‘‘an individualized
assessment of the reason for the inconsistency would
be based either upon pure speculation, or would require
inquiries into the jury’s deliberations that courts gener-
ally will not undertake. . . . [A] criminal defendant
already is afforded protection against jury irrationality
or error by the independent review of the sufficiency
of the evidence undertaken by the trial and appellate
courts.’’ (Citation omitted; internal quotation marks
omitted.) Id. Under this authority, the defendant’s claim
of inconsistency between his acquittal of attempted
larceny and insurance fraud and his conviction of falsely
reporting an incident in the second degree is not
reviewable.
III
The defendant’s third claim is that the search warrant
for McVey’s cell phone records and the warrant for
the defendant’s own arrest in this case were obtained
without probable cause because the investigating offi-
cers included false information in their affidavits in
support of the issuance of those warrants. As a result,
he claims that the challenged search and arrest were
unlawful, and, thus, that the fruits of the challenged
search should have been suppressed and the conviction,
which ultimately resulted from the challenged arrest,
should be set aside. For the following reasons, we con-
clude that both aspects of this claim are unreviewable
and devoid of legal merit.
As an initial matter, neither aspect of this claim is
preserved, and so the defendant asks that the claim be
reviewed under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015). ‘‘[A] defendant
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of
any one of these conditions, the defendant’s claim will
fail.’’ (Emphasis omitted; footnote omitted.) State v.
Golding, supra, 239–40.
This unpreserved claim is not reviewable because
the record is inadequate. Because the defendant did
not challenge the sufficiency of the affidavits to support
these warrants at trial, neither affidavit was entered
into evidence or otherwise placed on the record. Thus,
we have no way to determine what information was
included in the challenged affidavits or to evaluate
either of the defendant’s claims.
Even, however, if we had a record upon which to
review these claims, we would conclude that both
claims are without merit for the following reasons. First,
as to the defendant’s challenge to the warrant for the
seizure of McVey’s cell phone records, the defendant
has no standing to assert such a claim. See Rawlings
v. Kentucky, 448 U.S. 98, 105, 100 S. Ct. 2556, 65 L. Ed.
2d 633 (1980) (holding that defendant had no reasonable
expectation of privacy in property of another). Second,
as to the defendant’s challenge to the allegedly fraudu-
lent basis for the issuance of the warrant for his own
arrest, it has long been established that ‘‘the fact that
[a] person has been illegally arrested or detained [does]
not void a subsequent conviction.’’ State v. Haskins,
188 Conn. 432, 442, 450 A.2d 828 (1982); see also Frisbie
v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541(1952). For the foregoing reasons, neither aspect of this
claim states a valid legal basis upon which relief could
be granted in this case even if it were supported by an
adequate record.
IV
The defendant next claims that the court improperly
permitted Pecora to make an in-court identification of
his girlfriend as the driver of the evading vehicle in the
absence of a showing that she previously had made a
nonsuggestive out-of-court identification of McVey. The
defendant, however, did not take exception to Pecora’s
testimony on this basis, and so he requests review of
this claim under Golding. We conclude that, although
the record is adequate for review, this claim is not
reviewable under the second prong of Golding because
Pecora never made an in-court identification of McVey.
Whether a first time in-court eyewitness identifica-
tion of the defendant is permissible would typically be a
claim of constitutional magnitude because it implicates
the defendant’s fundamental right of due process. See
State v. Dickson, 322 Conn. 410, 426, 141 A.3d 810(2016), cert. denied, U.S. , 137 S. Ct. 2263, 198 L.
Ed. 2d 713 (2017). In this case, however, Pecora did
not make a first time in-court identification of anyone,
but merely gave a description of the driver of the other
vehicle involved in the evading incident that matched
the appearance of the defendant’s girlfriend. Because
no identification was made, this is not a claim of consti-
tutional magnitude alleging the violation of a fundamen-
tal right, and thus is not reviewable under Golding.
V
The defendant next claims that the trial court erred
in admitting the testimony of Pecora, an eyewitness to
the evading incident. Specifically, he claims that Pec-
ora’s in-court testimony was inadmissible both because
it constituted hearsay and because it was more prejudi-
cial than probative. No objection was made to the chal-
lenged testimony at the time of trial, however, so this
claim is also unpreserved. The defendant, therefore,
requests that we review the claim pursuant to Golding.
However, unpreserved evidentiary issues are not
afforded such review. See State v. Golding, supra, 213
Conn. 241 (‘‘once identified, unpreserved evidentiary
claims masquerading as constitutional claims will be
summarily dismissed’’). Thus, this unpreserved claim
is not reviewable.
VI
The defendant next claims that the court erred in
admitting his many out-of-court statements to investi-
gating officers because they are impermissible hearsay
evidence. This evidentiary claim is also unpreserved
and, therefore, for the reasons stated in part V of this
opinion, it is also not reviewable. Even so, there is
no question that a defendant’s out-of-court statements,
when introduced by the state, are admissible as state-
ments by a party opponent under a well established
exception to the hearsay rule. See Conn. Code Evid.
§ 8-3 (1).
Finally, the defendant claims that the prosecutor
committed a Brady violation by withholding the testi-
mony of Murchie, an alleged eyewitness. See Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963). Specifically, he claims that the state withheld
material evidence of an alleged eyewitness whom the
investigating officers failed to pursue and who, alleg-
edly, would have testified that the other vehicle
involved in the evading incident was of a different color
than his vehicle. We disagree.
The following additional facts are necessary to our
review of this claim. On October 26, 2016, this case was
listed on a trial management docket when a discussion
took place between the defendant, who was then self-
represented, the prosecutor, and the court regarding
outstanding discovery. The defendant requested that
the state turn over an eyewitness statement from an
individual named Allen Murchie, whose name appeared
in one of the police reports for the case. In response,
the prosecutor explained to the court: ‘‘[The defen-
dant’s] case is an insurance fraud case. There was an
accompanying motor vehicle accident, which we chose
not to prosecute, that stems from this. There was a
witness named Allen Murchie. We’ve made multiple
attempts to contact him. Mr. Bethea has the same infor-
mation that I have as regards to that witness. . . .
There was never a written statement.’’ The defendant
stated that the information was material, arguing that
Murchie’s statement would contain information that
negated evidence that his girlfriend was involved in the
evading incident while driving his car. The prosecutor
responded by representing that she would not be calling
Murchie as a witness, that none of the police witnesses
would base their testimony on any information received
from Murchie, and that he was ‘‘not relevant to this
case at all.’’ The court, Klatt, J., informed the defendant
that the state had the burden of going forward, that the
prosecutor was representing that she did not need the
eyewitness to prove her case, and, thus, that she was
not required to call him as a witness. Therefore, the
court ruled, the defendant would have to subpoena the
witness himself if he considered the witness necessary
for his defense.
Again, this claim is unpreserved and the defendant
requests that it be reviewed under Golding. In this
instance, the record is adequate for review and the issue
is of constitutional magnitude, alleging the violation
of a fundamental right to due process. See Gaskin v.
Commissioner of Correction, 183 Conn. App. 496, 530,
193 A.3d 625 (2018) (‘‘[t]he Brady rule is based on the
requirement of due process’’ [internal quotation marks
omitted]). We, therefore, consider whether the alleged
constitutional violation exists and deprived the defen-
dant of a fair trial.
The three essential components of a Brady claim, all
of which must be established to warrant a new trial,
are as follows: ‘‘The evidence at issue must be favorable
to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been
suppressed by the [s]tate, either willfully or inadver-
tently; and prejudice must have ensued. . . . Under
the last Brady prong, the prejudice that the defendant
suffered as a result of the impropriety must have been
material to the case, such that the favorable evidence
could reasonably be taken to put the whole case in
such a different light as to undermine confidence in
the verdict.’’ (Internal quotation marks omitted.) Id.,531–32. ‘‘It is well established that [e]vidence known
to the defendant or his counsel, or that is disclosed,
even if during trial, is not considered suppressed as
that term is used in Brady.’’ (Internal quotation marks
omitted.) State v. Williams, 93 Conn. App. 844, 850, 890
A.2d 630 (2006). ‘‘Whether the petitioner was deprived
of his due process rights due to a Brady violation is a
question of law, to which we grant plenary review.’’
(Internal quotation marks omitted.) Morant v. Commis-
sioner of Correction, 117 Conn. App. 279, 284, 979 A.2d
507, cert. denied, 294 Conn 906, 982 A.2d 1080 (2009).
The evidence at issue was potentially favorable, as
argued by the defendant, to impeach the testimony of
Pecora regarding the evading incident. However, even
if we assume arguendo that the evidence was favorable
to the defendant, there is no evidence that the prosecu-
tor suppressed such evidence. The defendant had equal
access to the witness, as noted by the state and as
evidenced by the fact that the defendant appears from
his brief to have obtained a statement from that witness
independently, albeit after the time of his trial. Because
the evidence was not suppressed, we cannot conclude
that the prosecutor committed a Brady violation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was also charged with, but was acquitted of, attempt to
commit larceny in the second degree in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-123 (a) (2), and insurance fraud in violation of General
Statutes § 53a-215 (a) (1).
2
In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963), the Supreme Court held that ‘‘the suppression by the prosecution
of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.’’
3
With the exception of the defendant’s claim that insufficient evidence
was presented to sustain his conviction for falsely reporting an incident,
the state argues that he has failed to adequately brief each of these claims
and, thus, has abandoned them. We recognize that the defendant’s brief
lacks precision and fails to provide a thorough analysis of the relevant legal
authorities, however, ‘‘it is our policy to give leeway to [self-represented]
litigants regarding their adherence to the rules of this court.’’ In re Brittany
J., 100 Conn. App. 329, 330, 917 A.2d 1024 (2007). ‘‘The modern trend . . .
is to construe pleadings broadly and realistically, rather than narrowly and
technically. . . . The courts adhere to this rule to ensure that [self-repre-
sented] litigants receive a full and fair opportunity to be heard, regardless
of their lack of legal education and experience.’’ (Internal quotation marks
omitted.) Mourning v. Commissioner of Correction, 120 Conn. App. 612,
624–25, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010).
However, ‘‘while courts should not construe pleadings narrowly and techni-
cally, courts also cannot contort pleadings in such a way so as to strain the
bounds of rational comprehension.’’ (Internal quotation marks omitted.)
Id., 625. To the extent the defendant raises additional claims, they are
inadequately briefed and we decline to ‘‘strain the bounds of rational compre-
hension’’ to reach them. Id.