Id. Of particular relevance here is the Connecticut Supreme Court's decision in State v. Zarick, 227 Conn. 207, 630 A.2d 565 (1993), cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993), in which the court was faced with a First Amendment challenge to a § 53-21 prosecution based on the making of photographs which depicted, inter alia, breasts and genitalia of children, as well as naked boys and girls in sexually explicit positions and poses. In the Connecticut Supreme Court's view, "[s]uch material is not protected by the [F]irst [A]mendment", as it "memorialized situations created by the defendant that were likely to impair the health or morals of children."
An array of decisions from this court and the Appellate Court provide ample notice that nude photographs akin to those recovered from G's cell phone are well within the ambit of the statute. See, e.g., State v. Sorabella , supra, 277 Conn. at 186–87, 891 A.2d 897 (reiterating that "nude performance" includes "the showing of the female breast with less than a fully opaque covering" in case involving photographs of thirteen year old girl, who was naked from waist up (internal quotation marks omitted)); State v. Ehlers , supra, 252 Conn. at 581, 750 A.2d 1079 (numerous photographs of nude, young children, some depicting children performing sex acts); State v. Zarick , 227 Conn. 207, 213, 630 A.2d 565 (photographs depicted breasts and genitalia of children, naked children in sexually explicit positions, and "costumed children wearing heavy makeup in sexually suggestive poses"), cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993) ; State v. Ernesto P. , supra, 135 Conn. App. at 218–19, 41 A.3d 1115 (it was undisputed that photographs of victim contained exhibitions of genitals, pubic area, buttocks, and breasts when defendant took photographs of naked victim exposing such areas); State v. Parsons , 28 Conn. App. 91, 95, 612 A.2d 73 (photographic contact sheet contained numerous photographs, taken by defendant, of victim clothed only in T-shirt, focusing primarily on victim's buttocks), cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). These decisions make clear that directing a child to pose fully or partially nude for photographs in an objectively sexual manner is an exhibition or a showing within the meaning of the term "nude performance" and, therefore, violate
Thus, we consider only his sixth amendment claim under the federal constitution. State v. Zarick, 227 Conn. 207, 226 n. 18, 630 A.2d 565 (1993); State v. Santiago, 224 Conn. 325, 328 n. 4, 618 A.2d 32 (1992). The facts relevant to this claim are as follows.
Because the defendant failed to provide an adequate basis for an independent analysis of the applicable state constitutional protections, we limit our review to the federal constitutional claim. State v. Zarick, 227 Conn. 207, 226 n. 18, 630 A.2d 565, cert. denied, 510 U.S. 1025 114 S.Ct. 637, 126 L.Ed.2d 595 (1993); State v. Santiago, 224 Conn. 325, 328 n. 4, 618 A.2d 32 (1992); State v. Joly, 219 Conn. 234, 258 n. 16, 593 A.2d 96 (1991); State v. Jones, 35 Conn. App. 839, 843 n. 5, 647 A.2d 43 (1994). In its preliminary remarks, the trial court gave a brief overview of the component parts of the trial, instructed the potential jurors to keep an open mind throughout the trial and attempted to quell any fears they might have about being adequate for the task.
The defendant also claimed that he was not provided with proper notice of the charges against him pursuant to article first, § 8, of the Connecticut constitution. Because the defendant failed to brief or to analyze independently the applicable state constitutional protections, we limit our review to the federal constitutional claim. State v. Zarick, 227 Conn. 207, 226 n. 18, 630 A.2d 565, cert. denied, ___ U.S. ___ 114 S.Ct. 637, 126 L.Ed.2d 595 (1993); State v. Santiago, 224 Conn. 325, 328 n. 4, 618 A.2d 32 (1992); State v. Joly, 219 Conn. 234, 258 n. 16, 593 A.2d 96 (1991). "When examining a claim of insufficient notice of a lesser included offense, we are limited to an examination of the charging documents, and do not examine the evidence presented at trial.
" State v. Vincent, 229 Conn. 164, 168 (1994);State v. Marsala, supra, 7. The court "may consider only the information that was actually before the issuing judge at the time he or she signs the warrant, and the reasonable inferences to be drawn therefrom." State v. Ives, 37 Conn. App. 40, 44-45 (1995), quotingState v. Duntz, 223 Conn. 207, 216 (1992); State v. Zarick, 227 Conn. 207, 222 (1993). In conducting our review, "We view the information in the affidavit in the light most favorable to upholding the magistrate's determination of probable cause. . . .
We begin our analysis with the general rule that “[a]n appellant who fails to brief a claim abandons it....” (Citations omitted; emphasis added.) State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993). As the Third Circuit Court of Appeals has explained, “[a]dherence to the rule that a party waives a contention that could have been but was not raised on [a] prior appeal ... is, of course, necessary to the orderly conduct of litigation.
We begin our analysis with the general rule that ''[a]n appellant who fails to brief a claim abandons it . . . .'' (Citations omitted; emphasis added.) State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). As the Third Circuit Court of Appeals has explained, "[a]dherence to the rule that a party waives a contention that could have been but was not raised on [a] prior appeal ... is, of course, necessary to the orderly conduct of litigation.
The state did not indicate that it wanted to question the defendant regarding the allegations in his affidavit, that it hoped to call Judge Wollenberg to testify or even that it would seek the opportunity to call him to testify should the need arise. See State v. Zarick, 227 Conn. 207, 217, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993) (defendant's evidence regarding claim of judicial misconduct did not justify "extraordinary remedy" of calling judge as witness); Gold v. Warden, 222 Conn. 312, 320, 610 A.2d 1153 (1992) (judge may be called to testify upon showing of "compelling need"). On March 21, 2003, the day of the suppression hearing, when the defendant submitted his forty-one paragraph affidavit describing his relationship with Judge Wollenberg, the state did not challenge the trial court's decision to accept the truth of the allegations contained therein.
"Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal." State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993). The trial court in the present case credited the testimony of DeMatteis that the defendant spoke English and that he was not under the influence of alcohol or drugs.