State v. Dunbar , 188 Conn. App. 635 ( 2019 )


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    STATE OF CONNECTICUT v. TIMOLYN DUNBAR
    (AC 40924)
    DiPentima, C. J., and Alvord and Flynn, Js.
    Syllabus
    The defendant, who had been on probation in connection with her conviction
    of the crimes of sale of narcotics and failure to appear in the first degree,
    appealed to this court from the judgment of the trial court finding her
    in violation of her probation. During her probation, the defendant was
    arrested in connection with her alleged sale of narcotics to a confidential
    informant. H, a police detective and member of a narcotics task force,
    arranged for the confidential informant to make a controlled purchase
    of crack cocaine. During the transaction, H and other task force members
    kept the informant under constant surveillance. From a distance of 100
    feet, H observed a woman approach the confidential informant and
    engage in a hand-to-hand drug transaction. As the seller walked away,
    she approached H’s location, walking past him at a distance of approxi-
    mately five feet. The confidential informant later provided H with a
    written statement about the drug transaction and told H the name by
    which the seller had identified herself. After learning the possible identity
    of the seller from a fellow police officer, H entered the information
    into a probation database, obtained a photograph of the defendant and
    immediately identified her as the seller. During the evidentiary phase
    of the violation of probation hearing, H identified the defendant in court
    as the seller of the crack cocaine. H also testified as to the reliability
    of the confidential informant and the details of the drug transaction,
    including how the seller had identified herself to the informant. The
    trial court also admitted, without objection, the photograph of the defen-
    dant from the probation database. At the conclusion of the hearing, the
    trial court found that the defendant had violated the condition of her
    probation that she not violate any criminal law of the United States or
    this state. On the defendant’s appeal to this court, held:
    1. The trial court’s finding that the defendant violated her probation was
    not clearly erroneous and was supported by sufficient evidence and
    testimony in the record; that court properly relied on and was free to
    credit H’s testimony regarding the drug transaction and his identification
    of the defendant as the seller of the crack cocaine, as the weight to be
    given to the evidence and credibility determinations were solely within
    the province of the court as the trier of fact.
    2. The record was inadequate to review the defendant’s unpreserved claim
    that her right to due process was violated because the trial court failed
    to conduct an analysis pursuant to Neil v. Biggers (
    409 U.S. 188
    ) concern-
    ing the reliability of H’s out-of-court identification of the defendant,
    which was based on the photograph of the defendant that H had obtained
    from the probation database: the defendant did not move to suppress
    or object to the admission of the subject photograph, or ask the court
    to conduct an analysis pursuant to Neil, and, therefore, the trial court
    did not make any factual findings concerning the suggestiveness of the
    identification procedure or the reliability of the out-of-out identification
    by H, which rendered the record inadequate for review of the claim
    pursuant to State v. Golding (
    213 Conn. 233
    ); moreover, because the
    defendant’s due process challenge to the out-of-court identification was
    not reviewable, her derivative claim that H’s in-court identification of
    her violated her right to due process because it was irreparably tainted by
    the state’s use of the unnecessarily suggestive out-of-court identification
    procedure necessarily failed as well.
    3. This court declined to review the defendant’s unpreserved claim that her
    due process right to confront an adverse witness was violated when H
    testified at the violation of probation hearing about how the seller had
    identified herself to the confidential informant during the drug transac-
    tion, which was based on her claim that the trial court had failed to
    balance her interest in confronting the confidential informant against
    the state’s reasons for not producing the informant at the hearing and
    the reliability of the proffered hearsay; at the hearing, the defendant did
    not object to that testimony or specifically argue that the identification
    violated her due process right as a result of the inability to confront
    the adverse witness, nor did she request that the trial court conduct a
    balancing test pursuant to State v. Shakir (
    130 Conn. App. 458
    ), and,
    therefore, she failed to sustain her burden of establishing an adequate
    record for review of her unpreserved claim pursuant to State v. Golding
    (
    213 Conn. 233
    ).
    Argued January 10—officially released March 19, 2019
    Procedural History
    Information charging the defendant with violation of
    probation, brought to the Superior Court in the judicial
    district of Fairfield, geographical area number two,
    where the court, Holden, J., denied the defendant’s
    motion for disclosure of the identity of a confidential
    informant; thereafter, the matter was tried to the court;
    judgment finding the defendant in violation of proba-
    tion, from which the defendant appealed to this
    court. Affirmed.
    David B. Bachman, assigned counsel, for the appel-
    lant (defendant).
    Brett R. Aiello, special deputy assistant state’s attor-
    ney, with whom, on the brief, were John C. Smriga,
    state’s attorney, and Nicholas J. Bove, Jr., senior assis-
    tant state’s attorney, for the appellee (state).
    Opinion
    DiPENTIMA, C. J. The defendant, Timolyn Dunbar,
    appeals from the judgment of the trial court finding
    her in violation of her probation pursuant to General
    Statutes § 53a-32. On appeal, the defendant claims that
    (1) the court improperly found a violation of probation
    on the basis of insufficient evidence, (2) her right to
    due process was violated by the identification proce-
    dures used in this case and (3) her right to due process
    was violated when the court denied her the right to
    confront an adverse witness. We affirm the judgment
    of the trial court.
    The record reveals the following facts and procedural
    history. On December 2, 2011, the defendant was sen-
    tenced to fifteen years of incarceration, execution sus-
    pended after three years, and three years of probation
    following her guilty plea and conviction for selling nar-
    cotics in violation of General Statutes § 21a-277 (a) and
    failure to appear in the first degree in violation of Gen-
    eral Statutes § 53a-172. The defendant was released
    from the custody of the Commissioner of Correction
    on February 14, 2014, and signed her conditions of
    probation five days later. These conditions included the
    standard requirement that the defendant not violate any
    criminal law of the United States or Connecticut.
    In 2015, Mark Heinmiller, a detective with the West-
    port Police Department, was a member of the South-
    west Narcotics Task Force (task force).1 On December
    10, 2015, Heinmiller spoke with a confidential informant
    and set up a controlled purchase of crack cocaine. Hein-
    miller personally had used this confidential informant
    approximately thirty times in the past and described
    this individual as ‘‘proven and very reliable.’’
    Later that day, Heinmiller and other members of the
    task force observed the defendant approach the confi-
    dential informant in the area of Park Avenue and Olive
    Street in Bridgeport. The defendant provided the confi-
    dential informant with crack cocaine in exchange for
    money. The defendant then left the area, coming within
    five feet of Heinmiller as he conducted his surveillance.
    The confidential informant later provided Heinmiller
    with a written statement about the drug sale. Heinmiller
    also noted that the confidential informant had told him
    that the seller of the crack cocaine identified herself
    as ‘‘Timberlyn’’ or ‘‘Timberland.’’
    At a later date, one of the officers who had partici-
    pated in the surveillance of this controlled drug pur-
    chase attended a meeting of the task force. At this
    meeting, he informed the other members that the per-
    son who had sold illegal drugs to the confidential infor-
    mant went by the name of ‘‘Timberlyn’’ or
    ‘‘Timberland.’’2 Other officers suggested that this person
    could have been the defendant. Following the meeting,
    Heinmiller entered the defendant’s name into a ‘‘proba-
    tion database’’ and, using a photograph contained
    therein, identified her as the seller of the crack cocaine
    to the confidential informant.
    Heinmiller prepared an arrest warrant for the defen-
    dant and executed it in March, 2016. The defendant
    subsequently spoke with Heinmiller. She told him that
    she could not recall the events of December 10, 2015,
    and that she was ‘‘using drugs’’ at that time.
    The state subsequently charged the defendant with
    violating her probation pursuant to § 53a-32. The court,
    Holden, J., found that the defendant had violated the
    conditions of her probation by violating the criminal
    laws of this state or the United States.3 It further ordered
    that the defendant continue on probation and that the
    original sentence remain in effect. This appeal followed.
    Additional facts will be set forth as necessary.
    I
    The defendant first claims that the court improperly
    found a violation of probation on the basis of insuffi-
    cient evidence. Specifically, she argues that she was
    identified as the seller of the crack cocaine ‘‘entirely
    on unreliable hearsay from an unknown confidential
    informant related in court by a law enforcement offi-
    cer.’’4 The state counters that the court properly relied
    on Heinmiller’s testimony regarding his observations
    of the drug sale and his identification of the defendant
    as the seller of the crack cocaine to support its conclu-
    sion that she had violated her probation. We agree with
    the state.
    As an initial matter, we set forth the relevant legal
    principles and our standard of review. ‘‘[T]he purpose
    of a probation revocation hearing is to determine
    whether a defendant’s conduct constituted an act suffi-
    cient to support a revocation of probation . . . rather
    than whether the defendant had, beyond a reasonable
    doubt, violated a criminal law. The proof of the conduct
    at the hearing need not be sufficient to sustain a viola-
    tion of a criminal law. . . . Thus, a probation violation
    need be proven only by a preponderance of the evi-
    dence.’’ (Citation omitted; emphasis in original; internal
    quotation marks omitted.) State v. Megos, 176 Conn.
    App. 133, 139, 
    170 A.3d 120
    (2017).
    A violation of probation hearing is comprised of an
    evidentiary phase and dispositional phase. State v. Pres-
    ton, 
    286 Conn. 367
    , 375–76, 
    944 A.2d 276
    (2008). ‘‘In the
    evidentiary phase, [a] factual determination by a trial
    court as to whether a probationer has violated a condi-
    tion of probation must first be made. . . . In the dispo-
    sitional phase, [i]f a violation is found, a court must
    next determine whether probation should be revoked
    because the beneficial aspects of probation are no
    longer being served.’’ (Internal quotation marks omit-
    ted.) State v. Fletcher, 
    183 Conn. App. 1
    , 8, 
    191 A.3d 1068
    , cert. denied, 
    330 Conn. 918
    , 
    193 A.3d 1212
    (2018);
    State v. 
    Megos, supra
    , 
    176 Conn. App. 139
    .
    ‘‘With respect to the evidentiary phase of a revocation
    proceeding, [t]o support a finding of probation viola-
    tion, the evidence must induce a reasonable belief that
    it is more probable than not that the defendant has
    violated a condition of his or her probation. . . . This
    court may reverse the trial court’s initial factual deter-
    mination that a condition of probation has been violated
    only if we determine that such a finding was clearly
    erroneous. . . . A finding of fact is clearly erroneous
    when there is no evidence to support it . . . or when
    although there is evidence to support it, the reviewing
    court on the entire evidence is left with the definite
    and firm conviction that a mistake has been committed.
    . . . In making this determination, every reasonable
    presumption must be given in favor of the trial court’s
    ruling.’’ (Citation omitted; internal quotation marks
    omitted.) State v. Tucker, 
    179 Conn. App. 270
    , 282–83,
    
    178 A.3d 1103
    , cert. denied, 
    328 Conn. 917
    , 
    180 A.3d 963
    (2018); see also State v. Maurice M., 
    303 Conn. 18
    ,
    26–27, 
    31 A.3d 1063
    (2011).
    In the present case, Heinmiller arranged for the confi-
    dential informant to make a controlled purchase of
    crack cocaine on December 10, 2015. After placing the
    order, the confidential informant proceeded to the area
    of Park Avenue and Olive Street to obtain the drugs.
    Heinmiller, along with other members of the task force,
    kept the confidential informant under constant surveil-
    lance. From a distance of 100 feet, Heinmiller observed
    a woman approach the confidential informant and
    engage in a hand-to-hand drug transaction. As the seller
    walked away, she approached Heinmiller’s location,
    walking past him at a distance of approximately five
    feet.
    After learning the possible identity of the seller from
    a fellow officer, Heinmiller entered the information into
    a database, obtained a photograph of her and ‘‘immedi-
    ately identified her as [the] suspect.’’ Heinmiller also
    identified the defendant as the seller at the violation of
    probation hearing.
    We cannot conclude that the evidence was insuffi-
    cient to support the court’s finding that the defendant
    had violated her probation. The court was free to credit
    Heinmiller’s observations and identifications. On the
    basis of the evidence presented at the violation of proba-
    tion hearing, the court’s finding was not clearly errone-
    ous. See, e.g., State v. Shakir, 
    130 Conn. App. 458
    ,
    468–69, 
    22 A.3d 1285
    , cert. denied, 
    302 Conn. 931
    , 
    28 A.3d 345
    (2011). To the extent that the defendant con-
    tends that we should disregard Heinmiller’s identifica-
    tion, we simply note that the weight to be given to
    the evidence and credibility determinations are decided
    solely by the trier of fact. 
    Id., 469. This
    claim, therefore,
    must fail.
    II
    The defendant next claims that her right to due pro-
    cess was violated by the identification procedures used
    in this case. Specifically, the defendant argues that the
    court failed to perform the analysis of the reliability
    of the out-of-court identification pursuant to Neil v.
    Biggers, 
    409 U.S. 188
    , 
    93 S. Ct. 375
    , 
    34 L. Ed. 2d 401
    (1972),5 and that, as a result, her federal right to due
    process was violated.6 She further contends that the in-
    court identification by Heinmiller violated her right to
    due process because it was ‘‘irreparably tainted’’ by the
    use of an unnecessarily suggestive out-of-court identifi-
    cation procedure.7 The state counters that the defen-
    dant failed to preserve her claim pertaining to the out-
    of-court identification and that the record is inadequate
    to review it 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). Finally,
    the state asserts that the defendant’s derivative claim
    regarding the in-court identification necessarily fails if
    we decline to review the merits of the due process
    challenge to the out-of-court identification. See, e.g.,
    State v. Harris, 
    330 Conn. 91
    , 113–14, 
    191 A.3d 119
    (2018). We agree with the state.
    The following facts are necessary for our discussion.
    As we previously stated, Heinmiller had observed the
    controlled narcotics purchase from a distance of 100
    feet and viewed the seller as she came within five feet
    of his location following the transaction. Using informa-
    tion from the confidential informant and other members
    of the task force, he learned the possible name of the
    seller. He entered this name into a probation database,
    which then displayed a photograph. He ‘‘immediately
    identified her as [the seller he had observed on Decem-
    ber 10, 2015].’’ The state offered this photograph from
    the probation database for admission into evidence. In
    the absence of an objection from the defendant, the
    court admitted this photograph into evidence. Hein-
    miller previously had identified the defendant in the
    courtroom at the violation of probation hearing.
    In her appellate brief, the defendant does not claim
    to have objected to the admission of the photograph into
    evidence and acknowledges that she did not specifically
    request the court to conduct an analysis pursuant to
    Neil v. 
    Biggers, supra
    , 
    409 U.S. 188
    . Instead, she
    requests Golding review of her due process claim.
    Under this familiar test, ‘‘[a] defendant can prevail on
    a claim of constitutional error not preserved at trial
    only if all of the following conditions are met: (1) the
    record is adequate to review the alleged claim of error;
    (2) the claim is of constitutional magnitude alleging
    the violation of a fundamental right; (3) the alleged
    constitutional violation . . . exists and . . . deprived
    the defendant of a fair trial; and (4) if subject to harmless
    error analysis, the state has failed to demonstrate harm-
    lessness of the alleged constitutional violation beyond
    a reasonable doubt. In the absence of any one of these
    conditions, the defendant’s claim will fail. The appellate
    tribunal is free, therefore, to respond to the defendant’s
    claim by focusing on whichever condition is most rele-
    vant in the particular circumstances.’’ (Emphasis in
    original; internal quotation marks omitted.) State v.
    Davis, 
    186 Conn. App. 385
    , 393–94,        A.3d     (2018),
    cert. denied, 
    330 Conn. 965
    ,         A.3d      (2019); see
    also State v. Brown, 
    185 Conn. App. 806
    , 810, 
    198 A.3d 687
    (2018) (defendant bears burden of providing ade-
    quate record).
    The state argues that this issue is controlled by State
    v. Collins, 
    124 Conn. App. 249
    , 
    5 A.3d 492
    , cert. denied,
    
    299 Conn. 906
    , 
    10 A.3d 523
    (2010). In that case, the
    defendant claimed, inter alia, that a pretrial identifica-
    tion procedure was unnecessarily suggestive, thus taint-
    ing an in-court identification at his violation of
    probation hearing. 
    Id., 251–52. In
    declining to review
    this unpreserved claim, we stated: ‘‘Defense counsel
    did not make a motion to suppress the identification
    or object to the admission of [the pretrial] identification,
    and no evidentiary hearing was held regarding the evi-
    dence. Consequently, the court did not make any factual
    findings or legal conclusions concerning the sugges-
    tiveness of the procedures employed or the reliability
    of [the] in-court identification. Without such findings,
    the record is inadequate for our review. See State v.
    Necaise, 
    97 Conn. App. 214
    , 219, 
    904 A.2d 245
    (resolu-
    tion of whether pretrial identification procedure vio-
    lates defendant’s due process rights requires fact-
    finding function of trial court), cert. denied, 
    280 Conn. 942
    , 
    912 A.2d 478
    (2006); State v. Sargent, 87 Conn.
    App. 24, 30, 
    864 A.2d 20
    , cert. denied, 
    273 Conn. 912
    ,
    
    870 A.2d 1082
    (2005).’’ State v. 
    Collins, supra
    , 256–57.
    Similarly, in the present case, the court, in the
    absence of a motion to suppress or challenge to the
    admission into evidence of the photograph from the
    probation database, did not make factual findings con-
    cerning the out-of-court identification by Heinmiller. As
    a result of the evidentiary lacuna, the record is inade-
    quate, and the defendant’s claim regarding the out-of-
    court identification fails to satisfy the first prong of
    Golding. Additionally, the defendant’s dependent claim
    regarding the in-court identification also must fail.
    III
    The defendant finally claims that the court violated
    her right to due process when it denied her the right
    to confront an adverse witness, namely, the confidential
    informant. Specifically, she contends that the court
    should have concluded that her strong interest in con-
    frontation outweighed the state’s interest in protecting
    the identity of informants.8 The state counters that the
    record is inadequate to review this due process claim.
    We agree with the state.
    The following additional facts are necessary for our
    discussion. Prior to the start of the violation of proba-
    tion hearing, the defendant filed a motion for disclosure
    of the identity of the confidential informant. In her
    motion, dated January 17, 2017, the defendant argued
    that the confidential informant was a necessary witness
    because that individual was ‘‘the only other person that
    was present during the alleged transaction.’’ She further
    posited that the testimony of the confidential informant
    would be beneficial to her, was material to the issues,
    and would enable her to prepare an adequate defense.
    In support of her motion, the defendant relied on Rovi-
    aro v. United States, 
    353 U.S. 53
    , 61, 
    77 S. Ct. 623
    , 1 L.
    Ed. 2d 639 (1957)9 and State v. Hernandez, 
    254 Conn. 659
    , 
    759 A.2d 79
    (2000).10
    On February 22, 2017, prior to the start of the eviden-
    tiary phase of the violation of probation hearing, the
    court heard argument regarding the motion for disclo-
    sure. Defense counsel emphasized the ability of the
    confidential informant to identify the seller of the crack
    cocaine. In response, the state questioned whether the
    due process concerns raised by the defendant applied
    in a violation of probation hearing. Defense counsel
    countered that even in a violation of probation hearing,
    the defendant was entitled to due process, which
    included the right to confront and cross-examine the
    witnesses against her, including the confidential
    informant.11
    After hearing from the parties, the court noted that
    it was not deciding the defendant’s guilt with respect
    to the underlying charges, but, rather, whether she had
    violated the terms of her probation. It then stated: ‘‘Evi-
    dentiary concerns that are presented in a hearing [con-
    cerning a] violation of probation are such that even
    hearsay is admitted and the question becomes the relia-
    bility of the hearsay offer and the rules of evidence are
    in fact in terms of violation of probation proceeding,
    quite relaxed in essence and . . . at this point . . .
    your request . . . for the state to disclose . . . the
    name of the confidential informant is denied.’’
    During the evidentiary phase of the violation of proba-
    tion hearing, Heinmiller testified that he personally had
    worked with this confidential informant a minimum of
    thirty times and characterized this individual as
    ‘‘proven’’ and ‘‘very reliable.’’ Heinmiller also stated that
    disclosure of the confidential informant’s identity
    would jeopardize both future police investigations and
    his or her physical safety. At some point during Hein-
    miller’s testimony, the state offered a written statement
    from the confidential informant into evidence. The
    court admitted this statement into evidence, over the
    defendant’s objection that it constituted a due pro-
    cess violation.12
    Although the defendant directly challenged the denial
    of her motion for disclosure of the identity of the confi-
    dential informant before the trial court, citing Roviario
    and Hernandez, she has not done so in this appeal.
    Instead, the defendant has enlarged her due process
    claim beyond her objection to the admission of the
    confidential informant’s written statement to include
    the name of the seller. Moreover, she has amalgamated
    her due process claim with the denial of her motion.
    Our focus, therefore, is directed to the legal issue
    presented in the defendant’s appellate brief, that is,
    whether her due process right to confront an adverse
    witness in a violation of probation hearing was violated
    when Heinmiller testified that he had learned how the
    seller had identified herself to the confidential infor-
    mant during the illicit drug transaction. Specifically, the
    defendant argues in her appellate brief that the court
    failed to balance her interest in confronting the confi-
    dential informant against the state’s reasons for not
    producing the confidential informant at the hearing and
    the reliability of the proffered hearsay. See, e.g., State
    v. Giovanni P., 
    155 Conn. App. 322
    , 335, 
    110 A.3d 442
    ,
    cert. denied, 
    316 Conn. 909
    , 
    111 A.3d 883
    (2015). At the
    hearing, the defendant did not object to this testimony,
    nor did she specifically argue that this identification
    violated her due process right as a result of the inability
    to confront the adverse witness. The trial court, there-
    fore, was not provided fair notice of claim articulated
    to this court. See State v. Jorge P., 
    308 Conn. 740
    , 753–
    54, 
    66 A.3d 869
    (2013); State v. McKethan, 184 Conn.
    App. 187, 193 n.2, 
    194 A.3d 293
    , cert. denied, 
    330 Conn. 931
    , 
    194 A.3d 779
    (2018). We recently stated: ‘‘This court
    has held that a defendant’s due process claim is unpre-
    served where the defendant never argued to the trial
    court that it was required to balance his interests in
    cross-examining [an adverse witness] against the state’s
    good cause for not calling the [adverse witness] as a
    witness.’’ State v. 
    Tucker, supra
    , 
    179 Conn. App. 278
    n.4. Accordingly, we conclude that this issue was not
    preserved for appellate review.
    The defendant requests that we review her constitu-
    tional claim pursuant to the Golding doctrine. We con-
    clude that the record is inadequate, and, thus, this claim
    fails to satisfy the first prong of Golding. See, e.g., State
    v. Medina, 
    170 Conn. App. 609
    , 613, 
    155 A.3d 285
    (unless
    defendant has demonstrated that record is adequate for
    appellate review, appellate tribunal will not consider
    merits of defendant’s claim), cert. denied, 
    325 Conn. 914
    , 
    159 A.3d 231
    (2017).
    We begin our analysis by setting forth the limited due
    process rights afforded to a defendant in a violation of
    probation hearing. ‘‘Probation revocation proceedings
    fall within the protections guaranteed by the due pro-
    cess clause of the fourteenth amendment to the federal
    constitution . . . . Probation itself is a conditional lib-
    erty and a privilege that, once granted, is a constitution-
    ally protected interest . . . . The revocation
    proceeding must comport with the basic requirements
    of due process because termination of that privilege
    results in a loss of liberty.’’ (Internal quotation marks
    omitted.) State v. Andaz, 
    181 Conn. App. 228
    , 232–33,
    
    186 A.3d 66
    , cert. denied, 
    329 Conn. 901
    , 
    184 A.3d 1214
    (2018). ‘‘[T]he minimum due process requirements for
    revocation of [probation] include written notice of the
    claimed [probation] violation, disclosure to the [proba-
    tioner] of the evidence against him, the opportunity
    to be heard in person and to present witnesses and
    documentary evidence, the right to confront and cross-
    examine adverse witnesses in most instances, a neutral
    hearing body, and a written statement as to the evidence
    for and reasons for [a probation] violation. . . .
    Despite that panoply of requirements, a probation revo-
    cation hearing does not require all of the procedural
    components associated with an adverse criminal pro-
    ceeding.’’ (Internal quotation marks omitted.) State v.
    Barnes, 
    116 Conn. App. 76
    , 79, 
    974 A.2d 815
    , cert.
    denied, 
    293 Conn. 925
    , 
    980 A.2d 913
    (2009); see also
    State v. Giovanni 
    P., supra
    , 
    155 Conn. App. 334
    –35.
    This court, on several occasions, has considered an
    unpreserved due process claim that originated in the
    inability to confront and cross-examine an adverse wit-
    ness in a violation of probation hearing. For example,
    in State v. 
    Shakir, supra
    , 
    130 Conn. App. 468
    , this court
    noted that the right to confront a witness in a violation
    of probation hearing is not absolute. Furthermore, the
    constitutional requirements for such a hearing were
    codified in rule 32.1 of the Federal Rules of Criminal
    Procedure, which provides that a defendant is entitled
    to ‘‘question any adverse witness unless the court deter-
    mined that the interest of justice does not require the
    witness to appear . . . .’’ (Internal quotation marks
    omitted.) 
    Id., 467. Stated
    differently, ‘‘the court should
    balance, on the one hand, the defendant’s interest in
    confronting the [witness], against, on the other hand,
    the government’s reasons for not producing the witness
    and the reliability of the proffered hearsay.’’ (Internal
    quotation marks omitted.) 
    Id., 468. This
    court ultimately
    concluded that the reasons for not producing the
    adverse witness were not established in the proceeding
    before the trial court, and, therefore, the record was
    inadequate for Golding review. 
    Id. As a
    result, this court
    declined to consider the merits of the defendant’s claim.
    
    Id., 466. More
    recently, in State v. 
    Tucker, supra
    , 179 Conn.
    App. 281, this court expressly stated that ‘‘where the
    defendant does not request that the court conduct the
    Shakir balancing test or make a good cause finding,
    the record is inadequate for review of a due process
    claim under the first prong of Golding.’’ In Tucker, we
    reasoned that the defendant had failed to sustain his
    burden of establishing an adequate record for Golding
    review of his due process claim that he was not able
    to confront and cross-examine an adverse witness in a
    violation of probation hearing where (1) the defendant
    had failed to request the court to conduct the Shakir
    balancing test, (2) the state had no notice of the due
    process claim and, therefore, did not present its reasons
    for not producing the witness at the hearing, (3) the
    record was silent as why a 911 recording was used in
    place of the witness and (4) the record was silent as
    to whether the reasons for not producing the witness
    amounted to good cause. 
    Id. We concluded
    that ‘‘[u]nder
    these circumstances, the state was not responsible for
    the gap in the evidence, and it would be patently unfair
    to address the defendant’s due process claim on the
    basis of this record.’’ 
    Id., 281–82; see
    also State v.
    Polanco, 
    165 Conn. App. 563
    , 575–76, 
    140 A.3d 230
    , cert.
    denied, 
    322 Conn. 906
    , 
    139 A.3d 708
    (2016).
    In the present case, the defendant failed to request
    that the trial court conduct the Shakir balancing test.
    We therefore conclude, as we did in Tucker, Polanco
    and Shakir, that the defendant failed to sustain her
    burden of establishing an adequate record for review,
    as required by the first prong of Golding. Accordingly,
    we decline to consider the merits of this unpreserved
    appellate claim.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    The court did not set forth a detailed memorandum of decision specifi-
    cally listing all of the facts set forth herein. On two occasions, however, it
    specifically stated that Heinmiller was a credible witness.
    2
    In his report setting forth the details of the drug sale, Heinmiller indicated
    that the confidential informant had told him that the seller of the drugs
    identified herself as ‘‘Timberlyn’’ or ‘‘Timberland.’’ This report was not admit-
    ted into evidence at the violation of probation hearing.
    3
    The record does not contain a transcript of the court’s decision, as is
    required by Practice Book § 64-1 (a). Additionally, the defendant failed to
    take any steps to obtain a decision in compliance with our rules of practice.
    ‘‘In some cases in which the requirements of Practice Book § 64-1 (a) have
    not been followed, this court has declined to review the claims raised on
    appeal due to the lack of an adequate record.’’ Emeritus Senior Living v.
    Lepore, 
    183 Conn. App. 23
    , 25 n.2, 
    191 A.3d 212
    (2018).
    In the present case, the ability of this court to review the claims raised
    by the defendant in this appeal has not been hampered by the failure to
    comply with our rules of practice. Nevertheless, we remind counsel of
    the obligation to provide this court with a signed transcript or a written
    memorandum of decision in accordance with Practice Book § 64-1. See State
    v. Gansel, 
    174 Conn. App. 525
    , 526 n.1, 
    166 A.3d 904
    (2017).
    4
    The defendant also contends that Heinmiller’s identification was ‘‘tainted
    by the unnecessarily suggestive procedure utilized by the police’’ and, there-
    fore, was unreliable and cannot form the basis for the finding that she
    violated her probation. As we conclude in part II of this opinion, the record
    is inadequate to review the defendant’s claim regarding the identification
    procedures used in this case. Accordingly, this argument regarding the
    sufficiency of the evidence also fails.
    5
    Our Supreme Court recently stated: ‘‘The test for determining whether the
    state’s use of an unnecessarily suggestive identification procedure violates
    a defendant’s federal due process rights derives from the decisions of the
    United States Supreme Court in Neil v. Biggers, [supra, 
    409 U.S. 196
    –97],
    and Manson v. Brathwaite, 
    432 U.S. 98
    , 113–14, 
    97 S. Ct. 2243
    , 
    53 L. Ed. 2d 140
    (1977). As the court explained in Brathwaite, fundamental fairness is
    the standard underlying due process, and, consequently, reliability is the
    linchpin in determining the admissibility of identification testimony . . . .
    Thus, the required inquiry is made on an ad hoc basis and is two-pronged:
    first, it must be determined whether the identification procedure was
    unnecessarily suggestive; and second, if it is found to have been so, it
    must be determined whether the identification was nevertheless reliable
    based on examination of the totality of the circumstances.’’ (Citation omit-
    ted; emphasis added; internal quotation marks omitted.) State v. Harris,
    
    330 Conn. 91
    , 101, 
    191 A.3d 119
    (2018).
    6
    As noted by the state, subsequent to the filing of the defendant’s appellate
    brief, our Supreme Court issued its decision in State v. Harris, 
    330 Conn. 91
    , 
    191 A.3d 119
    (2018). In that case, the defendant argued, inter alia, that
    our Supreme Court should reject the framework of Neil v. 
    Biggers, supra
    ,
    
    409 U.S. 199
    –200, for purposes of determining whether article first, § 8, of
    the Connecticut constitution requires suppression of out-of-court and in-
    court witness identifications. State v. 
    Harris, supra
    , 114–15. After applying
    the factors established in State v. Geisler, 
    222 Conn. 672
    , 684–85, 
    610 A.2d 1225
    (1992), it concluded that our state constitution afforded greater protec-
    tion than the minimum standard set forth in the federal constitution. State
    v. 
    Harris, supra
    , 116.
    7
    See, e.g., State v. Dickson, 
    322 Conn. 410
    , 420, 
    141 A.3d 810
    (2016) (both
    initial identification, if unduly suggestive, and in-court identification may
    be excluded if improper procedure in former created substantial likelihood
    of misidentification), cert. denied,       U.S.      , 
    137 S. Ct. 2263
    , 
    198 L. Ed. 2d
    713 (2017).
    8
    The defendant does not argue that there was a violation of her constitu-
    tional rights under the confrontation clause of the sixth amendment to the
    United States constitution but relies solely on the due process clause of the
    fourteenth amendment.
    9
    ‘‘In Roviaro v. United States, [supra, 
    353 U.S. 53
    ], the United States
    Supreme Court had occasion to define the nature and scope of the infor-
    mant’s privilege. What is usually referred to as the informer’s privilege is
    in reality the Government’s privilege to withhold from disclosure the identity
    of persons who furnish information of violations of law to officers charged
    with enforcement of that law. . . . The purpose of the privilege is the
    furtherance and protection of the public interest in effective law enforce-
    ment. The privilege recognizes the obligation of citizens to communicate
    their knowledge of the commission of crimes to law-enforcement officials
    and, by preserving their anonymity, encourages them to perform that obliga-
    tion. . . .
    ‘‘Roviaro established a test for assessing challenges to the applicability
    of the informant’s privilege. This test involves the balancing of two competing
    interests: (1) the preservation of the underlying purpose of the privilege;
    and (2) the fundamental requirements of fairness. . . . The underlying pur-
    pose of the privilege is to protect the public interest in the flow of information
    to law enforcement officials. The fundamental requirements of fairness
    comprise the defendant’s right to a fair trial, including the right to obtain
    information relevant and helpful to a defense. . . . Whether [disclosure is
    warranted depends] on the particular circumstances of each case, taking
    into consideration the crime charged, the possible defenses, the possible
    significance of the informer’s testimony, and other relevant factors.’’ (Inter-
    nal quotation marks omitted.) State v. Crespo, 
    145 Conn. App. 547
    , 568–69,
    
    76 A.3d 664
    (2013), aff’d, 
    317 Conn. 1
    , 
    115 A.3d 447
    (2015).
    10
    In State v. 
    Hernandez, supra
    , 
    254 Conn. 665
    , our Supreme Court noted
    that the determination of whether the identity of a confidential informant
    should be disclosed to a defendant lies within the discretion of the trial
    court. It also noted that Roviaro involved the application of federal law.
    
    Id., 666 n.7;
    see also State v. Richardson, 
    204 Conn. 654
    , 658, 
    529 A.2d 1236
    (1987) (Roviaro did not rest on constitutional grounds).
    11
    Specifically, defense counsel stated: ‘‘At a violation of probation hearing,
    the defendant is still afforded due process based on the fourteenth amend-
    ment of the [United States] constitution and the right to confront and cross-
    examine witnesses, so I do think that the ability to do that to the complaining
    witness is applicable here.’’
    12
    Defense counsel objected as follows: ‘‘I’m not objecting based on hear-
    say. I’m objecting based on [the defendant’s] fourteenth amendment constitu-
    tional right to due process. She does have . . . the right to confront the
    witnesses against her. That’s a constitutional right. Due process is implicated
    in a violation of probation hearing.’’