State v. Grant

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STATE OF CONNECTICUT v. CECIL GRANT
(AC 35053)
DiPentima, C. J., and Prescott and Bear, Js.
Argued September 8—officially released December 23, 2014
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
James B. Streeto, assistant public defender, for the
appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and David L. Zagaja, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Cecil Grant, appeals
from the judgment of conviction, rendered after a jury
trial, of conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-134 (a) (2) and
53a-48, attempt to commit robbery in the first degree
in violation of General Statutes §§ 53a-134 (a) (2) and
53a-49 (a) (2), and assault in the first degree in violation
of General Statutes §§ 53a-59 (a) (5) and 53a-8. The
defendant claims on appeal that (1) the trial court
improperly denied his motion to suppress the victim’s
pretrial and trial identifications, (2) the court improp-
erly permitted the state to present evidence of
uncharged misconduct, and (3) he was denied his right
to a fair trial due to prosecutorial impropriety. We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. At approximately 10 p.m. on April 30, 2011, the
defendant and two other individuals, Derek Newkirk
and Mike Anderson, were visiting with Gustin Douglas
at Douglas’ apartment at 502 Mary Shepard Place in
Hartford. The defendant and Newkirk told Douglas that
they needed money, and the group discussed restau-
rants in the area that might have delivery persons who
retained payments between deliveries. The defendant
used Douglas’ cell phone to order a pizza from Pizza
101 on Albany Avenue in Hartford. While waiting for
the delivery person to arrive, the defendant displayed
a revolver, waving it around and passing it between
himself and Newkirk before putting it into the pocket
of his hooded sweatshirt. Newkirk and the defendant
went outside to meet the delivery driver; Douglas and
Anderson remained inside.
At approximately 11 p.m., the victim, a delivery per-
son for Pizza 101, was dispatched to make a delivery
to 502 Mary Shepard Place. She initially had trouble
finding the address. She called the telephone number
indicated on the order slip, and a man answered and
provided her with directions. When she arrived at the
address, the defendant approached the front passenger
door of the victim’s vehicle. Newkirk stood near the
defendant. Both men’s faces were uncovered and
clearly visible to the victim. The defendant spoke with
the victim through the open passenger side window,
asking her several times if she had change; the victim
responded each time that she did not. The defendant
then displayed a revolver, which he placed against the
passenger door, stating, ‘‘[W]ell, gimme this.’’ Simulta-
neously, the defendant attempted to open the front pas-
senger door but was unable to do so.
After seeing the defendant holding the revolver, the
victim started to drive away, at which time the defen-
dant began shooting. Five bullets entered the car, strik-
ing the victim in the neck, chin, shoulder and arm.
Because Mary Shepard Place is a dead-end street, the
victim had to turn her vehicle around and pass by the
defendant and Newkirk in order to get away. The victim
drove herself to a hospital. The defendant and Newkirk
returned to Douglas’ apartment. Douglas, who had
heard the gunshots, observed that the defendant and
Newkirk were acting ‘‘[l]ike they were nervous’’ when
they returned, but he did not discuss with them what
had happened outside.
The police were dispatched to the hospital, where
they photographed and secured the victim’s vehicle. A
detective later interviewed the victim about the shoot-
ing. The victim described her shooter as a black male
of light to medium complexion, short hair, skinny build,
five feet, six inches tall, between sixteen and seventeen
years old, wearing jeans and a black hooded sweatshirt
over a shirt with a design on it. The police investigated
the cell phone number that the victim had called to
obtain directions prior to the shooting, which eventually
led them to speak with Douglas. Douglas provided the
police with details about his interactions with the defen-
dant and Newkirk on the night of the shooting, which
led the police to consider them as suspects. Douglas
also identified photographs of the defendant and Newk-
irk in police photographic arrays. The police later asked
the victim to look at photographic arrays, from which
the victim was able to identify both the defendant
and Newkirk.
The defendant was arrested and charged with con-
spiracy to commit robbery in the first degree, attempt
to commit robbery in the first degree, and assault in
the first degree. The jury found the defendant guilty
of all the charges. The court thereafter sentenced the
defendant to a total effective term of sixty years of
incarceration, suspended after forty years, followed by
five years of probation. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims on appeal that the court
improperly denied his motion to suppress the victim’s
pretrial and trial identification on the ground that the
photographic array and procedures used by the police
to identify him were unduly suggestive.1 In particular,
the defendant argues that important protocols concern-
ing the administration of photographic arrays were not
followed and that aspects of the photographs used in
the array rendered the array itself unnecessarily sugges-
tive. In response, the state contends that the defendant
failed to raise to the trial court seven of the eight pur-
ported problems with the array and its administration
now identified by the defendant in his appellate brief
and, thus, they are not properly preserved for appellate
review. With respect to the single issue that the state
concedes was preserved, which involves the sugges-
tiveness of the array itself, the state contends that the
court properly ruled that the array was not unnecessar-
ily suggestive. Ultimately, we conclude that the defen-
dant has failed to demonstrate that the identification
procedures and the array utilized by the police in the
present case were unnecessarily suggestive and, thus,
has failed show that the court improperly denied his
motion to suppress.
The following additional facts, which are undisputed
in the record or which the court found in ruling on the
motion to suppress, are relevant to our resolution of
the defendant’s claim. The police developed the defen-
dant and Newkirk as possible suspects on the basis of
their interview of Douglas and his identification of the
defendant and Newkirk in photographic arrays.2 The
police next prepared two photographic arrays to pre-
sent to the victim, one containing a photograph of the
defendant and the other a photograph of Newkirk. Each
array consisted of a single sheet of paper containing
eight headshot photographs of different men numbered
one through eight. In the array containing the defen-
dant’s photograph, the defendant was the only person
that appeared to be wearing a hooded sweatshirt. Other-
wise, the individuals in the defendant’s array all had
similar appearances and physical characteristic.
On July 12, 2011, approximately ten weeks after the
shooting, the victim was asked by Detective Anthony
Pia of the Hartford Police Department, who had taken
over the investigation into the shooting, to meet and
to look at photographic arrays. Prior to showing the
arrays to the victim, the detective gave her an instruc-
tion sheet that provided, among other things, that the
photograph of a suspect may or may not be included
in the array and that the police would continue to inves-
tigate the incident regardless of whether the victim
identified someone in the array. The victim signed the
instruction sheet, acknowledging that she understood
those directions.3 After the victim was shown the array
containing the defendant’s photograph, the victim iden-
tified the defendant as her shooter.
Prior to trial, the defendant filed a motion to suppress
any pretrial or in-court identification of the defendant
by the victim. The defendant asserted in his motion that
the pretrial identification procedures used by the police
were unnecessarily suggestive and unreliable under the
circumstances, that any later in-court identification by
the victim necessarily would be tainted irretrievably by
the prior illegal identification, and that any identifica-
tion would fail to meet the standards of neutrality and
reliability as enunciated in our case law. The court held
an evidentiary hearing on the motion to suppress, at
which the victim and Pia testified.
Following the evidentiary hearing, the court heard
arguments from the parties. The defendant argued that
the array containing his photograph was unnecessarily
suggestive because he was the only person in the array
that was wearing a hooded sweatshirt, and the victim
previously had provided the police with a description
indicating that her assailant had been wearing a black
hooded sweatshirt. The defendant made no other argu-
ments regarding the suggestiveness of the array itself
or the procedures utilized by the police in obtaining
the identification. The defendant did raise several addi-
tional points relative to the overall reliability of the
victim’s identification, including that the victim’s
encounter with her assailant had occurred at night;
that her opportunity to observe him lasted only a few
minutes, a part of which time she also was observing
Newkirk; that she was in fear for her life at the time
of the incident; and that she already had started to drive
away when the gunshots were fired and, thus, did not
have an opportunity to see who fired the gun. The state
argued that the fact that the defendant was the only
one in the array wearing a hooded sweatshirt was not,
in and of itself, enough to support a finding that the
array was unnecessarily suggestive, and that even if
the court disagreed, the identification was nonetheless
reliable when viewed in light of the victim’s testimony
in its entirety.
After arguments concluded, the court rendered an
oral decision, denying the motion to suppress. It found
on the basis of its own review of the photographic array
that the array was not unduly suggestive. The court
rejected the defendant’s suggestion that the victim had
identified the defendant because he was the only one
pictured in the array wearing a hooded sweatshirt, not-
ing that the victim’s prior description was that the
shooter had been wearing a black hooded sweatshirt
and the defendant was wearing a white hooded
sweatshirt in the array. The court suggested that if the
victim had identified her assailant solely on the basis
of clothing, as the defendant suggested, she was just
as likely to have picked one of the subjects wearing a
black shirt.
Following the trial, the court issued a written memo-
randum of decision setting forth in further detail its
findings of fact and conclusions of law regarding the
motion to suppress. The court concluded in relevant
part: ‘‘The police officers did not influence the [victim]
in any manner, nor did they direct [her] attention to
any photograph. . . . The individuals selected for the
array had similar physical characteristics. [The victim]
had ample opportunity to observe the defendant. She
spoke with him for several minutes, during that time
looking directly at the defendant, who was standing a
few feet away. There was sufficient light; there were
no visual obstructions or impediments. There is no evi-
dence of any discrepancy between [the victim]’s
description and the defendant’s actual appearance at
the time of the observations. Finally, [the victim] identi-
fied the defendant within weeks of the initial observa-
tion. Her identification was not hesitant; it was not
equivocal.’’
We begin our analysis of the defendant’s claim by
setting forth the well established legal principles and
standard of review that guide our consideration of a
constitutional challenge to an eyewitness identification.
As previously noted, ‘‘[i]n determining whether identifi-
cation procedures violate a defendant’s due process
rights, 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 sugges-
tive; 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. . . . We emphasized in [State v. Out-
ing, 298 Conn. 34, 48, 3 A.3d 1 (2010), cert. denied,
U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011)] that
[w]e continue to endorse and adhere to this widely
utilized analytical approach. . . . Therefore, [t]he criti-
cal question . . . is what makes a particular identifica-
tion procedure suggestive enough to require the court
to proceed to the second prong and to consider the
overall reliability of the identification. . . . In deciding
that question . . . the entire procedure, viewed in light
of the factual circumstances of the individual case . . .
must be examined to determine if a particular identifica-
tion is tainted by unnecessary suggestiveness. The indi-
vidual components of a procedure cannot be examined
piecemeal but must be placed in their broader context
to ascertain whether the procedure is so suggestive that
it requires the court to consider the reliability of the
identification itself in order to determine whether it
ultimately should be suppressed.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Revels, 313 Conn. 762, 771–72, 99 A.3d 1130(2014).
‘‘Upon review of a trial court’s denial of a motion to
suppress, [t]he court’s conclusions will not be disturbed
unless they are legally and logically inconsistent with
the facts. . . . [W]e will reverse the trial court’s ruling
[on evidence] only where there is abuse of discretion
or where an injustice has occurred . . . and we will
indulge in every reasonable presumption in favor of the
trial court’s ruling. . . . Because the issue of the relia-
bility of an identification involves the constitutional
rights of an accused . . . we are obliged to examine
the record scrupulously to determine whether the facts
found are adequately supported by the evidence and
whether the court’s ultimate inference of reliability was
reasonable.’’ (Internal quotation marks omitted.) State
v. Elliston, 86 Conn. App. 479, 482–83, 861 A.2d 563(2004), cert. denied, 273 Conn. 906, 868 A.2d 746 (2005).
‘‘Because the inquiry into whether evidence of pretrial
identification should be suppressed contemplates a
series of factbound determinations, which a trial court
is far better equipped than this court to make, we will
not disturb the findings of the trial court as to subordi-
nate facts unless the record reveals clear and manifest
error.’’ (Internal quotation marks omitted.) State v.
Johnson, 149 Conn. App. 816, 822, 89 A.3d 983, cert.
denied, 312 Conn. 915, 93 A.3d 597 (2014). With these
principles in mind, we turn to the defendant’s claim
that the court improperly denied his motion to suppress
because the photographic array and identification pro-
cedures the police utilized in the present case were
unnecessarily suggestive.
In his brief, the defendant contends, as he did to the
trial court, that his photograph impermissibly stood out
from the remaining subjects because he was the only
person in the array wearing a hooded sweatshirt. Addi-
tionally, he raises a number of other theories that were
not raised in the motion to suppress or argued by
defense counsel at the evidentiary hearing on the
motion, and that, consequently, never were considered
by the court in ruling on the motion. In particular, the
defendant describes the following additional concerns
with the photographs used in the array: the other sub-
jects look older than the victim’s initial estimate of her
assailant’s age; the skin tone of two of the subjects does
not match the victim’s prior description of a medium
to light complected black male; the victim described
her assailant as being approximately five feet, six inches
tall and skinny, and the defendant is the smallest person
in the array; and the defendant had the shortest haircut.
The defendant also raises the following additional con-
cerns with the identification procedure utilized by the
police: the police failed to inform the victim that she did
not need to make an identification; the administration of
the photographs was not double blind;4 and the photo-
graphs were presented to the victim simultaneously
rather than sequentially.5 The state argues that the addi-
tional theories that the defendant raises for the first
time on appeal are unpreserved and, thus, unreview-
able. Accordingly, before we can consider the merits
of the defendant’s claim regarding the suggestiveness
of the identification procedure, we must consider to
what extent the various theories supporting that claim
have been preserved for appellate review.
The defendant suggests that by moving to exclude
the victim’s identification from evidence on the general
ground that it was unnecessarily suggestive, he properly
preserved for appeal any and all theories supporting
that ground, regardless of whether they were actually
raised to or considered by the trial court in ruling on
his motion to suppress. It is well settled, however, that
‘‘[a] party cannot present a case to the trial court on
one theory and then seek appellate relief on a different
one . . . . For this court to . . . consider [a] claim on
the basis of a specific legal ground not raised during
trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party.’’ (Internal quo-
tation marks omitted.) State v. Santana, 313 Conn. 461,
466–67, 97 A.3d 963 (2014). In Santana, our Supreme
Court recently held that a party’s general denial made
in response to a hearsay objection was insufficient to
preserve for appeal, functionally or otherwise,6 any and
all hearsay exceptions that the party could have but
failed to argue before the trial court. Id., 468–69. We
can discern no reason why the present case is distin-
guishable from Santana with respect to the issue of
preservation. A general assertion that identification pro-
cedures were unnecessarily suggestive and that any
resulting identification should be excluded from evi-
dence is insufficient to preserve for appeal arguments
that the defendant might have but failed to argue before
the trial court in support of that assertion. To hold
otherwise would be unfair both to the trial court, which
never had an opportunity to consider the arguments
now raised on appeal in ruling on the defendant’s
motion to suppress, and to the state, which never had
notice and an opportunity to defend against such argu-
ments. We accordingly agree with the state that the
defendant’s arguments with respect to the sugges-
tiveness of the identification procedures largely are
unpreserved.
The defendant requests that to the extent we deter-
mine that certain aspects of his claim are not preserved,
we review them pursuant to State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989).7 Pursuant to Golding, ‘‘a defen-
dant 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 magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation clearly exists and
clearly 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.’’ (Emphasis omit-
ted; footnote omitted.) Id., 239–40. ‘‘The first two
[prongs of Golding] involve a determination of whether
the claim is reviewable; the second two . . . involve
a determination of whether the defendant may prevail
[on the merits].’’ (Internal quotation marks omitted.)
State v. Brown, 279 Conn. 493, 500, 903 A.2d 169 (2006).
Thus, Golding review of an unpreserved constitutional
claim is available provided that the defendant can ‘‘pre-
sent a record that is [adequate] for review and affirma-
tively [demonstrate] that his claim is indeed a violation
of a fundamental constitutional right.’’ (Internal quota-
tion marks omitted.) State v. Elson, 311 Conn. 726, 755,
91 A.3d 862 (2014).
We agree with the defendant that the reviewability
prongs of Golding are satisfied here. His challenge
regarding the suggestiveness of the identification proce-
dures implicates the reliability of the identification and,
thus, his constitutional right to due process. See State
v. Marquez, 291 Conn. 122, 137, 967 A.2d 56, cert. denied,
558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).
Furthermore, although the resolution of a claim of
unnecessary suggestiveness requires an ad hoc, fact-
based inquiry; see id., 156 n.33; the current record,
which includes both the photographic array and testi-
mony from the victim and Detective Pia regarding the
procedures followed,8 is sufficient for us to review the
defendant’s suggestiveness argument in its entirety to
determine whether the defendant has clearly estab-
lished a due process violation.
We turn then to the defendant’s specific arguments
regarding the suggestiveness of the array itself. At the
hearing on the motion to suppress, the defendant
argued that the array was unduly suggestive because
he was the only subject included in the array wearing
a hooded sweatshirt. He contends on appeal that this
was unduly suggestive because the victim previously
had described her assailant as wearing a hooded
sweatshirt and because, more generally, his hooded
sweatshirt made his photograph impermissibly stand
out from the other photographs. Although conducting
a live or photographic lineup in which the suspect is
the only one wearing ‘‘distinctive clothing [that] the
culprit allegedly wore’’ might be a sufficient basis to
conclude that the lineup was unnecessarily suggestive;
United States v. Wade, 388 U.S. 218, 233, 87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967); the trial court properly deter-
mined that such a concern was not present here.
Hooded sweatshirts, or ‘‘hoodies,’’ are not distinctive
items of clothing; rather, they are ubiquitous. See, e.g.,
People v. McBride, 14 N.Y.3d 440, 448, 928 N.E.2d 1027,
902 N.Y.S.2d 830 (hooded sweatshirt ‘‘generic and com-
mon article of clothing’’), cert. denied, U.S. , 131
S. Ct. 327, 178 L. Ed. 2d 212 (2010). Although the victim
had indicated to the police that the shooter had been
wearing a black hooded sweatshirt, it was not a promi-
nent feature of the victim’s identification of her assail-
ant, which included a number of other descriptive facts.
In his array photograph, the defendant was wearing a
white hooded sweatshirt, not a black hooded sweatshirt
as allegedly worn by the perpetrator. Further, nothing
in the record indicates that the victim relied on clothing
to identify the defendant’s photograph in the array; in
fact, the only testimony elicited at trial was to the con-
trary.9 Additionally, there was nothing unusual or dis-
tinctive about the white hoodie worn by the defendant
in the array photograph that arguably could be viewed
as making his photograph stand out from those of the
other subjects. Accordingly, as to the sole preserved
issue, we conclude that the court did not abuse its
discretion in rejecting the defendant’s argument that
his wearing a hooded sweatshirt in the photograph was
a valid basis for finding the array unnecessarily sug-
gestive.
The defendant also argues for the first time on appeal
that his photograph was the only one in the array that
matched the victim’s initial description regarding age,
height and body type, that two subjects in the array did
not have medium to light complexions in accordance
with the victim’s earlier description and that the defen-
dant’s haircut was the shortest. Although the trial court
did not consider these specific arguments, the court
did made an express finding that the subjects depicted
in the defendant’s photographic array all had similar
appearances, and that express finding is fully supported
by our own review of the array. The photographs in
the array only show the subjects’ heads and shoulders,
and there are no height indicators visible in the photo-
graphs. Accordingly, any significant differences in
height and body type are not readily observable from the
array. Although there certainly are differences between
the defendant and the other subjects in the array with
respect to skin tone, hair and other features, we agree
with the court that the subjects are sufficiently similar
in appearance to withstand any claim of unnecessary
suggestiveness.
We next turn to the defendant’s unpreserved argu-
ment that the identification procedures utilized by the
police in the present case were unnecessarily suggestive
because the administration of the photographs was not
double blind and sequential, and the police failed to
inform the victim that she did not need to make an iden-
tification.
As to the latter argument, we find that it lacks merit
because the instruction sheet given to the victim prior
to her viewing of the photographic array clearly pro-
vided that the perpetrator may or may not be one of
the persons in the photographs, and the array itself
contained a notice indicating that the victim ‘‘should
not conclude or guess that the photographs contain the
person who committed the offense under investi-
gation.’’
The defendant has also failed to demonstrate how
the failure by the police to use a double blind and
sequential photographic lineup in the present case ren-
dered the procedure actually used unnecessarily sug-
gestive. To the extent that the defendant has relied on
our Supreme Court’s decision in State v. Guilbert, 306
Conn. 218, 49 A.3d 705 (2012), that reliance is misplaced.
The principal issue before the court in Guilbert was
not whether any particular identification procedures
are constitutionally mandated, but whether courts are
obligated to admit under specified circumstances quali-
fied expert testimony concerning the fallibility of eye-
witness identification under State v. Porter, 241 Conn.
57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S.
1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), to aid
juries in their evaluation of identification evidence.
State v. Guilbert, supra, 221.
The court in Guilbert acknowledged ‘‘widespread
judicial recognition that eyewitness identifications are
potentially unreliable in a variety of ways unknown
to the average juror.’’ Id., 234. In particular, the court
mentioned that ‘‘[c]ourts across the country now accept
that [among other things] . . . identifications are
likely to be less reliable in the absence of a double-blind,
sequential identification procedure . . . .’’ (Footnotes
omitted.) Id., 237–39. Nothing in Guilbert, however,
suggests that if the police show the photographs to the
witness simultaneously and the procedure is adminis-
tered by an officer who knows the identity of the sus-
pect, the procedure is unnecessarily suggestive as a
matter of law. In ruling that experts in appropriate cir-
cumstances should be allowed to testify about issues
that may affect the accuracy of identifications, the court
was not concerned with the admissibility of identifica-
tion evidence, but rather with a jury’s proper exercise of
its duty to evaluate the weight to be given to a particular
eyewitness’ identification.
In State v. Marquez, supra, 291 Conn. 122, our
Supreme Court held that the use of a nondouble-blind
photographic array was not per se unduly suggestive,
and that identification procedures must be evaluated
for suggestiveness on a case-by-case basis. Id., 134–35.
This court recently applied that holding, post-Guilbert,
noting our inability ‘‘to discern anything in Guilbert
that would lead us to the conclusion that Marquez no
longer is good law.’’ State v. Johnson, supra, 149 Conn.
App. 821 n.4. The defendant is unable to point to any-
thing in the current record that establishes that the
identification procedure used in the present case was
unnecessarily suggestive other than baldly to state that
it was not double blind and sequential, a procedure
determined to be more reliable, but not, as explained,
constitutionally mandated.10 Consequently, the defen-
dant has failed to meet his burden under the third prong
of Golding of establishing a clear constitutional vio-
lation.
Because the defendant has failed to demonstrate that
the photographic array or the procedures utilized by
the police with the victim in identifying the defendant
were unnecessarily suggestive, we need not reach the
defendant’s arguments regarding the overall reliability
of the resulting identification. See State v. Nieves, 106
Conn. App. 40, 51, 941 A.2d 358, cert. denied, 286 Conn.
922, 949 A.2d 482 (2008); see footnote 1 of this opinion.
In sum, we reject the defendant’s claim that the court
improperly denied his motion to suppress.
II
The defendant next claims that the court improperly
allowed the state to present ‘‘a plethora of evidence’’
concerning uncharged misconduct of the defendant. In
response, the state argues that, contrary to the defen-
dant’s claim, it never introduced any evidence of
uncharged misconduct and, therefore, the defendant’s
claim fails as a matter of law. We agree with the state.
The following additional facts and procedural history
are relevant to our review of this claim. The state did
not present any evidence in its case-in-chief of other
crimes allegedly committed by the defendant. The
defendant presented an alibi defense, testifying on
direct examination that he was at his home in the south
end of Hartford at the time the victim was shot. At
the close of the defendant’s direct testimony, defense
counsel asked the defendant whether he had a gun with
him on the night the victim was shot and whether he
had shot anyone that night. In response to both ques-
tions, the defendant answered, ‘‘No.’’
During cross-examination, the prosecutor revisited
those responses. The prosecutor then asked the defen-
dant whether he remembered ‘‘the robbery at Franklin
Package store.’’11 Defense counsel immediately
objected, and asked the court to excuse the jury.
Defense counsel argued outside the presence of the
jury that she objected to any evidence being introduced
of other robberies or prior arrests involving the defen-
dant because the defendant had not been convicted
of any other crimes, and that any such evidence had
absolutely no probative value as to the defendant’s guilt
in the present matter and was extremely prejudicial.
The state argued that on the basis of the defendant’s
testimony that he was not involved in the shooting of the
victim and had never had a gun, the state was entitled to
question the defendant about earlier arrests and specific
acts of misconduct because they spoke to the defen-
dant’s veracity. The state specifically sought to question
the defendant about a robbery of a package store on
Franklin Avenue in Hartford that had occurred approxi-
mately five months prior to the present shooting, and
in which it was alleged that the defendant had spent
time asking the store attendant if she had change for
a hundred dollar bill before leaving and then returning
with another individual in masks to rob the store. The
state also sought to question the defendant about three
additional incidents that had occurred more than one
year prior to the current shooting, one involving an
arrest of the defendant and Newkirk for the theft of an
automobile in East Hartford during which the defendant
allegedly was in possession of a gun, and two other
incidents involving stolen jewelry.
When the court asked the state if it was offering the
evidence ‘‘as sort of a signature,’’ the state responded
that it was offered ‘‘for intent to commit the robbery
and identity.’’ The court ruled that it would allow the
state to introduce evidence only of the Franklin Package
incident because it involved sufficiently similar facts
and circumstances and was close enough in time that
its probative value outweighed any prejudice to the
defendant. The court clearly indicated that the state
was not allowed even to ask questions regarding any
of the other incidents.
The cross-examination of the defendant resumed,
and the following colloquy between the defendant and
the prosecutor took place with respect to the Franklin
Package robbery:
‘‘Q. Do you remember committing a robbery at the
Franklin Package store—
‘‘A. No.
‘‘Q. —December 22nd—
‘‘A. No, I do not.
‘‘Q. —five months before May 1st?
‘‘A. No, I do not.
‘‘Q. You do not?
‘‘A. No.
‘‘Q. Do you remember being with your brother,
Devin Kempson?
‘‘A. No, I do not.
‘‘Q. Do you remember going into that store, into that
package store and asking the attendant for $100 change?
‘‘A. No, I do not.
‘‘Q. You didn’t ask her for change for $100?
‘‘A. No, I did not.
‘‘Q. So, that wasn’t you?
‘‘A. No, it wasn’t.
‘‘Q. Then coming back with a mask on—
‘‘A. No.
‘‘Q. —and a gun in hand?
‘‘A. No, no.
‘‘Q. Wasn’t you?
‘‘A. Wasn’t me.’’
The Franklin Package robbery was referenced briefly
one other time, at the close of cross-examination, when
the prosecutor asked the defendant if he knew what a
revolver looked like and whether he ever had had a
revolver. The defendant stated that he knew what a
revolver was, but that he never had had one. The prose-
cutor then asked, ‘‘You didn’t have a revolver when
the Franklin Avenue package store was robbed?’’ The
defendant answered, ‘‘No.’’ The state never attempted
to present any extrinsic evidence of the defendant’s
alleged involvement in the Franklin Package incident.
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a criminal defendant is guilty
of the crime of which the defendant is accused. . . .
Such evidence cannot be used to suggest that the defen-
dant has a bad character or a propensity for criminal
behavior.’’ (Emphasis added; internal quotation marks
omitted.) State v. Randolph, 284 Conn. 328, 340, 933
A.2d 1158 (2007); see also Conn. Code Evid. § 4-5 (a).
In the present case, however, no facts of prior miscon-
duct by the defendant were ever admitted into evidence.
As we repeatedly have recognized, ‘‘a question from
counsel is not evidence of anything.’’ Zollo v. Commis-
sioner of Correction, 133 Conn. App. 266, 274 n.6, 35
A.3d 337, cert. granted on other grounds, 304 Conn.
910, 39 A.3d 1120 (2012); see also State v. Bonsu, 54
Conn. App. 229, 234–35, 734 A.2d 596 (rejecting claim
that prosecutor’s unanswered question about prior con-
viction was improperly elicited evidence because ‘‘ques-
tions are not evidence’’), cert. denied, 251 Conn. 909,
739 A.2d 1249 (1999).
Here, the jury was never presented with any actual
evidence of uncharged misconduct of the defendant.
The prosecutor’s questions were not evidence; it is the
responses to those questions that would constitute evi-
dentiary facts. Throughout his questioning by the prose-
cutor about the Franklin Package robbery, the
defendant maintained that he was not involved. The
state did not offer any evidence to rebut the defendant’s
testimony. Although the jury was entitled to disbelieve
the defendant’s testimony, it was not entitled to infer
that the opposite was true. The defendant has not cited
to any portion of the record that supports his claim
that ‘‘a plethora’’ of uncharged misconduct evidence
was admitted by the court, nor has our own review of
the record revealed any such evidence.
We recognize that in its instructions to the jury, the
court stated in relevant part that ‘‘[t]he state has offered
evidence of other acts of misconduct of the defendant.
The defendant denied the misconduct.’’ The court next
instructed the jury that such evidence was not admitted
to prove that the defendant had a bad character or a
tendency to commit criminal acts, but only to show or
establish intent. The jury was instructed that it could
consider such evidence only if the jury believed it and
found that it logically, rationally and conclusively sup-
ported the issue for which it was offered, namely, the
issue of intent.
We need not address, however, to what extent the
court’s instruction was unwarranted or misleading to
the jury in light of our conclusion that no uncharged
misconduct evidence actually was admitted. Neither
party has challenged the propriety of the court’s jury
instructions on appeal and, therefore, any error on the
part of the court has been waived. The mere fact that
the trial court instructed the jury in this manner does
not change the reality that, under our well established
law, no misconduct evidence was admitted into evi-
dence. Because we conclude that the court did not
admit any evidence of prior misconduct, we need not
discuss whether the evidence the state proffered would
have been admissible to establish either intent or iden-
tity. The defendant’s claim fails as a matter of law.
III
Finally, the defendant claims that he was deprived
of his due process right to a fair trial as a result of
prosecutorial impropriety. We consider the arguments
raised in support of this claim as falling roughly into
two categories. First, the defendant takes issue with
what he describes as the prosecutor’s overly aggressive
and sarcastic tone, both during the cross-examination
of the defendant and at closing argument, which the
defendant maintains impermissibly appealed to the
jury’s emotions and expressed the prosecutor’s per-
sonal belief as to the credibility of the defendant. Sec-
ond, the defendant argues that the prosecutor
improperly commented on the defendant’s failure to
call his mother as a witness in violation of our Supreme
Court’s holding in State v. Malave, 250 Conn. 722, 738,
737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S.
1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).12 With
the exception of the missing witness argument, we do
not agree with the defendant that the prosecutor
engaged in impropriety, nor do we conclude that the
Malave violation deprived the defendant of a fair trial.
Accordingly, we reject the defendant’s claim.
The standard we apply to claims of prosecutorial
impropriety is well established. ‘‘In analyzing claims
of prosecutorial impropriety, we engage in a two step
analytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry. . . . [If] a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Ross,
151 Conn. App. 687, 693, 95 A.3d 1208, cert. denied, 314
Conn. 926, A.3d (2014).
As an initial matter, we note that the defendant con-
cedes that he did not object at trial to any of the com-
ments that he now claims constitute prosecutorial
impropriety. ‘‘It is well established law, however, that a
defendant who fails to preserve claims of prosecutorial
[impropriety] need not seek to prevail under the specific
requirements of State v. Golding, [supra, 213 Conn.
239–40], and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test. . . . Our
Supreme Court has explained that the defendant’s fail-
ure to object at trial to each of the occurrences that
he now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the con-
trary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Maner, 147 Conn. App. 761, 782, 83 A.3d 1182, cert.
denied, 311 Conn. 935, 88 A.3d 550 (2014).
A
We first examine the defendant’s argument that, dur-
ing his cross-examination and at closing argument, the
prosecutor used overly sarcastic and aggressive tactics
that impermissibly appealed to the emotions of the jury
or expressed the prosecutor’s personal belief regarding
the defendant’s credibility. We are not persuaded that
the prosecutor crossed the line between permissible
argument and rhetoric to prosecutorial impropriety.
‘‘It is well established that a prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors by denigrating a witness through the frequent
and gratuitous use of sarcasm.’’ State v. Andrews, 313
Conn. 266, 283, 96 A.3d 1199 (2014). ‘‘[W]e have recog-
nized that the excessive use of sarcasm may improperly
influence a jury. . . . A prosecutor should conduct his
examination of a witness fairly, objectively and with
decorum, and he should not ridicule or browbeat a
witness. . . . [N]eedless sarcasm [is] inconsistent with
[a] state’s attorney’s professional responsibility . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Kendall, 123 Conn. App. 625, 637–38, 2 A.3d
990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
‘‘Although we neither encourage nor condone the use
of sarcasm, we also recognize that not every use of
rhetorical language or device is improper. . . . The
occasional use of rhetorical devices is simply fair argu-
ment.’’ (Internal quotation marks omitted.) Id., 642.
‘‘[S]ome use of sarcastic and informal language, when
intended to forcefully criticize a defense theory on the
permissible bases of the evidence and the common
sense of the jury, is not necessarily improper.’’ State v.
James, 141 Conn. App. 124, 150, 60 A.3d 1011, cert.
denied, 308 Conn. 932, 64 A.3d 331 (2013). Further, it
is important to note that ‘‘defense counsel’s failure to
object to allegedly sarcastic and denigrating comments
and questions by the prosecutor during cross-examina-
tion, as in the present case, suggests that counsel did
not believe the alleged improprieties were unfair in light
of the record at that time.’’ State v. Andrews, supra,
313 Conn. 283–84.
It is equally well established that ‘‘[a] prosecutor may
not express his own opinion, directly or indirectly, as
to the credibility of the witnesses. . . . Nor should a
prosecutor express his opinion, directly or indirectly,
as to the guilt of the defendant. . . . Such expressions
of personal opinion are a form of unsworn and
unchecked testimony, and are particularly difficult for
the jury to ignore because of the prosecutor’s special
position. . . . Moreover, because the jury is aware that
the prosecutor has prepared and presented the case
and consequently, may have access to matters not in
evidence . . . it is likely to infer that such matters pre-
cipitated the personal opinions. . . . It is not, however,
improper for the prosecutor to comment upon the evi-
dence presented at trial and to argue the inferences
that the jurors might draw therefrom . . . .’’ (Internal
quotation marks omitted.) State v. Donald H. G., 148
Conn. App. 398, 423, 84 A.3d 1216, cert. denied, 311
Conn. 951, A.3d (2014).
With respect to the defendant’s cross-examination,
defense counsel has directed our attention to several
instances of alleged sarcasm, including the prosecutor’s
stating, ‘‘really?’’ in response to an answer given by the
defendant and repeating the defendant’s answer back
in a sarcastic tone. Having reviewed the transcript of
the cross-examination and considering the prosecutor’s
language in context, we are unconvinced that any of
the questions or remarks identified by the defendant
as sarcastic or aggressive were improper.
Our Supreme Court recently rejected a claim that a
prosecutor’s remark of ‘‘[c]ome on’’ in response to an
answer given by a defendant on cross-examination was
inappropriate because the remark was an ‘‘attempt to
ensure that the defendant was being truthful . . . .’’
State v. Andrews, supra, 313 Conn. 292. We view the
prosecutor’s use of ‘‘really?’’ in the present case and
his repeating back answers given by the defendant in
the same light, namely, as an attempt to confirm the
truth or to clarify the defendant’s responses to his ques-
tions. See also State v. Kendall, supra, 123 Conn. App.
639 (repetitions of defendant’s answers by prosecutor
did not necessarily demonstrate impermissible sarcasm
rather than effort to confirm or clarify defendant’s
responses). Further, it was entirely appropriate for the
state to forcefully cross-examine the defendant to test
the veracity of his alibi defense give that ‘‘cross-exami-
nation is the principal means by which the credibility
of witnesses and the truth of their testimony is tested.’’
State v. Lee, 229 Conn. 60, 69–70, 640 A.2d 553 (1994).
In sum, our review reveals no instances of prosecutorial
impropriety during the defendant’s cross-examination.
The defendant also directs our attention to the follow-
ing examples of what he describes as the prosecutor’s
continued use of sarcasm during closing and rebuttal
arguments: (1) the prosecutor described as ‘‘cockama-
mie’’ the exchange that occurred between the defendant
and the victim prior to the shooting about whether the
victim had change; (2) after asking the jury to compare
the reliability of the defendant’s testimony with that of
the victim, the prosecutor stated, ‘‘[p]athetic’’; (3) the
prosecutor stated that the defendant was ‘‘being voted
father of the year because he spends every waking hour
with his child’’; (4) after pointing out inconsistencies
in the testimony of the defendant and his alibi witness,
the prosecutor stated, ‘‘They can’t even get their stories
straight, all right?’’; (5) the prosecutor stated that it was
‘‘ridiculous’’ that the defendant’s investigator wanted
the jury to believe that the lighting was poor at night
in the area where the shooting occurred, but the investi-
gator had visited the area only during the middle of the
day; and (6) the prosecutor asked rhetorically, ‘‘Is [the
defendant’s] alibi any bit believable,’’ before discussing
details of the alibi defense.
As we have often repeated, ‘‘[i]n determining whether
[prosecutorial impropriety] has occurred [in the course
of closing arguments], the reviewing court must give
due deference to the fact that [c]ounsel must be allowed
a generous latitude in argument, as the limits of legiti-
mate argument and fair comment cannot be determined
precisely by rule and line, and something must be
allowed for the zeal of counsel in the heat of argument.
. . . Thus, as the state’s advocate, a prosecutor may
argue the state’s case forcefully, [provided the argument
is] fair and based upon the facts in evidence and the
reasonable inferences to be drawn therefrom. . . .
Moreover, [i]t does not follow . . . that every use of
rhetorical language or device [by the prosecutor] is
improper. . . . The occasional use of rhetorical
devices is simply fair argument. . . . Nevertheless, the
prosecutor has a heightened duty to avoid argument
that strays from the evidence or diverts the jury’s atten-
tion from the facts of the case.’’ (Internal quotation
marks omitted.) State v. Daniel G., 147 Conn. App. 523,
555, 84 A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d
579 (2014).
We already have stated that limited use of sarcasm
by a prosecutor, although not condoned, does not rise
to the level of prosecutorial impropriety. Further, it
is important to draw a distinction between sarcastic
comments intended to disparage the defendant or
defense counsel and ‘‘argument that disparages a theory
of defense.’’ State v. Orellana, 89 Conn. App. 71, 101,
872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202(2005). Most of the defendant’s examples of alleged
impropriety during closing argument fall within this
latter category, and, although at times the comments
or statements were inartful, we cannot conclude that
they amounted to impropriety. For example, in begin-
ning his discussion of the defendant’s alibi defense by
questioning rhetorically whether the defendant’s alibi
defense was ‘‘any bit believable,’’ the prosecutor was
not stating his opinion, but asking the jury to question
whether the evidence supporting the alibi defense was
credible. The prosecutor’s remark that the defendant
and his alibi witness couldn’t get their stories straight
was preceeded by a recitation of the evidentiary basis
for that statement. The defendant had testified that he
was at home at the time of the shooting and that he
had been driven there by the alibi witness, whereas
the alibi witness testified that her son had driven the
defendant home. Thus, rather than being an expression
of the prosecutor’s opinion, the prosecutor was asking
the jury to draw a reasonable inference that the alibi
defense was untrue from the factual inconsistencies in
the testimony of the defendant and the alibi witness.
We view the remainder of the alleged improprieties
as rhetorical language that neither strayed from the
evidence nor diverted the jury’s attention from the facts
at issue.
B
We next consider the defendant’s argument that the
prosecutor violated our Supreme Court’s holding in
State v. Malave, supra, 250 Conn. 722, because he com-
mented at closing argument that the defendant had
failed to call his mother as a witness to corroborate
his alibi defense without having given prior notice to
defense counsel or to the court of his intent to make
such a remark. The state concedes that the prosecutor
failed to adhere to the notice requirement set forth in
Malave, but maintains that the defendant ‘‘did not object
below, fails to show harm from lack of notice, and does
not claim or show that the missing witness argument
itself, beyond the lack of notice, was improper.’’ We
agree that the prosecutor acted improperly by arguing
to the jury, without first providing the required notice,
that the defendant had failed to call his mother as a
corroborating witness but, ultimately, conclude that the
impropriety did not deprive the defendant of a fair trial.
In Malave, our Supreme Court ‘‘abandoned the rule
enunciated in Secondino v. New Haven Gas Co., 147
Conn. 672, 165 A.2d 598 (1960), which had permitted
trial courts to instruct the jury that [t]he failure of a
party to produce a witness who is within his power to
produce and who would naturally have been produced
by him, permits the inference that the evidence of the
witness would be unfavorable to the party’s cause. . . .
Although the [c]ourt in Malave abandoned the Sec-
ondino rule, it did not prohibit counsel from making
appropriate comment, in closing arguments, about the
absence of a particular witness, insofar as that witness’
absence may reflect on the weakness of the opposing
party’s case. . . . The court did, however, prohibit
counsel from directly urging the jury to draw an adverse
inference by virtue of the witness’ absence. . . . Addi-
tionally, the court stated that [f]airness, however, dic-
tates that a party who intends to comment on the
opposing party’s failure to call a certain witness must
so notify the court and the opposing party in advance
of closing arguments. Advance notice of such comment
is necessary because comment on the opposing party’s
failure to call a particular witness would be improper
if that witness were unavailable due to death, disappear-
ance or otherwise. That notice will ensure that an
opposing party is afforded a fair opportunity to chal-
lenge the propriety of the missing witness comment in
light of the particular circumstances and factual record
of the case.’’ (Citations omitted; internal quotation
marks omitted.) State v. DeCarlo, 92 Conn. App. 565,
570–71, 887 A.2d 378 (2005).
In the present case, the defendant’s alibi defense
rested in part on his testimony that he had returned
home on the night of the shooting before 11 p.m., and
that the reason he knew that it was before 11 p.m. was
because his mother, with whom he lived, worked the
third shift and she was just getting ready to go to work
when he arrived home. During the state’s rebuttal clos-
ing argument, the prosecutor made the following state-
ment with respect to the defendant’s alibi defense: ‘‘Is
[the defendant]’s alibi any bit believable? Now, he’s
dropped off at his house on Orange Street. Did the
mother come in and testify? Did she tell you—because
we have all indications that her car was in the parking
lot or the driveway that she would have greeted him,
did she come in to say, oh, he came home at eleven
o’clock? You didn’t hear her testify.’’
Although Malave expressly permits the state to draw
a jury’s attention to the absence of a corroborating alibi
witness, as it did here, and to suggest that the defendant
failed to present sufficient credible evidence in support
of an alibi defense; State v. Malave, supra, 250 Conn.
739; it also requires that, if the state wants to do so, it
must notify both the court and opposing counsel ‘‘in
advance of closing arguments.’’ Id., 740. There is nothing
in the record indicating that such notice was given in
the present case. The prosecutor’s argument, therefore,
was improper. See State v. Orellana, supra, 89 Conn.
App. 109 (prosecutorial impropriety not to comply with
Malave notice requirement).
Having determined that the prosecutor made an
improper missing witness statement during closing
argument, we turn to whether that impropriety deprived
the defendant of a fair trial. ‘‘[O]ur determination of
whether any improper conduct by the state’s attorney
violated the defendant’s fair trial rights is predicated
on the factors set forth in State v. Williams, [204 Conn.
523, 540, 529 A.2d 653 (1987)], with due consideration
of whether that [impropriety] was objected to at trial.
. . . These factors include the extent to which the
[impropriety] was invited by defense conduct or argu-
ment . . . the severity of the [impropriety] . . . the
frequency of the [impropriety] . . . the centrality of
the [impropriety] to the critical issues in the case . . .
the strength of the curative measures adopted . . . and
the strength of the state’s case. . . . [If] a defendant
raises on appeal a claim that improper remarks by the
prosecutor deprived the defendant of his constitutional
right to a fair trial, the burden is on the defendant to
show, not only that the remarks were improper, but
also that, considered in light of the whole trial, the
improprieties were so egregious that they amounted
to a denial of due process.’’ (Internal quotation marks
omitted.) State v. Ross, supra, 151 Conn. App. 700–701.
Here, the defense did not invite the Malave violation,
no curative measures were taken by the court, and the
impropriety was central to a critical issue, namely, the
defendant’s alibi defense. Those factors weigh in favor
of the defendant. The balance of the factors, however,
favors the state. The impropriety was an isolated occur-
rence and was not particularly severe. The lack of sever-
ity is evidenced by the fact that the defendant did not
object to the missing witness argument at the time it
was made or prior to the court’s jury charge. Although
failure to object to improper argument does not pre-
clude a later claim of prosecutorial impropriety, defense
counsel’s failure to make a contemporaneous objection
certainly permits an inference that counsel did not think
the impropriety was severe, and that it is in part the
responsibility of counsel that the impropriety went
uncured. See State v. Medrano, 308 Conn. 604, 621, 65
A.3d 503 (2013). In concluding that the impropriety was
not severe, we note that, although the prosecutor failed
to give proper notice of his missing witness argument,
the argument itself otherwise would have been permis-
sible under Malave because the prosecutor did not urge
the jury to infer that the defendant’s mother’s testimony
would have harmed the defendant’s case.13
Finally, the state’s case against the defendant was
strong. Although the defendant seeks to characterize
the jury’s verdict as resting solely on the basis of a
single eyewitness, that characterization fails to account
for other important evidence of the defendant’s guilt.
For example, Douglas testified that the defendant was
at Mary Shepard Place shortly before the victim was
shot, and that the defendant and Newkirk were making
specific plans to rob a delivery driver. Douglas also
testified that the defendant had a revolver that he was
carrying in the pocket of his hooded sweatshirt. That
evidence strongly corroborates the victim’s own
account of the attempted robbery and assault that
occurred, as well as her eyewitness identification of
the defendant as her assailant. In light of our consider-
ation of all relevant factors, we conclude that the single
impropriety by the prosecutor did not deprive the defen-
dant of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also asserts that the court improperly denied the motion
to suppress because, taking into account the totality of the circumstances,
the victim’s identification lacked reliability. Because we determine that
the identification procedures utilized by the police were not unnecessarily
suggestive, it is unnecessary for us to address that aspect of his claim. See
State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987) (‘‘[i]f the
procedures used to identify the defendant were not unnecessarily suggestive,
we need not independently analyze whether the identification was reliable’’).
Additionally, because we do not reach the reliability prong, we do not
address the defendant’s arguments advocating for changes to our federal
and state constitutional jurisprudence with respect to that prong. See State
v. Revels, 313 Conn. 762, 769 n.5, 99 A.3d 1130 (2014); see also State v.
Ledbetter, 275 Conn. 534, 559–69, 881 A.2d 290 (2005) (previously rejecting
requested changes), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.
2d 537 (2006).
2
The defendant never filed a motion to suppress Douglas’ pretrial identifi-
cation.
3
The photographic array also contained the following notice: ‘‘You have
been asked to look at this group of photographs. The fact that they are
shown to you should not influence your judgment. You should not conclude
or guess that the photographs contain the person who committed the offense
under investigation. You are not obligated to identify anyone. It is just as
important to free innocent persons from suspicion as to identify guilty
parties. Please do not discuss this case with other witnesses nor indicate
in any way that you have, or have not identified someone.’’
4
‘‘A double-blind photographic identification procedure is one in which
the officer conducting [the procedure] has not been involved in the investiga-
tion and does not know who the target is.’’ (Internal quotation marks omit-
ted.) State v. Nieves, 106 Conn. App. 40, 46 n.6, 941 A.2d 358, cert. denied,
286 Conn. 922, 949 A.2d 482 (2008).
5
‘‘A sequential photographic identification procedure involve[s] showing
the witness the suspect and other fillers on the identification procedure one
at a time, rather than the traditional practice of simultaneous presentation.’’
(Internal quotation marks omitted.) State v. Nieves, 106 Conn. App. 40, 47
n.6, 941 A.2d 358, cert. denied, 286 Conn. 922, 949 A.2d 482 (2008).
6
A party may functionally preserve a claim for appeal if, although not
explicitly raised to the trial court, it is clear from the record that the sub-
stance of the claim was raised. See Fadner v. Commissioner of Revenue
Services, 281 Conn. 719, 729 n.12, 917 A.2d 540 (2007).
7
The defendant also states in his brief that he seeks review under the
plain error doctrine. Plain error review ‘‘is reserved for truly extraordinary
situations where the existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the judicial proceedings.’’
(Internal quotation marks omitted.) State v. Domian, 235 Conn. 679, 692,
668 A.2d 1333 (1996). The defendant failed to provide any analysis in his
main brief as to why plain error review is necessary and appropriate under
the facts of this case and, therefore, we deem this request abandoned on
the basis of inadequate briefing.
8
In reviewing the propriety of a pretrial decision on a motion to suppress
evidence, this court properly may consider relevant testimonial evidence
later adduced at trial. See State v. Boscarino, 204 Conn. 714, 745 n.14, 529
A.2d 1260 (1987).
9
During the prosecutor’s redirect examination of the victim, the following
colloquy occurred:
‘‘Q. When you looked at [the array containing the defendant’s photograph]
and picked out number six, did you pick out number six because he was
wearing a hoodie?
‘‘A. No, sir.
‘‘Q. Now, when you described both of the people that night, can you
describe what clothes both of them had on?
‘‘A. They both had black hoodies and jeans on.
‘‘Q. And when you identified number four in [the array containing Newk-
irk’s photograph], is number four wearing a hoodie?
‘‘A. No.
‘‘Q. Are there other individuals in that photo array—people wearing
hoodies?
‘‘A. Yes.
‘‘Q. You didn’t pick that person out because he was wearing a hoodie?
‘‘A. No.
‘‘Q. Why did you identify these two people [in the photographic arrays].
‘‘A. I seen their faces clearly.’’
10
The defendant also briefly makes reference to the legislature’s enact-
ment of General Statutes § 54-1p. Section 54-1p, which was adopted after
the identifications at issue in the present case, requires municipal police
departments to adopt procedures requiring sequential and double blind
photographic lineups, as well as an instruction prior to the administration
of a photographic lineup that the perpetrator may not be among the persons
in the array. This court has made clear that it views the procedures in § 54-
1p as reflecting ‘‘best practices’’ that are not constitutionally mandated. See
State v. Johnson, supra, 149 Conn. App. 827 n.9 (rejecting ‘‘defendant’s
contention that the enactment of § 54-1p elevated the best practice procedure
of a double-blind array to the level of a constitutional requirement’’). It is
noteworthy that the statute does not include any remedy for noncompliance,
such as imposing a presumption of suggestiveness if the recommended
procedures are not followed.
11
The following exchange occurred between the prosecutor and the
defendant:
‘‘Q. And you’re saying you didn’t commit any shooting that night?
‘‘A. Yes.
‘‘Q. You’re saying you didn’t have a gun that night?
‘‘A. No.
‘‘Q. Isn’t it true that this just didn’t go right, this incident?
‘‘A. Isn’t it true—
‘‘Q. Yes.
‘‘A. —that it didn’t go right?
‘‘Q. Yeah, it just didn’t go right?
‘‘A. What do you mean, it didn’t go right?
‘‘Q. When you shot and hit that pizza delivery lady?
‘‘A. I didn’t shoot anybody.
‘‘Q. You didn’t?
‘‘A. No.
‘‘Q. And you didn’t have a gun that night?
‘‘A. No, I didn’t.
‘‘Q. Have you ever had a gun before?
‘‘A. Nope.
‘‘Q. You never have?
‘‘A. No.
‘‘Q. Do you remember the robbery at Franklin Package store?’’
12
The state contends that the defendant’s claims of prosecutorial impropri-
ety are inadequately briefed. We disagree.
13
Further, the defendant does not claim on appeal that if the state had
given the prior notice, he would have proven that she was unavailable
to testify.