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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 commitrobbery 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 improperly 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 disagree 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 restaurants 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 person 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.’’ Simultaneously, the defendant attempted to open the front passenger door but was unable to do so.

After seeing the defendant holding the revolver, the

victim started to drive away, at which time the defendant 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 shooting. 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 priorto the shooting, which eventually

led them to speak with Douglas. Douglas provided the

police with details about his interactions with the defendant 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 Newkirk 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 conspiracy 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 concerning the administration of photographic arrays were not

followed and that aspects of the photographs used in

the array rendered the array itself unnecessarily suggestive. In response, the state contends that the defendant

failed to raise to the trial court seven of the eight purported 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 unnecessarily suggestive. Ultimately, we conclude that the defendant 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 defendant 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 present 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 defendant’s photograph, the defendant was the only person

that appeared to be wearing a hooded sweatshirt. Otherwise, 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 instruction 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 investigate 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 identified the defendant as her shooter.

Priorto 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 identification 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 arguments regarding the suggestiveness of the array itself

or the procedures utilized by the police in obtaining

the identification. The defendant did raise several additional 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, noting 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 memorandum 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 evidence of any discrepancy between [the victim]’s

description and the defendant’s actual appearance at

the time of the observations. Finally, [the victim] identified 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 identification 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 suggestive; and second, if it is found to have been so, it must be

determined whetherthe identification was nevertheless

reliable based on examination of the totality of the

circumstances. . . . We emphasized in [State v. Outing, 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 critical question . . . is what makes a particular identification 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 particularidentification is tainted by unnecessary suggestiveness. The individual 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 reliability 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 subordinate 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 procedures 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. Additionally, 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 subjects 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 concerns 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 photographs were presented to the victim simultaneously

rather than sequentially.5 The state argues that the additional theories that the defendant raises for the first

time on appeal are unpreserved and, thus, unreviewable. 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 quotation 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 distinguishable from Santana with respect to the issue of

preservation. Ageneral assertion thatidentification procedures were unnecessarily suggestive and that any

resulting identification should be excluded from evidence 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 arguments. We accordingly agree with the state that the

defendant’s arguments with respect to the suggestiveness of the identification procedures largely are

unpreserved.

The defendant requests that to the extent we determine 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 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 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 omitted; 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 ‘‘present a record that is [adequate] for review and affirmatively [demonstrate] that his claim is indeed a violation

of a fundamental constitutional right.’’ (Internal quotation 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 procedures implicates the reliability of the identification and,

thus, his constitutional right to due process. See State

v. Marquez, 291Conn. 122, 137, 967A.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, factbased inquiry; see id., 156 n.33; the current record,

which includes both the photographic array and testimony from the victim and Detective Pia regarding the

procedures followed,8is sufficient for us to review the

defendant’s suggestiveness argument in its entirety to

determine whether the defendant has clearly established 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 determined 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 common 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 prominent feature of the victim’s identification of her assailant, 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 contrary.9 Additionally, there was nothing unusual or distinctive 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 suggestive.

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 defendant’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 photographs. Accordingly, any significant differences in

height and body type are notreadily 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 argument 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 identification.

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 provided 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 investigation.’’

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 rendered the procedure actually used unnecessarily suggestive. 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), thatreliance 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 qualified expert testimony concerning the fallibility of eyewitness 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 administered by an officer who knows the identity of the suspect, the procedure is unnecessarily suggestive as a

matter of law. In ruling that experts in appropriate circumstances should be allowed to testify about issues

that may affect the accuracy of identifications, the court

was not concerned with the admissibility of identification evidence, butrather 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 anything 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 defendant has failed to meet his burden under the third prong

of Golding of establishing a clear constitutional violation.

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 defendant’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 questions, the defendant answered, ‘‘No.’’

During cross-examination, the prosecutor revisited

those responses. The prosecutor then asked the defendant 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 defendant 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 notinvolved 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 defendant’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 approximately 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 ofthe 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 attendantfor $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 prosecutor 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 misconduct by the defendant were ever admitted into evidence.

As we repeatedly have recognized, ‘‘a question from

counsel is not evidence of anything.’’ Zollo v. Commissioner 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 conviction was improperly elicited evidence because ‘‘questions 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 evidentiary facts. Throughout his questioning by the prosecutor 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 supported 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 evidence. 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 identity. 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 personal belief as to the credibility of the defendant. Second, 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 defendant 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 contributed 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 omitted; 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 concedes that he did not object at trial to any of the comments 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 underthe 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 failure 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 significantrole in the determination of whetherthe challenged

statements were, in fact, improper. . . . To the contrary, 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, during 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 recognized 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 argument.’’ (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-examination, as in the present case, suggests that counsel did

not believe the alleged improprieties were unfairin 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 precipitated the personal opinions. . . . It is not, however,

improper for the prosecutor to comment upon the evidence 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 questions. 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-examination 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, ourreview reveals no instances of prosecutorial

impropriety during the defendant’s cross-examination.

The defendant also directs our attention to the following examples of what he describes as the prosecutor’s
continued use of sarcasm during closing and rebuttal

arguments: (1) the prosecutor described as ‘‘cockamamie’’ 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 investigator 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 legitimate argument and fair comment cannot be determined

precisely by rule and line, and something must be

allowed for the zeal of counsel in the heat of argument.

. . . 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 attention 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 beginning 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 commented 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 thatthe 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 Secondino 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, dictates 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, disappearance or otherwise. That notice will ensure that an

opposing party is afforded a fair opportunity to challenge 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 closing argument, the prosecutor made the following statement 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 whetherthat 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 occurrence and was not particularly severe. The lack of severity 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 preclude 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 permissible 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 consideration of all relevant factors, we conclude that the single

impropriety by the prosecutor did not deprive the defendant 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 identification.

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 investigation and does not know who the target is.’’ (Internal quotation marks omitted.) 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 substance 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 Newkirk’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 enactment 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 thatthe 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 impropriety 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.