text:
    ROBIN MAGOWAN v. CAROL MAGOWAN
    (AC 22783)
    Mihalakos, Flynn and Hennessy, Js.
    Submitted on briefs September 16-
    officiaIly released November 26, 2002

      Julia B. Morris and James T. Flaherty filed a brief for the appellant (plaintiff).

      Carlo Forzani filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Robin Magowan, appeals from the trial court’s judgment denying his motion to open the judgment that dissolved his marriage to the defendant, Carol Magowan, and incorporated the property settlement agreement at issue. The plaintiff claims that the court improperly denied his motion to open, which was filed more than four months after the rendering of the dissolution judgment, because there was a mutual mistake of fact by both parties concerning the settlement agreement. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the plaintiffs appeal. The parties’ marriage was dissolved on April 20, 1999. The dissolution judgment as to division of property was based on a settlement agreement that the parties provided to the court. The parties had met with an attorney who acted as a mediator in reaching the settlement agreement. The parties were advised by the mediator to consult with an attorney prior to signing the settlement agreement. The majority of the marital assets were the plaintiffs, and his assets included beneficial interests in two trusts established by his family. One of the trusts was set up in 1959 (1959 trust), and the plaintiff is entitled to income from it and to invade the principal. The second trust was set up in 1986 (1986 trust) and, although the plaintiff is the income beneficiary, he is not able to invade the principal in that trust.

The portion of the judgment incorporating the settlement agreement that is relevant to this appeal concerned the home shared by the parties prior to the dissolution of their marriage and another to be built for the plaintiff after the dissolution. That portion of the settlement agreement states: “[The defendant] will continue to reside as long as she chooses in the family home at 16 Taconic Road, Salisbury, Connecticut, which property is part of the trust assets provided for by [the plaintiffs] father in the trust set up for him in 1959. [The defendant] shall have the right to quiet enjoyment of said home, free from interference by [the plaintiff]. [The defendant] is building a home for [the plaintiff] on said property using funds from said trust. This will result in their having homes in close proximity to each other, on the same property, thus facilitating their shared physical custody of [their minor child]. Until June 1,1999 [the plaintiff] shall have the responsibility to pay the costs associated with the maintenance of all of said property, including [the defendant’s] housekeeper, the caretaker of the property and its gardeners. It is the parties’ intention that beginning June 1, 1999 the trustee of what the parties refer to as [the plaintiffs] ‘1986 trust’ shall pay the mortgage, taxes and insurance related to said property and shall place the remaining income from said trust in a joint bank account to be established by the parties out of which they shall pay for any capital improvements to the property or either party’s home thereon, maintenance of the property or either party’s home thereon equalling $2,000 or more and the cost of the property’s caretaker and the housekeeper either/both parties employ shall be paid out of said income. It is the parties’ intention that the property taxes on said property should be paid for by the trust.”

The plaintiff did, in fact, have funds from the 1986 trust authorized to pay for construction of a residence for himself on the property. Thus, that portion of the stipulated judgment providing that the defendant construct him a home on the land has been fulfilled. On October 24, 2001, the plaintiff filed a motion to open the judgment pursuant to General Statutes § 52-212a due to a mutual mistake of fact by both parties. One of the alleged mistakes in the settlement agreement about which the plaintiff appeals is that the property on which the family home is situated was, in fact, owned by the 1986 trust and not the 1959 trust, as incorrectly stated in the settlement agreement. Another “mistake” cited by the plaintiff is that the trustees of the 1986 trust will no longer “perform certain functions” that were anticipated when the settlement agreement was made a part of the stipulated judgment. According to the plaintiff, the trustees have decided that it is their fiduciary duty to discontinue paying the expenses of the property and want to sell all the real estate on which both the former marital home and the plaintiffs newly constructed home are located. As a result of a sale of the property, the defendant would not be allowed to live in the home, as stated in the settlement agreement and adjudged by the court in accordance with that stipulated agreement.

On January 9, 2002, the court held an evidentiary hearing regarding the motion to open the judgment. The testimony from the two parties at the hearing contained no material factual differences. On January 29, 2002, the court denied the motion and stated in its memorandum of decision: “From the testimony and evidence presented to this court, this court concludes that there was no mutual mistake in this matter. What the plaintiff is seeking to accomplish is to open the judgment to modify the property assignment due to a change in circumstances postjudgment.”

We begin our analysis by setting forth our standard of review. The parties entered a stipulated agreement in dissolving their marriage. “A stipulated judgment is not a judicial determination of any litigated right. . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. . . .

“It necessarily follows that if the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake. . . .

“In determining whether a stipulated judgment was, as is claimed here, the product of accident or mistake, we have observed: A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. ” (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 339-41, 572 A.2d 323 (1990).

A portion of the agreement that the plaintiff argues is based on a mistake contains the phrase “[i]t is the parties intention” that the trust pay certain expenses after June 1, 1999. The plaintiff did not condition his obligations under the agreement on the fulfillment of that intention, however. The plaintiff now claims that the trustees have stated that they will not fulfill those intentions. The court did not find that the trustees gave both parties any assurances prior to the dissolution judgment that they would act as the parties desire or that each mistakenly thought they had such assurances from the trustees when they entered the stipulation. The intentions of the contracting parties about what third party trustees would do have not been fulfilled, but the fact that a third party is not going to satisfy those intentions is not a mistake that can be a basis to open the judgment. At best, it is a poor prediction after the stipulation and judgment that a third party will honor the parties’ desire that the trustees pay certain expenses. Although the contract expresses intentions that the trust be bound to continue to pay expenses and hold title to the property, there is no mutual mistake because the plaintiff knew the terms of the 1986 trust. He also was aware that he did not have the right to demand invasion of the trust or demand performance from the trustees of the kind of retentions of the real estate and payment of expenses associated with its maintenance that the agreement contemplated. His intention, therefore, cannot arise out of a mutual mistake.

The only remaining portion of the agreement that deals with a term that is not couched by the phrase “it is the parties’ intention” is the provision that would allow the defendant to reside on the property for “as long as she chooses in the family home.” (Emphasis added.) The plaintiff states that the error in the agreement that the property was owned by the 1959 trust is significant because the plaintiff had some control over that trust and did not have control over the 1986 trust. However, both parties testified at the hearing on the motion to open the judgment that they knew at the time the agreement was reached that the 1986 trust owned the property. The plaintiff also was aware that he could not invade the principal without the approval of the trustees. The plaintiff also received funds from the trustees of the 1986 trust to build his residence on the property after requesting that the trustees invade the principal. “A mutual mistake is one that is common to both parties and effects a result that neither intended.” Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn. App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992), citing Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). The statement in the agreement concerning which trust actually owned the property, therefore, is a technical scrivener’s error and cannot be a mutual mistake on the part of the parties because they were aware at all times which trust actually owned the property.

The plaintiff also argues that the trustees consider that the defendant’s continued occupation of the property is a violation of their fiduciary duty and that they intend to sell the property. As a result of the sale of the property to a third party, the defendant would not be allowed to reside on the property. The plaintiff asserts that the parties were mutually mistaken in then-belief that the trustees would continue to allow the defendant to reside on the property. Again, the court made no finding that the trustees gave any assurances about which there was a mutual mistake concerning how long they would hold title.

The facts of this case are similar to those in Barnett v. Barnett, 26 Conn. App. 355, 600 A.2d 1055 (1992). In Barnett, the defendant argued that the trial court improperly denied a motion to open and to set aside an award of lump sum alimony based upon a mutual mistake as to the amount of equity in the marital home. Id., 355-56. The defendant had expected to be able to sell the marital home for more than was received at a foreclosure sale and, thus, to use those funds to pay the lump sum alimony. Id., 357-58. This court stated: “At best, the defendant’s position amounts to a claim that the judgment should be opened and set aside on the ground of impossibility of performance because he does not have the money to carry out the agreement. . . . The defendant has furnished us with no Connecticut authority, nor are we aware of any, that allows a party to avoid payment of a judgment on the basis of impossibility of performance due to lack of funds.” Id., 359.

The court in Barnett also held that the record did not support the defendant’s contention that he could not satisfy that portion of the agreement. Id. So, too, the plaintiff in this case has not argued that because of lack of funds to purchase the property from the 1986 trust, he cannot conform to the agreement to allow the defendant to remain in the marital home.* * As in Barnett, the impossibility of requiring performance by the trustees in the current case resulting from a circumstance that occurred after the judgment is not a basis for opening the judgment. See id.

In addition, the plaintiff showed that he was aware that he did not possess the authority to allow the defendant to remain on the property when he stated that he was aware at all times that the 1986 trust owned the property. Therefore, there can be no mutual mistake. The kind of mistake that would justify the opening of a stipulated judgment under § 52-212a must be mutual; a unilateral mistake will not be sufficient to open the judgment. Solomon v. Reiser, 22 Conn. App. 424, 427, 577 A.2d 1103 (1990); see also Acheson v. White, 195 Conn. 211, 215-16, 487 A.2d 197 (1985); Celanese Fiber v. Pic Yams, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981) (“ ‘[i]t is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened [after the four month limitation] ... if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or because of mutual mistake’ ”).

In addition, the court correctly noted that the court’s jurisdiction over property assignment under General Statutes § 46b-81 is limited. See Bender v. Bender, 258 Conn. 733, 761-62, 785 A.2d 197 (2001). Dispositions of property made at the time of the decree under § 46b-81 are not subject to modification, even if there should be a change of circumstances. See General Statutes § 46b-86 (a);* * see also Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976) (“[a]limony consisting of a specific portion of an estate or of a specific sum of money, however, is a final judgment which the court cannot modify even should there be a change of circumstances”).

The court ruled that the plaintiff was seeking to open the judgment due to a postjudgment change in circumstances, and it did not act unreasonably or abuse its discretion when it denied the plaintiffs motion to open the judgment.

The judgment is affirmed.

       The record indicates that the plaintiff did, in fact, consult an attorney before signing. The record is unclear whether the defendant consulted an attorney before or after signing.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. ...”
      According to our Supreme Court, “[i]t necessarily follows that if the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake.” (Internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990).

       According to testimony at the hearing on the motion to open the judgment, one of the trustees of the 1986 trust is the plaintiffs brother.

       That decision does not address whether the nonperformance of the terms of the stipulated judgment could give rise to another cause of action or a different motion. The decision is limited to the sole issue of what has been raised before us on appeal, namely, whether the court improperly denied the motion to open the judgment because there was a mutual mistake at the time the agreement was reached.

       We note that the plaintiff has considerable assets, and the agreement only states that the trust currently owns the property. The agreement does not state that the trust will or must continue to own the property in the future.

       The hearing transcript reveals in relevant part the following:
      “[Plaintiffs Counsel]: Is [the property] owned by a trust?
      “[Plaintiff]: Yes, it is.
      “[Plaintiffs Counsel]: And what trust owns [the property]?
      “[Plaintiff]: The 1986 trust. . . .
      “[Plaintiffs Counsel]: And what are your rights under the 1986 trust?
      “[Plaintiff]: The 1986 trust, I have only rights as income beneficiary. I cannot invade it for any reason whatsoever.
      * * *
      “[Plaintiffs Counsel]: . . . [W]hat’s your understanding of your rights under the 1986 trust?
      “ [Plaintiff]: I have only the right as income beneficiary to have what money happens to be there to be distributed as income to me.
      “[Plaintiffs Counsel]: Is it your understanding that you have the right to invade the trust, invade the corpus of the trust?
      “[Plaintiff]: I do not have the right to invade.
      * ** *
      “[Defendant’s Counsel]: Now, you knew, did you not, that the 1986 trust owned the property .... right?
      “[Plaintiff]: Yes.
      “[Defendant’s Counsel]: In fact, in 1991, during the marriage, you went to your brother, Merrill Magowan, and asked him to invade the principal, your terms, because you said you couldn’t invade it, but you went to him and you said I want to build a house on this property, right, or I want to buy the property?
      “[Plaintiff]: Yes.”

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court . . . .”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one parly to the other party under prior law. . . .”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    JEAN-YVES JEAN-JACQUES v. COMMISSIONER OF CORRECTION
    (AC 21882)
    Mihalakos, Dranginis and Hennessy, Js.

      Submitted on briefs September 25 —
    officially released November 26, 2002

      William A. Snider filed a brief for the appellant (petitioner).

      Kevin T. Kane, state’s attorney, and Michael L. Regan, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Jean-Yves Jean-Jacques, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus in which he claimed that he had been denied the effective assistance of counsel. On appeal, the petitioner claims that the court improperly concluded that the representation by the petitioner’s former attorneys did not fall below an objective standard of reasonableness because they (1) did not file a motion to strike the testimony of a key witness when she stated that she did not understand the meaning of the word “oath,” (2) failed to conduct a proper investigation and (3) did not establish what clothing the petitioner was wearing during the evening of the crimes at issue. We affirm the judgment of the habeas court.

This court stated that the jury reasonably could have found the following facts, as recited in the petitioner’s direct appeal from his conviction in State v. Jacques, 53 Conn. App. 507, 733 A.2d 242 (1999). “On the evening of February 4, 1996, Nadia Joseph and her boyfriend Fresnel Eugene were at the apartment of Joseph’s brother on Franklin Street in Norwich. Also present were the [petitioner] and a number of others, including two young Haitian males who had accompanied the [petitioner], one of whom was seen carrying what appeared to be a nine millimeter handgun. Sometime later that evening, Roland Conte, a friend of the [petitioner], approached Eugene and told him that the [petitioner] was going to Eugene and Joseph’s apartment to spread voodoo powder. Eugene and Joseph were acquainted with the practices of voodoo, having witnessed those practices in Haiti and Brooklyn, New York. Fearing that the defendant’s exercise of voodoo powers would kill them, Joseph and Eugene left the apartment sometime between 8 and 8:30 p.m. Shortly thereafter, the [petitioner] and his two Haitian friends also left the apartment.

“Joseph and Eugene went to a store to purchase the ingredients for an antidote to the voodoo powder and proceeded to their apartment located within an apartment complex at 495 Laurel Hill Road, Norwich. Upon arriving at their apartment, Eugene and Joseph observed the [petitioner] and his two Mends enter another apartment in the same building. The [petitioner] was wearing jeans and a hat. Joseph and Eugene entered their apartment, prepared the antidote and spread it outside their apartment. Thereafter, Joseph and Eugene left their apartment and proceeded toward their car. At that point, they were confronted by the [petitioner], and his two friends.

“The [petitioner] pulled out a gun and pointed it at Joseph and Eugene. As Eugene walked toward the [petitioner’s] two friends, the [petitioner] shot him in the back of his head and he collapsed. Joseph then fought with the [petitioner] who hit her face and chest with his gun. As Joseph fell, she heard one of the [petitioner’s] friends shout in Creole, ‘Shoot the girl so she won’t talk.’ Joseph then felt what she believed was a bullet strike her. The next thing she remembers is hearing sirens and being aware of the presence of the police. En route to a hospital, Joseph regained consciousness but spoke unintelligibly to the police. At the hospital, her treating physician asked her who had shot her and she eventually said ‘Jean-Yves,’ the [petitioner], who was her sister’s boyfriend.

“On February 5,1996, shortly after midnight, the Norwich police arrested the [petitioner] and transported him to the police station. After the police advised him of his Miranda rights, the [petitioner] made inculpatory statements to the police. Specifically, the [petitioner] indicated to the police that he was present when the homicide occurred, but was not involved with the commission of the crime. ... At the conclusion of the trial, the jury found the [petitioner] guilty on the charges of criminal attempt to commit murder and carrying a pistol without a permit.” Id., 509-11. Additional facts will be set forth as necessary.

The standard of review for a challenge to a court’s dismissal of a petition for a writ of habeas corpus based on alleged ineffective assistance of counsel is well established. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. ... In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court adopted a two part analysis for claims of ineffective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for defense counsel’s deficient representation, the result of the proceeding would have been different.” (Citations omitted.) Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002).

The petitioner first claims that his counsel’s performance fell below the standard of reasonableness when he failed to make a motion to strike the testimony of a key witness after she testified at trial that she did not understand the meaning of the word “oath.” We do not agree with the petitioner.

Joseph gave several inconsistent statements during the course of the criminal investigation, the probable cause hearing and the trial concerning the number of individuals who had a gun on the night she was shot and whether her sister was present during the shooting. After listening to Joseph’s testimony during trial, the court asked her, “Do you know what a statement under oath is?” Joseph responded, “No.” The court then asked if either counsel had anything to say in view of her response, and neither party objected. At the conclusion of the state’s case-in-chief, the petitioner’s counsel made a motion for a judgment of acquittal. The basis of the motion was that the state’s case relied on the testimony of Joseph and her acknowledgment that she did not understand the meaning of an “oath.” The court denied the motion.

At the habeas trial, the petitioner’s trial counsel, Bruce A. Sturman, testified that he thought it was “best to make a legal argument at the appropriate time that her testimony should be stricken, which I did on the motion for acquittal, but it was also my experience that the chances of getting the trial judge to exclude her testimony were slim and none .... And I thought I could make more hay out of it arguing to the jury that her testimony, when you factor in saying her sister was there, this guy had a gun, this guy didn’t, you know, her statements were all over the lot. Coupled with the fact that she didn’t know what an oath meant, that was where I could make some impact. So, I waited and I used that bit of evidence in final argument.”

At the habeas trial, the petitioner’s expert witness, Conrad Seifert, testified that Sturman should have made a motion to strike the testimony of Joseph. Seifert testified that making the motion in front of the jury would have “reinforced” her lack of understanding of an oath. Seifert also testified that making the motion at that time would have preserved the issue for direct appeal, but he added that the petitioner’s appeal did claim that the motion for a judgment of acquittal was denied improperly. On cross-examination, Seifert testified that it was likely that the motion to strike Joseph’s testimony would have been unsuccessful.

The habeas court concluded that the petition must fail because none of the claims, even if proven, would result in the likelihood of a different outcome, and the “petitioner’s own expert acknowledges a motion to strike Nadia Joseph’s testimony would have most likely been unsuccessful. This court will not engage in what conjectural impact the motion would have had psychologically to the jury. . . . Certainly, habeas petitions will not be determined based upon a petitioner’s hope that an idea is psychologically planted in juror’s minds to produce a different verdict.”

We agree that the petitioner has faded to demonstrate that the outcome of the trial would have been different if a motion to strike had been filed and further note that Joseph’s lack of understanding of the meaning of an oath was, in fact, presented to the jury. The motion to strike would have been cumulative in terms of presentation to the jury. “Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Therefore, [a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice.” (Internal quotation marks omitted.) Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 778-79, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002).

The petitioner also claims that his defense counsel were ineffective because they failed to conduct an adequate investigation. Specifically, the petitioner argues that his counsel never canvassed the crime scene, never contacted people living in the apartment complex where the shooting took place and did not use sufficient effort to locate the petitioner’s two Haitian friends who witnessed the shooting.

Sturman testified that he relied on the report filed by the Norwich police department and that he had full access to the state’s file. The investigator working with Sturman, Arthur Brautigan, did, in fact, interview several witnesses after the petitioner supplied names. Those witnesses either refused to discuss the shooting or provided information that was of little use to the petitioner. Brautigan testified that he also attempted to locate the two Haitian witnesses in the New York City area after the petitioner supplied a telephone number. That effort proved unsuccessful, and the petitioner did not provide any further assistance to either of his attorneys or to the investigator to locate the two witnesses who were present on the evening in question.

The petitioner further claims that he provided his attorneys with the name of the man who allegedly shot the victims. Both defense counsel and Brautigan deny that the petitioner provided that name. Sturman testified that the first time that he remembers hearing the name of the alleged perpetrator was when he received a copy of a letter written by the petitioner to the trial judge one year after the trial. Sturman also testified that he never canvassed the apartment complex where the shooting took place because he believed that there was enough information from the police reports and the state’s file. He believed that he could not develop more information from a continued investigation. Sturman also testified that it was his strategy not to have those witnesses know in advance the line of questions his cross-examination would pursue. He did not believe that those witnesses would have been able to exonerate his client and, therefore, he did not interview them further.

“Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” (Internal quotation marks omitted.) Tatum v. Commissioner of Correction, 66 Conn. App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001); see also Nieves v. Commissioner of Correction, 51 Conn. App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.” Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001). The petitioner has not met that burden, nor has he shown that a witness existed who was accessible to his attorneys who would have assisted in his defense at trial.

The petitioner’s final claim is that his counsel failed to properly investigate the clothing the petitioner was wearing on the night of the shooting and failed to adequately present the discrepancies of the witnesses’ descriptions of his clothing to the jury. Evidence was presented at the habeas trial that approximately three hours before the crime, a taxicab driver had given the petitioner a ride to the police station on a matter unrelated to this case. The driver testified that the petitioner was wearing a dark leather jacket and dark pants. When the petitioner was arrested, he was wearing a brown leather jacket. Some witnesses claimed that the perpetrator was wearing a baggy or puffy jacket.

Some of the witnesses also testified that one of the perpetrators was wearing a floppy hat or a winter hat. The petitioner claims never to have worn a hat. The habeas court noted that those inconsistencies may have been helpful to the petitioner’s defense, but “would not have solved one of the ultimate problems he faced in this matter. When the petitioner was arrested, he was wearing pants that had blood all over them that was consistent with high velocity blood splatter, which resulted from being very close to a gunshot wound as it was incurred. Therefore, whatever benefit would have been gained from placing the other clothing on the petitioner would not have been sufficient to overcome the ultimately inculpating evidence of the trousers that the petitioner was wearing.”

In addition, Sturman testified that the petitioner was arrested six hours after the shooting occurred and emphasized that the pants were the crucial piece of clothing. The petitioner also placed himself at the scene of the crime in the statement he gave to the police, which was admitted at trial. The habeas court concluded that the “petitioner has failed to prove that either counsel’s representation fell below an objective standard of reasonableness or that defense counsel’s performance prejudiced the defense.” After a thorough review of the record, we agree with the habeas court that the petitioner was not deprived of his right to effective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Two attorneys represented the petitioner during the time period this appeal concerns. Gail Heller represented the petitioner from his arraignment until approximately December, 1996. Bruce A. Sturman became the petitioner’s attorney of record at that time and represented the petitioner during his trial, which began March 17, 1997. The petitioner’s claim of ineffective investigation is against both attorneys.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Joseph’s testimony that the petitioner fired the shots that wounded her and killed Eugene remained consistent in all of her statements to authorities.

       The petitioner appealed to this court, challenging, inter alia, the denial of the motion for a judgment of acquittal. This court affirmed the judgment of the trial court in State v. Jacques, supra, 53 Conn. App. 507.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. STAFFORD BROWN
    (AC 21051)
    Foti, Schaller and West, Js.
    Argued September 23 —
    officially released November 26, 2002

      H. Owen Chace, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Stafford Brown, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The sole issue on appeal is whether the court was required, sua sponte, to give a jury instruction that included a fist of factors that the jury should consider with respect to eyewitness identification. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between midnight and 8 a.m. on August 22, 1998, Kadir Babiso, a thirty-eight year old man, was the sole attendant at a service station and convenience store at Park Avenue and State Street in Bridgeport, where he had been employed for fifteen years. At that time of night, the door to the store was locked, and Babiso dealt with customers through a glass window. At approximately 1:30 a.m., however, a woman came to purchase gasoline and cigarettes. After paying for a package of cigarettes with a $20 bill, she asked Babiso to help her pump gasoline into her vehicle because she was having difficulty with the pump. Babiso put the change in his hand and went outside to help the woman. The woman also asked Babiso for directions to Interstate 95. As he was giving directions to the woman, the defendant appeared, put a knife to Babiso’s chest and demanded the money he was holding.

Babiso gave the defendant the money and ran toward the building. A second man appeared and attempted to grab onto Babiso, who was able to get into the store. He locked the door and called the police. He watched the two men walk toward Seaside Park. A few minutes later, Anthony Davila, a Bridgeport police officer, arrived. Babiso told Davila about the defendant, and described him as wearing jeans and a black shirt and having a small gap between his upper teeth. Davila searched the area, but was unable to locate the defendant.

Three days later, on August 25, 1998, Babiso went to the post office on Middle Street. As he was walking home on Main Street in downtown Bridgeport, he saw the defendant and the second man in the company of a third man. Babiso found a police officer to whom he explained the situation. Joseph Szor, a Bridgeport police sergeant, was in the area when he heard a dispatch providing Babiso’s description of the defendant. Szor detained the defendant. Babiso was taken to the scene where he positively identified the defendant as the person who had robbed him.

The jury heard evidence on May 20, 1999. Babiso identified the defendant at trial and testified that prior to the robbery, he had seen the defendant in a liquor store on Main Street. Also at trial, the defendant admitted that he was at the service station on the night in question and witnessed an altercation between Babiso and a customer. The court charged the jury on May 21, 1999. The defendant did not submit a request to charge, and he did not object to the instruction given by the court. The jury returned its verdict that day. On July 7, 1999, the court sentenced the defendant to ten years in the custody of the commissioner of correction, suspended after five years served, and five years probation. The defendant appealed.

On appeal, the defendant argues, in general, that eyewitness identifications are fraught with dangers that undermine a defendant’s right to a fair trial. He argues specifically that Babiso’s eyewitness identification was unreliable because Babiso saw the robber for only a few seconds, he was nervous, and in his initial report to the police and on apprehension of the defendant, he failed to mention the woman whom he was assisting at the time he was robbed. The defendant also argues that Babiso’s identification of him was unreliable because Babiso was the only person to identify him as the perpetrator of the crime.

On the basis of those factual assertions, the defendant claims that the court should have provided a better instruction with respect to evaluating Babiso’s identification. In other words, the defendant asserts that the court should have delineated a list of factors for the jury to consider in assessing Babiso’s credibility. He contends that a jury instruction that fails to provide such guidance undermines a defendant’s rights to due process and to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.

Because he did not preserve his claim of an inadequate juiy instruction at trial, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. “We will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the trial court . . . (Internal quotation marks omitted.) State v. Edward B., 72 Conn. App. 282, 301, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002). We decline to review the defendant’s claim because it is not of constitutional magnitude or one of those truly extraordinary circumstances that warrants plain error review.

A defendant may prevail on an unpreserved claim of constitutional error if he meets all of the following conditions: “(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. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

The defendant has provided a copy of the transcript and, therefore, the record is adequate for our review. His claim, however, is not of constitutional magnitude. He acknowledges that in State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997), our Supreme Court held that just as every evidentiary claim is not of constitutional magnitude, not every claim of instructional error is of constitutional magnitude. Id., 151-52. “We have recognized, for example, that claimed instructional errors regarding the elements of an offense; see, e.g., State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992); and claimed instructional errors regarding the burden of proof or the presumption of innocence; see, e.g., State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993); are constitutional in nature, so as to satisfy the second Golding requirement. We have also recognized, however, that claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).” State v. Dash, supra, 152; see also State v. Anderson, 20 Conn. App. 271, 280-82, 566 A.2d 436 (1989), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990).

Even though our Supreme Court has decided that the jury instruction regarding the credibility of a witness is not of constitutional magnitude, the defendant asks us to reconsider the decision. Our Supreme Court is the ultimate arbiter of the law in this state. We, as an intermediate appellate court, cannot reconsider the decisions of our highest court. See Hanes v. Board of Education, 65 Conn. App. 224, 230 n.6, 783 A.2d 1 (2001).

Furthermore, the defendant’s claim does not merit plain error review. Pursuant to Practice Book § 60-5, “this court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” (Internal quotation marks omitted.) State v. Hair, 68 Conn. App. 695, 704-705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002). “[T]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . The doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., 705.

“[T]he test of a court’s charge is not whether it is accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 815-16, 750 A.2d 1037 (2000).

We have read the court’s instruction and conclude that it fairly presented the issues to the jury in a manner such that no injustice was done to either party. The instruction, as given, would not undermine the public’s confidence in our legal system, and it is not reasonably probable that the jury was misled. See Murray v. Taylor, 65 Conn. App. 300, 331, 782 A.2d 702 (standard regarding nonconstitutional questions), cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       The woman had fled the scene.

       At the close of the state’s case-in-chief, the court granted the defendant’s motion for a judgment of acquittal as to the state’s charge of larceny in the second degree. The state subsequently filed a substitute information charging only robbery in the first degree.

       The defendant has not presented a separate analysis of his state constitutional claims, and we therefore consider them abandoned. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).


author: PETERS, J.

text:
    MILLWARD BROWN, INC. v. COMMISSIONER OF REVENUE SERVICES
    (AC 22258)
    Mihalakos, Bishop and Peters, Js.

      Argued September 12 —
    officially released November 26, 2002

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Edward F. Reynolds, Jr., assistant attorney general, for the appellant (defendant).

      Ian E. Bjorkman, with whom were Kenneth D. Heath and, on the brief, Peter H. Gruen, for the appellee (plaintiff).
   Opinion

PETERS, J.

General Statutes § 12-214 requires multistate corporations that do business in Connecticut to pay a Connecticut corporate business tax. To determine the amount of a multistate corporation’s tax liability, the commissioner of revenue services apportions the corporation’s income to Connecticut in accordance with one of the formulae stated in General Statutes § 12-218. The one factor formula contained in § 12-218 (a) applies to a corporation’s income if that income is not “derived from . . . the manufacture, sale or use of tangible personal or real property . . . .’’By contrast, if a taxpayer’s income is so derived, the applicable formula is the three factor formula contained in § 12-218 (b). In this case, the commissioner of revenue services determined the corporation’s tax liability in accordance with subsection (a), while the trial court held that subsection (b) applied. We agree with the court and affirm its judgment in favor of the corporation.

The plaintiff, Millward Brown, Inc. (taxpayer), appealed to the trial court to contest the validity of a deficiency assessment* * resulting from the decision of the defendant commissioner of revenue services (commissioner) to use the one factor formula of § 12-218 (a) to measure its income for the tax periods between 1989 and 1991. The commissioner moved to dismiss the appeal as untimely under General Statutes § 12-237. After the court’s denial of that motion, the commissioner reiterated its reliance on § 12-218 (a). The court concluded that the applicable statute was § 12-218 (b) and rendered judgment accordingly. The commissioner has appealed.

The commissioner renews the arguments that he raised before the trial court. Because each argument raises a question of statutory construction, a question of law, our review is plenary. See, e.g., State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132, cert. denied, 537 U.S. 879, 123 S. Ct. 79, 154 L. Ed. 2d 134 (2002); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995); Kindl v. Dept. of Social Services, 69 Conn. App. 563, 566, 795 A.2d 622 (2002). Well established principles describe the scope of our plenary review. “[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998).

I

SUBJECT MATTER JURISDICTION

We consider first the merits of the commissioner’s motion to dismiss this case on the ground that the taxpayer waited too long to take an appeal to the Superior Court. The time to file a tax appeal is set by § 12-237. Because the right to take a tax appeal is entirely statutory, if the commissioner’s contention is correct, then the trial court lacked subject matter jurisdiction.* ** Cf., e.g., Tolly v. Dept. of Human Resources, 225 Conn. 13, 27, 621 A.2d 719 (1993).

The parties stipulated to the following facts. At some undetermined time prior to April 28, 1997, the commissioner denied the taxpayer’s request for reassessment of its tax liability under § 12-218. The commissioner notified the taxpayer of his decision in a letter sent by first class mail. The mailing occurred at some time prior to April 28, 1997. The taxpayer received the letter on April 28, 1997, and filed its tax appeal on May 28, 1997.

Under § 12-237, the commissioner was required to serve the taxpayer with notice of the denial of its reassessment claim. The statute did not define the manner in which the commissioner was obligated to make service. Once service had been made, the taxpayer had one month to appeal to the Superior Court.

In the commissioner’s view, the taxpayer’s appeal was untimely because it was not filed within one month of the date of service on the taxpayer. The commissioner maintains that he served notice on the taxpayer by mailing the notice by first class mail. The taxpayer argues, however, and the trial court held, that the appeal was timely because it had been filed within thirty days of the date of the taxpayer’s receipt of notice from the commissioner.

The commissioner takes issue with the holding of the trial court for three reasons. He argues that the undefined term “service” in § 12-237 should be construed to permit service to be made by first class mail because (1) the statute should be narrowly construed because it implicates the state’s sovereign immunity, (2) the absence of a definition of service authorizes the commissioner to use any manner of service that is authorized by other tax statutes, and (3) the legislature has enacted General Statutes § 12-2f to clarify that service of process under § 12-237 could properly be made by first class mail. We disagree with each of these arguments.

A

Unless expressly waived, sovereign immunity protects the state from liability for private litigation that may interfere with the functioning of state government and may impose fiscal burdens on the state. Pamela B. v. Ment,, 244 Conn. 296, 328, 709 A.2d 1089 (1998); Herzig v. Horrigan, 34 Conn. App. 816, 819, 644 A.2d 360 (1994). We agree with the taxpayer that this case does not infringe on the state’s sovereign immunity. The commissioner has cited no precedents that invoke sovereign immunity to the construction of a statute that expressly grants a taxpayer the right to appeal from the decision of a governmental agent. We know of none.

B

The commissioner is on stronger footing when he reminds us that failure to comply with the statutory requirements for a tax appeal deprives a trial court of subject matter jurisdiction. This principle has regularly been applied to administrative appeals. Bittle v. Commissioner of Social Services, 249 Conn. 503, 504-505, 734 A.2d 551 (1999); Kindl v. Dept. of Social Services, supra, 69 Conn. App. 564-65. We recognize that tax appeals differ from other administrative appeals because only tax appeals are trials de novo. See, e.g., Jones v. Crystal, 242 Conn. 599, 602, 699 A.2d 961 (1997), overruled in part on other grounds, Lisee v. Commission on Human Rights & Opportunities, 258 Conn. 529, 542 n.16, 782 A.2d 670 (2001); Texaco, Inc. v. Groppo, 215 Conn. 134, 137, 574 A.2d 1293 (1990). For jurisdictional purposes, however, we can see no distinction between tax appeals and other statutory appeals.

The jurisdictional issue in this case turns on the undefined term “service” in § 12-237. If, as the commissioner argues, § 12-237 permitted him to make service by first class mail, the taxpayer bore the risk of delay in the receipt of notice of an adverse decision by the commissioner. Such a delay, as in this case, usually will shorten the time to file a tax appeal in the Superior Court. To the contrary, if, as the taxpayer argues, § 12-237 contemplated service by a taxpayer’s receipt of notice, the commissioner bore the risk of uncertainty about the date when notice had been received, with the consequence that the appeal period might be prolonged beyond the period contemplated by the statute.

Our construction of the term “service” in § 12-237 proceeds without the benefit of statutory guidance or appellate judicial gloss. Both parties rely on statutes that expressly do, or do not, authorize service by first class mail. Those statutes do not shed light on “service” as an undefined term. The judicial record is equally barren. Our research has not found any Connecticut appellate cases that allude to the meaning of the undefined term “service” in § 12-237.

The trial court concluded that § 12-237 should be construed in favor of the taxpayer because that construction was consistent with principles of fairness and due process. Without an express definition of “service,” the court was understandably reluctant to ascribe to the legislature the intent to deem a taxpayer to have received notice when it had not actually received the notice. We agree with the court’s conclusion.

The court’s conclusion conforms to the established rule of statutory construction with respect to statutes that implicate the subject matter jurisdiction of the Superior Court. Whenever such a statute contains language that is ambiguous, or, as in this case, fails to define an essential term, the statute is construed in favor of subject matter jurisdiction. See, e.g., Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001); Banks v. Thomas, 241 Conn. 569, 582-83, 698 A.2d 268 (1997); Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001).

Furthermore, the court’s conclusion is consistent with the policy position that our Supreme Court has taken with regard to administrative appeals pursuant to General Statutes § 4-183 (c). In these appeals, our Supreme Court has construed requirements of service and notice so as to preserve the appellate rights of those aggrieved by governmental orders. See, e.g., Bittle v. Commissioner of Social Services, supra, 249 Conn. 505; Tolly v. Dept. of Human Resources, supra, 225 Conn. 28-29. We note that the court’s decisions have turned, in part, on the lack of a showing of prejudice to the governmental agency in question. This case, similarly, contains no allegation of prejudice to the commissioner as a result of his delayed notice of the taxpayer’s intent to appeal.

In sum, we conclude that, in the absence of a definition of “service” in § 12-237, the trial court properly denied the commissioner’s motion to dismiss the taxpayer’s appeal as untimely. The court had subject matter jurisdiction to adjudicate the merits of the taxpayer’s appeal with respect to the measure of its tax liability under § 12-218.

C

The commissioner’s final argument rests on the legislature’s 1999 enactment of § 12-2f by Public Acts 1999, No. 99-121, § 26. Section 12-2f now expressly permits the commissioner to serve notice by first class mail. For the future, our discussion in part I B is academic.

At the time when the new section became effective, the trial court in this case already had denied the commissioner’s motion to dismiss. It had not yet, however, considered the taxpayer’s claim on its merits. The commissioner did not bring the enactment of § 12-2f to the attention of the trial court.

The commissioner, nonetheless, has the right to raise in this court the question of the impact of § 12-2f on the taxpayer’s right to judicial review. A claim of lack of subject matter jurisdiction cannot be waived. Such a claim properly may be raised at any time by the parties or by the court. “[Wjhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case . . . .” (Internal quotation marks omitted.) Kindl v. Dept. of Social Services, supra, 69 Conn. App. 565; see also Practice Book § 10-33; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987).

The commissioner contends that § 12-2f applies to this case because, in his view, the legislature enacted § 12-2f to clarify, rather than to change, existing law. He does not dispute the presumption that a statutory amendment of substantive rights was intended to change existing law and therefore has only prospective application. General Statutes § 55-3; Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 516-17, 767 A.2d 692 (2001); Coley v. Camden Associates, Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). This presumption is, however, rebuttable. Andersen Consulting, LLP v. Gavin, supra, 516-17.

The legislature may manifest its intent to enact a new statute to clarify rather than to change existing law. Legislation intended to clarify the original intent of an earlier statute “necessarily has retroactive effect.” (Internal quotation marks omitted.) Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998). The commissioner maintains that § 12-2f clarifies the legislature’s original intent in enacting § 12-237.

The commissioner acknowledges that he cannot prevail unless he can point to express indicia of the legislature’s intent to enact § 12-2f as a clarifying statute. He claims that the legislature manifested its intent in two ways.

First, because the legislature enacted § 12-2f promptly after the trial court’s ruling on jurisdiction, the commissioner argues that it is reasonable to infer that § 12-2f was intended to correct the court’s decision. The legislative record does not support this inference. The commissioner has not pointed to any mention of the decision anywhere in the legislative history of § 12-2L

Second, the commissioner refers to several instances in the legislative commentary on the bill that became Public Act 99-121 in which a speaker described the act as containing technical changes and corrections in our tax laws. These statements must be read in the context of an omnibus bill addressing a laundry list of the commissioner’s statutory concerns. The commissioner has not cited any legislative statement relating specifically to § 26 of the act, which contained the new § 12-2L The same legislature revised § 12-237, but in a separate act. See Public Acts 1999, No. 99-215, § 24. There is no legislative history suggesting linkage between these two acts. The absence of such linkage may reflect the legislature’s recognition that § 12-2f has a broader scope than § 12-237, because the new section applies, across the board, to all “service” provisions anywhere in title 12 of the General Statutes.

It was the commissioner’s burden to establish that the legislature intended a new statute to be a clarification, rather than a change, in existing law. To meet this burden, the commissioner was required to adduce specific legislative testimony to that effect. See Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 721, 714 A.2d 1209 (1998). The commissioner did not make such a showing. We conclude, therefore, that § 12-2f does not govern this case so as to deprive the trial court of jurisdiction to consider the merits of the taxpayer’s appeal.

In sum, we affirm the decision of the trial court that it had subj ect matter jurisdiction to hear this tax appeal. The court properly concluded that § 12-237 did not authorize the commissioner to serve notice by the use of first class mail. We conclude that the subsequent enactment of § 12-2f, which did authorize such service, did not cause the trial court to lose jurisdiction retroactively.

II

SECTION 12-218

On the merits, the commissioner challenges the propriety of the trial court’s determination that the taxpayer’s liability should have been measured by the three factor formula contained in § 12-218 (b) rather than, as the commissioner maintains, by the single factor formula contained in § 12-218 (a). The commissioner argues that § 12-218 (a) applies because, in his view, the taxpayer’s income was not derived from the manufacture, sale or use of tangible personal or real property. We must decide whether this is an apt characterization of the manner in which the taxpayer operates its market research business. Like the trial court, we are persuaded that the taxpayer’s use of telephone and computer equipment was an integral part of its operation and consequently that its taxable income should be apportioned to Connecticut in accordance with § 12-218 (b).

At the outset, we note that, in construing § 12-218, we must apply a statute that requires us to determine whether a taxpayer’s income is “derived from . . . [the] use of tangible personal . . . property”; General Statutes § 12-218 (b); without guidance about the meaning of that phrase. In the absence of statutory enlightenment, we must construe § 12-218 in accordance with the principle that any ambiguity in its application must be resolved in favor of the taxpayer and against the commissioner. Andersen Consulting, LLP v. Gavin, supra, 255 Conn. 511; Foodways National, Inc. v. Crystal, 232 Conn. 325, 331, 654 A.2d 1228 (1995).

Bearing this principle in mind, we now turn to the applicability of § 12-218 to the facts of this case. The facts found by the trial court are undisputed. “[The taxpayer] is a Delaware coiporation with offices located throughout this country as well as in twenty-seven other countries. [The taxpayer] is a major market research company performing marketing research for major corporations such as Kraft Foods, Cadbury, United Distilleries, and Hershey Chocolates. The primary activity of [the taxpayer] is to measure the effects of advertising and brand development. This is done by collecting and analyzing data concerning many consumer and market related issues such as consumer product recognition, market share, advertising and other matters that are important to advertisers and consumer product marketers.

“[The taxpayer] basically conducts telephone surveys through a very controlled and sophisticated process to find out what is on consumers’ minds, then analyzes this information by downloading it into computers. The process used by the interviewers is known as the Computer Assisted Telephone Interview (CATI). [The taxpayer’s] process of collecting data is labor and capital intensive because [it] uses computers, telephones and other equipment to gather and analyze the market data.

“In 1990 and 1991, [the taxpayer] maintained five data collection centers in this country. Each data collection center operated from 3 p.m. to 10 p.m., using hundreds of telephone interviewers at each data collection center. Eighty-five percent of the data collection is done through telephone surveys. Fifteen percent of the data collection is conducted through mail surveys. The telephone surveyors used by [the taxpayer] work solely for [the taxpayer], and are trained and supervised by [the taxpayer]’s employees. Each telephone interviewer has his or her own station to make calls. The interviewer dials the telephone from a number provided by a computer. The interviewer’s computer has a screen containing a scripted program from which the interviewer reads and then enters the responses into the computer. All of the interviewers have the same computer questions to provide consistency and maintain the integrity of the surveys. The telephone surveyors use telephones and high speed computers to call approximately 35 million households per year.

“Approximately 40,000 phone hours per month are used to gather data. After the raw data is collected by the interviewers, powerful computers are used to analyze the information. In formulating and analyzing the responses to the surveys, [the taxpayer] generally goes through a four-step process by: (1) designing a sampling plan, (2) collecting respondent data, (3) tabulating the results, and (4) formulating its analysis. [The taxpayer’s] staff is then able to present its final analysis and conclusions to its clientele. [The taxpayer] delivers a personal presentation and written report to a client reviewing the results of its analysis, with computer generated charts and graphs depicting and displaying the data compiled by [the taxpayer].

“[The taxpayer]’s capital costs consist of the purchase of computers, screens, telephone systems and software licenses. In 1989, [the taxpayer] spent $174,000, or 28 [percent] of its total expenditures, for its information system. Apart from the expenditure of $174,000 for its information system, [the taxpayer] spent approximately $400,000 in 1989 for equipment not related directly to the production of income, such as office furniture, office telephones, cubicles and work stations. In 1990, [the taxpayer] spent $374,000 for its information system, which was directly related to the production of income.” The commissioner argues that, despite the taxpayer’s pervasive use of computers, telephones and telephone interviewers, the trial court improperly permitted the taxpayer to pay its Connecticut tax in accordance with the three factor formula of § 12-218 (b). He acknowledges that “telephone interviewing was necessary as a matter of economic efficiency (time and money) for the [taxpayer] to remain competitive in the industry.” Nonetheless, he maintains that the taxpayer’s use of tangible personal property was not essential to the performance of its services because the taxpayer could have gathered information through personal interview, by telephone or by mail questionnaires.

In Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 423-26, 521 A.2d 569 (1987), our Supreme Court discussed the applicability of § 12-218 to service providers who use tangible personal property in the course of their commercial activities. After rejecting the proposition that all service providers automatically have their income apportioned to this state in accordance with the one factor formula contained in § 12-218 (a), the court examined the relevant facts.

The taxpayer in Schlumberger provided wireline services to the oil and gas industry to determine the feasibility of producing oil or gas at a designated site. For that purpose, the taxpayer collected on-site data through the use of a specially designed sensory instrument. The data was then transmitted to a mobile laboratory where it was recorded in a form usable by the taxpayer’s engineers. Id., 426-27. The engineers’ analyses were the basis of the taxpayer’s reports to its customers.

Under those circumstances, Schlumberger held that the taxpayer’s income should be apportioned in accordance with the three factor analysis of § 12-218 (b). Id., 429. That holding is controlling in this case. Like the trial court, for taxation purposes, we cannot see a significant difference between Schlumberger’s wireline services and this taxpayer’s marketing research services. In each, the taxpayer gathered data and provided reports based on information that could not have been acquired, economically, without the use of tangible personal property. In each case, therefore, the use of tangible personal property was an essential part of the taxpayer’s ability to conduct its business profitably.

We recognize the commissioner’s concern that, if we sustain the applicability of § 12-218 (b) under the circumstances of this case, § 12-218 (a) may become a dead letter. Our Supreme Court considered and rejected this argument in Schlumberger. “If indeed few modem businesses today operate without relying on the use of tangible property as an essential part of their businesses, and the class of § 12-218 (a) taxpayers is shrinking, it is for the legislature, and not for the courts, to decide whether the reach of the three factor formula of § 12-218 (b) has become too all inclusive.” Id., 426.

The legislature has not amended subsections (a) or (b) of § 12-218 in any relevant way for fifteen years. We presume that the legislature is aware of a judicial interpretation of a statute and that its subsequent non-action may be understood as a validation of that interpretation. White v. Burns, 213 Conn. 307, 333, 567 A.2d 1195 (1990); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987); Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 256, 614 A.2d 857 (1992).

In conclusion, in light of the facts of this case, we agree with the trial court that the taxpayer’s Connecticut income tax is to be measured in accordance with § 12-218 (b). Because the apportionment factors contained in § 12-218 (b) have not yet been applied to the taxpayer’s income, we remand this case for further consideration by the commissioner in accordance with this opinion.

The judgment is affirmed and the case is remanded with direction to remand the case to the commissioner of revenue services for a determination of the taxpayer’s corporate income tax under § 12-218 (b).

In this opinion the other judges concurred.

       General Statutes § 12-214 (a) (1) provides in relevant part that “[e]very mutual savings bank, savings and loan association and every company engaged in the business of carrying passengers for hire over the highways of this state in common carrier motor vehicles doing business in this state, and every other company carrying on, or having the right to carry on, business in this state, including a dissolved corporation which continues to conduct business, except those companies described in subdivision (2) of this subsection, shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity or as an unincorporated association taxable as a corporation for federal income tax purposes or maintaining an office within the state, such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state . . . .”

       General Statutes § 12-218 provides in relevant part: “(a) Any taxpayer which is taxable both within and without this state shall apportion its net income as provided in this section. For purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business and is subject to a net income tax, a franchise tax for the privilege of doing business, or a corporate stock tax, or if such state has jurisdiction to subject such taxpayer to such a tax, regardless of whether such state does, in fact, impose such a tax.
      “(b) The net income of the taxpayer, when derived from business other than the manufacture, sale or use of tangible personal or real property, shall be apportioned within and without the state by means of an apportionment fraction, the numerator of which shall represent the gross receipts from business carried on within Connecticut and the denominator shall represent the gross receipts from business carried on everywhere, except that any gross receipts attributable to an international banking facility, as defined in section 12-217, shall not be included in the numerator or the denominator. Gross receipts as used in this subsection shall have the same meaning as used in subdivision (3) of subsection (c) of this section.”

       The assessment was in the amount of $116,666.15 plus interest and penalty.

       General Statutes § 12-237 provides in relevant part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the Commissioner of Revenue Services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of New Britain, which shall be accompanied by a citation to the Commissioner of Revenue Services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the Treasurer to pay the amount of such relief, with interest at the rate of eight per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which may be denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       By contrast, issues relating to the adequacy of service of process in a civil case involve only the court’s personal jurisdiction. See, e.g., Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002).

       See footnote 4.

       Public Acts 1999, No. 99-215, § 24, amended § 12-237 to change the judicial district to which tax appeals must be brought.

       By contrast, in Public Acts 1999, No. 99-121, § 4, the legislature amended § 12-218 (h).


author: BISHOP, J.

text:
    JEROMIE THORPE v. COMMISSIONER OF CORRECTION
    (AC 22220)
    Lavery, C. J., and Mihalakos and Bishop, Js.

      Argued September 20 —
    officially released December 3, 2002

      Jeremy N. Weingast, for the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (respondent).
   Opinion

BISHOP, J.

The petitioner, Jeromie Thorpe, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his petition was barred by the principle of res judicata. We affirm the judgment of the habeas court.

The petitioner was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and possession of narcotics in violation of General Statutes § 21a-279. That conviction arose from the shooting of the victim, Thomas Byrd, and the petitioner’s possession of drugs. The facts underlying the petitioner’s arrest and conviction are set forth in detail in State v. Hilton, 45 Conn. App. 207, 209-12, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998). During his trial, the petitioner filed a motion for severance of the three offenses, which was denied by the corut. The petitioner also objected to the introduction into evidence of an assault rifle that was seized during the police investigation. The objection was overruled.

On direct appeal to this court, the petitioner claimed, inter alia, that (1) the denial of his motion to sever caused him substantial prejudice and denied him his constitutional right to a fair trial, and (2) the court improperly admitted the assault rifle into evidence because it was not relevant and its prejudicial impact outweighed its probative value. This court affirmed the judgment of the trial court. Id., 224.

The petitioner then filed apetition for a writ of habeas corpus in the United States District Court for the District of Connecticut in November, 1999. In his petition, the petitioner claimed that both the denial of his motion to sever and the admission of the assault rifle into evidence resulted in a violation of his due process rights to a fair trial as guaranteed by the fourteenth amendment to the United States constitution. On March 20, 2000, the court, Chatigny, J., dismissed the petition without prejudice because of the petitioner’s failure to exhaust his state remedies.

A petition for a writ of habeas coipus, dated August 7, 2000, subsequently was filed in Superior Court. The petitioner raised the same federal due process claims in that petition as were raised in his federal habeas corpus petition. The respondent commissioner of correction filed a motion to dismiss the habeas petition on May 10, 2001, arguing that the petitioner’s claims were barred by the doctrine of res judicata. The respondent pleaded in the alternative that the petitioner had failed to establish good cause for his failure to raise his claims on direct appeal. The court, Hon. Richard M. Rittenband, judge trial referee, granted the respondent’s motion to dismiss on July 13, 2001, concluding that the petitioner’s claims were barred by res judicata. The court granted certification to appeal, and this appeal followed.

Before analyzing the petitioner’s claims, we set forth our standard of review for a dismissal of a petition for a writ of habeas corpus. “The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . Thus, [wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 65 Conn. App. 172, 175, 782 A.2d 201 (2001).

The habeas court determined that res judicata warranted the dismissal of the habeas petition. “[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim.” (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 44 Conn. App. 746, 749, 692 A.2d 1285 (1997). To determine whether two claims are the same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action. See id. “The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . [Wjhere a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.” (Internal quotation marks omitted.) Id.

Here, the petitioner’s first federal due process claim, arising from the denial of his motion to sever, is barred by res judicata. On direct appeal to this court, the petitioner’s first claim was “[w]hether the trial court erred by refusing to grant [his] motion to sever, which severely prejudiced [him] and caused substantial injustice.” In his appellate brief on direct appeal, the petitioner provided ten pages of argument and analysis supporting that claim. Specifically, the petitioner refers to “his constitutional right to a fair trial” being violated by the failure to sever the offenses. On appeal, this court phrased the issue as one of a “constitutional right to a fair trial”; State v. Hilton, supra, 45 Conn. App. 212; and determined that the trial court did not abuse its discretion in denying the motion for severance. Id., 216. It is clear from the record that the petitioner litigated his first federal due process claim folly and fairly on direct appeal, and that this court issued a decision on the merits of that claim. The habeas court, therefore, correctly determined that the petitioner was barred by res judicata from relitigating that first federal due process claim in his habeas petition.

The petitioner’s second federal due process claim concerning the admission of the assault rifle into evidence is not barred by res judicata. Our review of the petitioner’s appellate briefs in his direct appeal demonstrates that he claimed that the trial court improperly had admitted the assault rifle into evidence on evidentiary grounds only. The arguments in support of the petitioner’s claim were based solely on evidentiary law, and no claim was made regarding the petitioner’s constitutional rights. As a result, this court analyzed and ruled on the claim on direct appeal on the basis of evidentiary law without discussing the petitioner’s due process rights to a fair trial. We conclude that the petitioner did not raise or litigate the second federal due process claim on direct appeal and that res judicata therefore is not applicable.

Our conclusion that the petitioner’s claim regarding the assault rifle is not barred by res judicata does not, however, lead inescapably to the view that the habeas court improperly dismissed the habeas petition. Although res judicata does not bar the petitioner’s second federal due process claim, we note that this court is “authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . . Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” (Citation omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992). As a result, even though the habeas couit improperly concluded that the second federal due process claim was raised on direct appeal, we affirm that court’s dismissal of the habeas petition because the claim was not preserved for review adequately due to the petitioner’s failure to raise it on direct appeal, which constitutes a procedural default.

“The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .” (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). “Because [c]ause and prejudice must be established conjunctively, we may dispose of this claim if the petitioner fails to meet either prong.” (Internal quotation marks omitted.) Guadalupe v. Commissioner of Correction, 68 Conn. App. 376, 385, 791 A.2d 640, cert. denied, 260 Conn. 913, 796 A.2d 557 (2002).

“Cause turns on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” (Internal quotation marks omitted.) Bowers v. Commissioner of Correction, 33 Conn. App. 449, 451, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994). “Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default.” Mercer v. Commissioner of Correction, 49 Conn. App. 819, 824, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998).

Here, the habeas court concluded that there was no failure to raise the second federal due process claim on direct appeal and, therefore, there was no need for a showing of good cause because both the petitioner and the respondent asserted that the claim had been raised on direct appeal. As previously stated, however, the petitioner did not raise the second federal due process claim in his direct appeal. Although the habeas court did not make a specific finding regarding the existence of good cause, this court is permitted “to review the record in an effort to determine whether any evidence of cause and prejudice has been provided by a petitioner. Where no evidence has been provided, this court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” Daniels v. Warden, 28 Conn. App. 64, 72, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992). At the hearing on the motion to dismiss the habeas petition, the petitioner did not articulate any evidence of good cause, and, therefore, we conclude that he failed to meet his burden.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also is known as Michael Hilton. The opinion in his appeal from his conviction of the underlying crimes was captioned, State v. Hilton, 45 Conn. App. 207, 209-12, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998).

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses wi1h the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years . . .

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part that “[n]o State shall . . . deprive any person of life, liberty or property, without due process of law . . .

       It should be noted that there is contradiction among some of the petitioner’s briefs and pleadings, and in the assertions of counsel, regarding whether the second federal due process claim was raised on direct appeal. At the hearing on the respondent’s motion to dismiss, the petitioner’s counsel stated that he believed that both federal due process claims had been raised and decided on direct appeal. That was relied on by the habeas court to determine that res judicata barred both claims. The petitioner also argued exhaustion of state remedies in his federal habeas petition. By appealing from the habeas court’s judgment dismissing his petition, however, the petitioner effectively is arguing that res judicata is not applicable and that the federal due process claims were not raised on direct appeal.

       Although the doctrine of res judicata in its fullest sense bars claims that could have been raised in a prior proceeding, such an application in the habeas corpus context would be unduly harsh. Moreover, it would render largely irrelevant the cause and prejudice standard for reviewability of habeas claims not raised in an earlier proceeding. The “decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the [respondent] and of the courts in bringing litigation to a close . . . and the competing interest of the [petitioner] in the vindication of a just claim. . . . The doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” (Citation omitted; internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 591, 674 A.2d 1290 (1996). Unique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. See McCarthy v. Warden, 213 Conn. 289, 294, 567 A.2d 1187 (1989), cert. denied, 489 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990). Foremost among those considerations is the interest in making certain that no one is deprived of liberty in violation of his or her constitutional rights. Id., 295. With that in mind, we limit the application of the doctrine of res judicata in circumstances such as these to claims that actually have been raised and litigated in an earlier proceeding.

       The respondent bears the initial burden to raise a claim of procedural default. See Milner v. Commissioner of Correction, 63 Conn. App. 726, 733-34, 779 A.2d 156 (2001). We note that the respondent in his return did allege that the petitioner had procedurally defaulted from raising his federal due process claims in a habeas petition because they should have been raised on direct appeal.

       In this appeal, however, the respondent asserts that the claim was not raised on direct appeal.