author: Shea, J.

text:
    Andres Sanchez et al. v. Warden, State Prison
    (13820)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued December 12, 1989
    decision released February 20, 1990

      Richard T. Biggar, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant-appellee (respondent).

      David L. Kent, for the appellees and appelleeappellant (petitioners and petitioner Joseph Wilson).
   Shea, J.

The principal issue in this appeal is whether the first amendment to the United States constitution was violated when the respondent, the warden of the Connecticut Correctional Institution at Somers, denied the petitioners access to radios with sound emitting speakers, despite having allowed them to possess radios that could be listened to by means of headphones. We hold that the first amendment was not implicated by the respondent’s policy and conclude, therefore, that the trial court erred when it ordered the respondent to make regular radios available to all prisoners at Somers.

These actions, consolidated for trial before the Superior Court, Axelrod, J., had as their origin a habeas corpus action brought by petitioner Wilson in 1986, seeking, inter alia, the return of an “AM/FM Radio” and color television set that had been confiscated by the respondent. After a trial held on August 8, 1986, the court, O’Neill, J., ordered that the “radio/stereo/recorder” be returned to Wilson and that “Mr. Wilson’s family or friends [could] collect the television set that was taken.”

In the wake of this order, petitioners Wood, Hansen, Veal, Walker and Sanchez each filed, on various dates during the period from September, 1986, through February, 1987, a petition for a writ of habeas corpus, alleging that the respondent had denied them access to radios essentially similar to the radio that had been returned to Wilson. The respondent meanwhile, on September 25, 1986, moved to set aside Judge O’Neill’s order returning Wilson’s radio. In an affidavit supporting the motion, counsel for the respondent asserted that it had “come to respondent’s attention . . . that the radio in question ha[d] a recording capacity.” The respondent claimed that the judgment should be set aside since the issue of a recording device had not been considered at the trial before Judge O’Neill and that “[s]uch a recording capacity [could] well threaten the security of [the] petitioner and other inmates at CCI, Somers.” After considering an objection filed by Wilson, the trial court, Ripley, J., set aside the prior judgment “insofar as it pertains to disposition of the recording device.”

In response to the petitioner Wilson’s motion for a full hearing, motion to show cause, motion for judgment and application for a writ of mandamus, the trial court, Mack, J., held a hearing on March 6, 1987. Wilson stated at this hearing that the purpose of his motions was to “set the verdict [of Judge O’Neill] back in its place.” Wilson charged that counsel for the respondent had filed the supporting affidavit in bad faith, since Judge O’Neill had, as evidenced by the transcript of the prior trial, been aware of the recording device. On March 16, 1987, Judge Mack denied Wilson’s various motions and ordered that a new trial be conducted on the issue of the recording device.

The respondent, on May 9, 1988, moved to quash each of the pending petitions, alleging that they raised issues “which [were] not cognizable in habeas corpus.” Each motion was denied by the trial court, Axelrod, J., on May 11, 1988. The respondent then filed a return in each case, asserting that each petitioner was “not allowed to possess a ‘boom-box’ type radio/recorder at CCI, Somers because the possession of such radios is a threat to the security of inmates, staff and visitors . . . .” The trial court then granted, also on May 11, the respondent’s motion to consolidate all of the pending cases. The trial took place over the course of two days, May 11 and May 13,1988. On the latter date, the trial court canvassed the petitioners and allowed an amendment to each of the petitions “to include a First Amendment violation as part of the claims.”

In its memorandum of decision, the trial court concluded that “access to a radio is a protected First Amendment right,” and, on the basis of Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), and Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984), granted the petitions and ordered that the respondent “forthwith make available for sale at the CCI, Somers commissary regular sound emitting radios that do not require the use of earplugs to be heard.” The respondent has appealed from this judgment claiming that the trial court erred in: (1) concluding that the petitioners had a first amendment right to possess radios with external speakers; and (2) hearing the habeas corpus petitions, since they involved no issue affecting the constitutionality of the petitioners’ confinement. The petitioner Joseph Wilson has filed a cross appeal in which he claims that the trial court erred in setting aside the prior judgment rendered in his favor. Further facts pertinent to these issues will be set forth in the opinion that follows. We find error on the appeal and no error on the cross appeal.

I

In his principal claim of error, the respondent asserts that: (1) the trial court erred in concluding that there was any constitutional difference between regular radios and headphone radios; and (2) even if there were such a difference, the right to possess a regular radio was denied in this case on the basis of a valid penological security interest. We agree with the first of the respondent’s assertions and, therefore, need not address the merits of the second.

The trial court found the following relevant facts. Wilson sought the return of his boom box radio, which included a recording device. Petitioner Sanchez sought to possess a radio similar to Wilson’s, with a recording device. Sanchez claimed that the headphone radio made available to him through the prison commissary “hurt his ears.” Petitioner Walker also claimed that a headphone radio hurt his ears, and sought possession of a regular radio with a recording device, albeit one capable of recording radio broadcasts only, rather than live conversations. Petitioner Veal claimed that use of a headphone radio could prevent him from hearing an “emergency freeze order” while in the open yard at the prison. Veal sought the right to purchase a regular radio, similar to those that previously had been sold in the prison commissary. Petitioner Hansen sought the return of a radio he had purchased at the Whiting Forensic Institute prior to his transfer to Somers. The radio did not include a recording device, as it had been removed prior to Hansen taking possession of the radio. Petitioner Wood sought the return of a radio he had possessed when he arrived at Somers. The radio had dual speakers and a recording device. Wood was informed by prison officials that he could not retain the radio due to its size, the number of speakers and the recording device.

The trial court also found that “[t]he Somers prison radio regulation in issue prohibits all inmates from obtaining a [regular radio] after arriving at Somers, while allowing all inmates who had [regular] radios in Somers prior to this regulation being adopted to retain such radios, and allowing all inmates who arrive at Somers, with a [regular] radio obtained from a community correctional center that sells such radios to retain such radios.” Further, inmates could transfer their regular radios to other inmates upon leaving the institution and could have regular radios repaired at the prison. The only reason advanced by the respondent for this apparent disparity in the type of radios that could be possessed by inmates was a desire “not to impose on such inmates [possessing regular radios] the cost of purchasing a second radio after arriving at Somers.”

The trial court determined initially that “access to a radio is a protected First Amendment right” and, further, that “radio networks and broadcasters are protected by the First Amendment.” On the basis of the facts set forth above, the trial court then concluded that the respondent’s radio policy interfered with the petitioners’ access to regular radios and also placed “incidental and consequential restrictions” on the receipt of the broadcasters’ transmissions. Having found restrictions upon constitutionally protected rights of free speech, the trial court concluded: (1) that the regulation, as it related to the petitioners, was constitutionally invalid under the “reasonably related to legitimate penological interests” standard of review announced by the United States Supreme Court in Turner v. Safley, supra, 89; and (2) that the regulation, as it related to broadcasters, was invalid under either the “least restrictive alternative” standard of review set forth in Procunier v. Martinez, supra, 413-14, or the “reasonably related” standard of Turner. The trial court did conclude, however, that the petitioners’ claims regarding boom box radios and recording devices did not raise constitutional issues. The court ordered, therefore, only that the respondent make regular radios available to all inmates at Somers.

We have no occasion either to agree or to disagree with the thoughtful and thorough review undertaken by the trial court, since we conclude that on this record the petitioners have failed to meet their burden of establishing an imposition on their constitutionally protected right to free speech. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987). Assuming, for the purpose of this appeal, that the trial court correctly determined that a prison inmate is constitutionally entitled to access to a radio and that broadcasters are constitutionally entitled to have their transmissions heard by prison inmates, we conclude that the respondent’s radio policy, as applied in this case, simply does not implicate the free speech protections contained in the first amendment to the United States constitution.

Procunier v. Martinez, supra, and Turner v. Safley, supra, both dealt, in relevant part, with prison restrictions placed upon the sending and receipt of mail by inmates. In each case, however, the question before the court was not whether censorship by prison officials infringed upon rights protected by the first amendment, a point that was undisputed. The court in those cases was instead formulating “a standard of review for prisoners’ constitutional claims that [was] responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.’ ” Turner v. Safley, supra, 85, quoting Procunier v. Martinez, supra, 406. Here, by contrast, the respondent claims that there is no first amendment distinction between regular radios and headphone radios, and, therefore, no first amendment issue is involved. We agree.

As the Supreme Court of the United States has recently stated, “we have not traditionally subjected every criminal and civil sanction imposed through legal process to ‘least restrictive means’ scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in [United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968) (burning draft card)], or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star [& Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983) (tax imposed on newsprint and ink)].” Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-707, 106 S. Ct. 3172, 92 L. Ed. 2d 568 (1986). The court concluded, consequently, that “the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happened] to sell books.” Id., 707. The court reasoned that “First Amendment values may not be invoked by merely linking the words ‘sex’ and ‘books.’ ” Id., 705.

In the case before us, the trial court invoked first amendment values by merely linking the words “radio” and “restrictions,” without first determining whether the petitioners’ access to radio transmissions was truly restricted. While we cannot agree, given the differing standards for possession of radios at Somers, with the respondent’s claim that the petitioners were asserting “petty gripes about a prison policy that in no way involve[d] any constitutional issue,” we do conclude that the evidence presented to the trial court did not establish a constitutionally impermissible restriction on the petitioners’ access to radio broadcasts. There was no evidence presented that headphone radios did not operate as well as regular radios, nor was there any assertion that the restriction upon headphone radios was a pretextual means of lessening the amount of radio listening engaged in within the prison. See id., 708 (O’Connor, J., concurring). The only evidence presented to the trial court that would arguably begin to support the type of restriction necessary to trigger first amendment analysis was the testimony of petitioners Sanchez and Walker that the headphone radios hurt their ears, and petitioner Veal’s testimony that the headphone radio could have prevented him from hearing emergency freeze orders in the prison yard. We hold that such minor problems, which can be alleviated by other measures, do not constitute restrictions upon access to radio broadcasts sufficiently insidious to implicate first amendment analysis. We conclude, therefore, that the trial court erred in finding such a restriction and, consequently, in determining that the first amendment was implicated by the respondent’s policy concerning radio possession.

II

Although the conclusion we have reached in Part I adequately resolves the merits of the appeal, the respondent has also raised the issue of whether the remedy of habeas corpus should be made available for prisoners to attack the conditions of their confinement rather than its legality. The respondent filed motions to quash raising this issue in the trial court, which were denied.

In Flaherty v. Warden, 155 Conn. 36, 40, 229 A.2d 362 (1967), in which the petitioner by way of habeas corpus challenged a prison regulation denying the use of a conference room for the purpose of consultations between prisoners and their attorneys, this court declared that “[qjuestions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus.” The Superior Court, in Dukuly v. Warden, 34 Conn. Sup. 88, 377 A.2d 1344 (1977), a habeas corpus action in which the petitioners claimed that the conditions of confinement in administrative segregation at the state prison in Somers constituted cruel and unusual punishment and prevented them from practicing their religious beliefs, took a broader view of the scope of the writ, concluding that it was available to remedy “ ‘any kind of governmental restraint contrary to fundamental law.’ ” Id., 91, quoting Fay v. Noia, 372 U.S. 391, 405, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). “If the nonjudgmental aspects of restraint lead to restraint that has unconstitutional qualities and properties, a question is raised as to the legality of the detention.” Dukuly v. Warden, supra, 93. Other judges of the Superior Court have followed the view expressed in Dukuly that a petition for a writ of habeas corpus is not restricted to a challenge of the validity of the judgment under which a prisoner is incarcerated. Ciaramelia v. Brownell, 35 Conn. Sup. 117, 399 A.2d 843 (1978). “Necessarily, however, the only rights with which the court is concerned are those founded in the constitution or thought to be of a substantial character.” Id., 118.

A significant factor underlying the decision in Dukuly was the assumption that habeas corpus was the only practical method available to a prisoner for bringing to the attention of a court serious violations of his constitutional rights arising from his confinement. The opinion did not consider the Civil Rights Act of 1871; see 42 U.S.C. §§ 1983 and 1988; which provides such remedies as damages, both compensatory and punitive, injunctive relief and attorney's fees. Such an action may be brought in either a federal or a state court. Fetterman v. University of Connecticut, 192 Conn. 539, 549, 473 A.2d 1176 (1984). It is not self-evident that the standard relief granted in a habeas corpus action, discharge of the prisoner unless the violation of his rights is corrected, is necessarily more efficacious than the relief available to a successful § 1983 plaintiff.

Because the respondent has not, either on appeal or in the trial court, raised the possible availability of § 1983 as an alternative that the petitioners in this case could have pursued, it would be inappropriate for us at this time to resolve the issue of whether a § 1983 action rather than a petition for a writ of habeas corpus should have been the procedural vehicle utilized. Neither party has briefed the question. Accordingly, we await a more suitable' occasion to decide whether the scope of habeas corpus should be broadened to include challenges to conditions of confinement when § 1983 may be a viable alternative for presenting the petitioner’s claims. We need not consider denial of the respondent’s motions to quash, which does not raise a jurisdictional issue; Pi v. Delta, 175 Conn. 527, 400 A.2d 709 (1978); because our resolution of the appeal on its merits is a sufficient disposition and one that terminates this protracted litigation.

Ill

In his cross appeal, petitioner Wilson claims that the trial court erred in setting aside the judgment rendered by Judge O’Neill, which ordered the respondent to return to Wilson a radio that also contained a recording device. Acknowledging that the respondent’s motion to set aside the judgment was timely filed; see Practice Book § 326 and General Statutes § 52-212a; and that such a motion is addressed to the sound discretion of the trial court; Acheson v. White, 195 Conn. 211, 214-15, 214 A.2d 197 (1985); Wilson argues that the trial court, Ripley, J., abused its discretion in setting aside the prior judgment since both the respondent and Judge O’Neill were aware of and should have considered, at the prior trial, the fact that Wilson’s radio contained a recording device. From our review of the record and the transcripts of the trial before Judge O’Neill and of the hearing before Judge Mack, we conclude that Judge Ripley did not abuse his discretion in setting aside the judgment rendered by Judge O’Neill.

At the trial conducted before Judge O’Neill the primary issue was the actual ownership of a television set and radio that previously had been confiscated from Wilson’s cell. The respondent, at that trial, presented testimony from John Romanovicz, the property and claims officer at Somers. Romanovicz testified that he had checked Wilson’s property card and had determined that the television set that had been confiscated was not properly recorded as the property of Wilson. Conversely, the same check of Wilson’s property card indicated that the radio was properly recorded and had been “okayed” for his possession. On this basis, Romanovicz indicated that the institution would probably be willing to give the radio back to Wilson. The trial court’s order adopted this recommendation.

The respondent’s motion to set aside this judgment contained an affidavit, subscribed and sworn to by his counsel, which asserted that it had come to counsel’s attention that the radio included a recording device and that such a device “may well threaten the security of petitioner and other inmates at CCI, Somers.” Wilson claims that, because the radio had been in the possession of the respondent for some five months prior to the trial before Judge O’Neill and because Judge O’Neill specifically referred to the radio as a “radio/stereo/recorder,” it was an abuse of discretion to set aside the prior judgment based upon counsel’s assertion that the recording capability of Wilson’s radio had come to the respondent’s attention only after the conclusion of the trial before Judge O’Neill. While it may be true that the respondent either knew or should have known, at the time of the first trial, that Wilson’s radio contained a recording device, it was the significance of this recording device in relation to the prison policy prohibiting such devices, which was not brought to light before Judge O’Neill, that led to setting aside the earlier judgment.

At the hearing before Judge Mack, on March 6,1987, Wilson was heard concerning his various motions seeking to keep the prior judgment intact. Counsel for the respondent then informed the trial court: “Judge O’Neill ordered the boom box returned to Mr. Wilson based on the testimony of one of our correctional officials, who happened to be the property officer, that there was no reason why this stereo couldn’t be returned to Mr. Wilson. After that trial it came to my attention that the correctional official was incorrect, that there was a problem with this boom box and the problem was, from the Warden’s point of view, simply that the boom box contained a recording device. . . . The Warden’s position is that a recording device in this institution is a danger to the security of the inmates and the institution itself, all the people in it, and cannot be possessed by any inmate, not just Mr. Wilson.” Wilson has conceded that the respondent’s policy concerning possession of recording devices had not been brought to the attention of Judge O’Neill at the first trial. In light of this concession and the argument made by the respondent before Judge Mack, we conclude that there was no abuse of discretion in setting aside the judgment rendered by Judge O’Neill and ordering that a new trial take place.

There is error on the respondent’s appeal, the judgment is set aside and the case is remanded with direction to render judgment for the respondent; there is no error on petitioner Wilson’s cross appeal.

In this opinion the other justices concurred.

       The first amendment to the United States constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . . ” The protections afforded by this constitutional provision are applicable to state action by virtue of the due process clause of the fourteenth amendment to the United States constitution. See Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) (press); Fiske v. Kansas, 274 U.S. 380, 47 S. Ct. 655, 71 L. Ed. 1108 (1927) (speech).

       Parties to this appeal include the named petitioner and petitioners Steven J. Wood, Gary L. Hansen, Samuel J. Veal, Ronald Walker and Joseph Wilson.

       For the sake of clarity and consistency within this opinion, the following terms will be utilized: (1) “regular radio” will refer to any radio capable of transmitting sound to more than one listener by means of an internal sound emitting speaker; (2) “headphone radio” will refer to any radio that can be listened to by only one person, by means of headphones worn by that person; (3) “boom box radio” will refer to any radio, generally more than twelve inches in length, capable of transmitting sound to more than one person by means of separate dual speakers; and (4) “recording device” will refer to any electronic device, generally contained within a radio unit, capable of making cassette tape recordings of either radio broadcasts or conversations in the surrounding environment.

       The trial court determined that regular radios had been sold in the Somers commissary “from at least as far back as 1970, [until] December of 1982 or 1983,” when the present policy was instituted allowing only the purchase of headphone radios.

       The trial court found that of the various correctional institutions that transferred prisoners to Somers: (1) the Montville facility did not sell radios at its commissary; (2) the Litchfield, Hartford and Bridgeport facilities sold only headphone radios at their commissaries; (3) the Cheshire, New Haven and Carl Robinson facilities sold both headphone and regular radios at their commissaries; and (4) the Manson Youth Institute and the J. B. Gates facility sold only regular radios at their commissaries. None of the facilities transferring prisoners to Somers sold either boom box radios or radios containing recording devices.

       Since a discussion of these differing standards of review is unnecessary to our resolution of this issue, we will not engage in a detailed analysis of either. We do note that the trial court, in its memorandum of decision, determined that “[a] prison regulation impinging on First Amendment rights, in order to withstand a constitutional challenge, must be reasonably related to legitimate penological interests to the extent it restricts prisoners’ rights; [Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 224 (1974);] and in addition must meet the least intrusive means available test of [Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974),] to the extent the regulation restricts rights of nonprisoners.” The United States Supreme Court has, however, overruled Martinez to the extent that it suggests a constitutional distinction between mail sent to prisoners by nonprisoners rather than other prisoners. Thornburgh v. Abbot, 490 U.S. , 109 S. Ct. 1874, 1881, 104 L. Ed. 2d 459 (1989).

       This portion of the trial court’s decision has not been challenged by any of the petitioners.

       Justice O’Connor opined: “If ... a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 708, 106 S. Ct. 3172, 92 L. Ed. 2d 568 (1986) (O’Connor, J., concurring).

       We also hold that, if radio broadcasters possess a first amendment right to have their transmissions received by prison inmates, that right is not affected by the transmission being heard by the listener through headphones rather than speakers.

       Title 42 of the United States Code, § 1983 provides in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
      Title 42 of the United States Code, § 1988 provides in part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       Practice Book § 326 provides in part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any 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 succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”
      General Statutes § 52-212a is nearly identical in language to Practice Book § 326.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    State of Connecticut v. Larry Holliman
    (13625)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued December 7, 1989
    decision released February 20, 1990

      Katherine C. Callahan, with whom, on the brief, was Paul R. Kraus, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Hull, J.

A jury found the defendant guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), robbery in the first degree in violation of General Statutes § 53a-134 (a) (l), and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The trial court thereupon sentenced him to a total effective sentence of forty years incarceration. On appeal from this judgment, the defendant claims that the trial court erred in: (1) denying his pretrial motion to suppress the victim’s identification; (2) failing to exclude the victim’s identification on the ground that its prejudicial effect outweighed its probative value; and (3) admitting at trial certain irrelevant and prejudicial testimony of a witness. We find no error.

The jury could reasonably have found the following facts. At approximately 8 p.m. on March 11,1988, the victim, J, left her home in West Haven to walk to the nearby Nutmeg Farms Store to buy groceries for her mother. To get from her house to the store, J took a short cut through a wooded area that led to the back of the store. As she entered the Nutmeg Farms Store, a man, later identified as the defendant, who was sitting in a car parked on the side of the building, beeped the car’s horn at her. J paid little attention to the defendant and proceeded into the store to buy the groceries. After making her purchases, J walked out of the building and toward the path to return home. She noticed that the defendant was no longer in his car.

Although it was dark outside, floodlights dimly illuminated the rear area of the store. As J reached the edge of the building, she saw the defendant emerge suddenly from between two storage trailers kept behind the store. The defendant immediately struck J in the face and began choking her. He then pressed a screwdriver to her neck and told her that if she did not shut up he would kill her. After dragging her to the darker area between the two storage trailers, the defendant sufficiently undressed J to fondle her breasts and place his fingers in her vagina. He then engaged in vaginal intercourse with her. The defendant ultimately fled from the area, taking with him J’s groceries and approximately $12.30.

J then walked along the path to her home and police were summoned. Thereafter, she went to Yale-New Haven Hospital where physical evidence confirmed that she had been sexually assaulted.

Since the process by which J identified the defendant as her assailant is central to each of the defendant’s claims on appeal, we will detail the facts of the identification. On the afternoon of March 11,1988, the day that J was assaulted, A, a friend of J’s sister, was in the Nutmeg Farms Store. As she left the store, she walked past the defendant, then unknown to her, who was with some friends and was putting gas into his car. The defendant, in an attempt to engage A in conversation, asked her her name, where she lived, if she wanted to go out, and if she wanted some beer. While testifying at trial, A characterized the defendant’s behavior as a “pass.” She ignored the defendant and walked away. As she headed home, however, she saw the defendant following her in his car. Later that evening, before 8 p.m., the defendant rang the doorbell at A’s house. A looked out the window, recognized the defendant as the person whom she had earlier seen at the Nutmeg Farms Store, and told him to leave. The defendant returned to his car and then drove away.

Approximately fifteen minutes later, A walked to the Nutmeg Farms Store to use the public telephone that was located outside the store. When she arrived at the store, she saw the defendant’s unoccupied car parked near the woods. As A was preparing to use the telephone, she thought that she heard noises in the woods. Frightened by the noises, she called a friend who came to the store to give her a ride. When A learned the next day that J had been attacked the previous evening in the vicinity of the woods behind the Nutmeg Farms Store, she immediately suspected the defendant.

On April 2,1988, at approximately 10 a.m., A again saw the defendant at the Nutmeg Farms Store. The defendant was getting gas and had several women and children in his car. When he noticed A, the defendant turned his head and tried to avoid her. A immediately called J’s house and J’s sister and father drove to the store. By the time they arrived, however, the defendant had driven away in the direction of the town of Orange. A consequently got into the car with J’s sister and father, and they drove off in search of the defendant. Shortly thereafter, they located the defendant’s car in the parking lot of the Stop and Shop supermarket in Orange. The defendant was alone in the car. A and the others decided to go back to West Haven to get J.

When they returned with J to the Stop and Shop parking lot, A pointed to the defendant and asked J: “[I]s that the guy?” After A repeatedly asked J if the defendant was the man who had assaulted her, J indicated that he was. J also recognized the defendant’s car as the one that had been parked outside the Nutmeg Farms Store on the night of her assault. A, J and the others waited for the defendant’s companions to emerge from the supermarket, and then followed the car to a post office in New Haven. When the defendant went inside the post office, A, falsely identifying herself as J’s sister, called the New Haven police.

New Haven police officer Robert Crisci was sent to the area of the post office to see a female about a sexual assault. He was met by either J’s sister or A who described the defendant's car and told Crisci that the defendant had been involved in a sexual assault. Crisci eventually followed the defendant’s car a short distance and pulled it over. The defendant was arrested after a brief foot chase as he fled from the scene.

I

The defendant first claims error in the trial court’s failure to suppress J’s pretrial identification of him as the man who had assaulted her on March 11,1988. The defendant filed a motion to suppress the identification prior to the commencement of trial. Following an evidentiary hearing, the court denied the motion, concluding that there was no indication of “anything impermissibly suggestive on the part of [the] police in this matter.” The defendant argues that the identification procedure conducted by A was unnecessarily suggestive and that J’s resulting identification was so unreliable that its admission into evidence at trial deprived him of his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution.

A

The defendant asserts a violation of his rights under the due process clause of the fourteenth amendment to the United States constitution. This amendment provides in pertinent part that “[n]o State shall . . . deprive any person of life, liberty or property, without due process of law.” (Emphasis added.) The state contends that the defendant’s claim is not cognizable under this provision. We agree.

“Because the [fourteenth] [a]mendment is directed at the states, it can be violated only by conduct that may be fairly characterized as ‘state action.’ ” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). “[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities.” Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982). “The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.” Colorado v. Connelly, 479 U.S. 157, 166, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); see State v. Villafane, 171 Conn. 644, 657-58, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 597 (1984) (purely spontaneous on-street confrontation between the defendant and a witness to a holdup was not conducted by the police and thus did not violate the defendant’s right to due process); State v. Nims, 8 Conn. App. 631, 637, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986) (the viewing of the defendant while he was awaiting trial by a witness to the incident in question was not prearranged and was not in any way contrived by the police or the prosecuting authority and thus did not violate the defendant’s right to due process).

Notwithstanding this precedent, the defendant claims that the right to due process may be implicated by unnecessarily suggestive pretrial identification procedures even in the absence of state action. The defendant relies as authority for his position primarily on Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). According to the defendant, the early United States Supreme Court cases concerning the exclusion of identifications obtained through unnecessarily suggestive pretrial identification procedures; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926,18 L. Ed. 2d 1149 (1967); were decided on a “deterrence of police misconduct” rationale. The defendant argues, however, that Manson v. Brathwaite, supra, 116, in which the court held that evidence resulting from impermissibly suggestive police procedures would not be excluded if it were shown to be reliable based on the totality of the circumstances, shifted the focus of due process analysis from the deterrence of police misconduct to the reliability of the evidence in question. The defendant thus claims that since unreliable identifications may result from unnecessarily suggestive pretrial identification procedures conducted by private individuals, the protection of the due process clause is applicable.

The defendant then cites two cases in which he claims that the courts, relying on the Manson shift in analytical focus, found due process violations even though no state action was involved. Chavis v. Henderson, 488 F. Sup. 325 (S.D.N.Y.), rev’d in part, 638 F.2d 534 (2d Cir. 1980), cert. denied, 454 U.S. 842, 102 S. Ct. 152 70 L. Ed. 2d 125 (1981); People v. Walker, 97 Misc. 2d 171, 411 N.Y.S.2d 156 (1978). We find neither of these cases to be supportive of the position espoused by the defendant. Chavis involved a civilian who, accompanied by a police officer, went to the apartment of the victim of a mugging in an effort to obtain an identification from the victim. Acting as an interpreter, the civilian persuaded the victim to go outside to make the identification. The victim then identified Chavis, who was handcuffed and seated beside a police officer in the back seat of a marked police car, as her assailant. Chavis v. Henderson, supra, 327. The identification was found, on a petition for a writ of habeas corpus, to be unreliable because of “the highly suggestive identification procedures in which both the police and the interpreter were involved.” (Emphasis added.) Id., 336. The decision in Chavis, therefore, in which actions by the police and a private citizen were inextricably intertwined, does not support the defendant’s position that purely private action may give rise to a federal due process claim. Likewise, the decision of People v. Walker, supra, although it involved an identification procedure conducted exclusively by private individuals, does not support the defendant’s position. The New York court determined that under state statutory law, such a procedure could constitute “grounds” for the suppression of the resulting identification. Id., 172-73. The court did not find that the procedure gave rise to a claim under the fourteenth amendment, but rather merely employed federal due process standards as a guide in determining the admissibility under state law of the civilian-induced identification. Id., 173.

Despite the defendant’s claim to the contrary, it is well established that conduct that may fairly be characterized as state action is a necessary predicate to a challenge under the due process clause of the fourteenth amendment to the United States constitution. The defendant has failed to identify any state action in the pretrial confrontation between J and the defendant. Accordingly, the trial court’s denial of the defendant’s motion to suppress J’s identification and the subsequent admission into evidence at trial of that identification did not violate the defendant’s right to due process of law.

B

At oral argument, both the state and the defendant agreed that even if the defendant’s claim has no constitutional underpinning, the criteria established for determining the admissibility of identifications in the due process context are appropriate guidelines by which to determine the admissibility of identifications that result from procedures conducted by civilians. We also agree. Accordingly, we will engage in the two-pronged inquiry traditionally applied to identifications involving state action to determine the admissibility at trial of J’s identification. “ ‘ “ '[F]irst, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the “totality of the circumstances.” ’ ” State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311 (1987), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); [see Manson v. Brathwaite, supra, 113-14;] see also State v. Cubano, 203 Conn. 81, 93, 523 A.2d 495 (1987); State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 836 (1985). . . .’ ” State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987).

We turn first to the question of whether the identification procedure was unnecessarily suggestive. “The show-up, or one-to-one confrontation between a victim and the suspect police present to him, has been deemed ‘inherently and significantly suggestive; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976); because it conveys the message that the police have reason to believe the suspect guilty. State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979).’ State v. Maturo, 188 Conn. 591, 595-96, 452 A.2d 642 (1982); see also State v. Guertin, 190 Conn. 440, 456, 461 A.2d 963 (1983).” State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). The state concedes that the identification procedure at issue in the present case was likewise suggestive in that A pointed to the defendant and asked J: “[I]s that the guy?” The existence of suggestive circumstances does not, however, end our inquiry. We must further determine “whether such circumstances were impermissible or unnecessary. See Stovall v. Denno, [supra, 302].” Id. The defendant argues that they were. As the basis for his position, he relies on the testimony that A repeatedly pointed to the defendant while asking J if he was the man who had assaulted her. The defendant claims that this attempt by A “to foist her unilaterally formed impressions of who [had] assaulted [J] on [J]” rendered the identification procedure impermissibly suggestive.

The state argues, however, that even a suggestive procedure orchestrated by the police is permissible if exigent circumstances compel its use; State v. Gordon, 185 Conn. 402, 414, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); and that exigency should likewise permit a suggestive identification procedure orchestrated by a private individual. We agree. In the past, when we have been faced with the question of whether an exigency existed, wé have considered such factors as whether the defendant was in custody, the availability of the victim, the practicality of alternate procedures and the need of police to determine quickly if they are on the wrong trail. See State v. Mitchell, supra, 202; State v. Hamele, 188 Conn. 372, 377, 449 A.2d 1020 (1982); State v. Gordon, supra, 414-15; State v. Theriault, supra, 373. In the present case, the defendant was not in custody. A. had no apparent power physically or legally to detain the defendant without J’s identification of him. While J’s availability was not a factor, the defendant’s availability certainly was. A did not know the suspect by name, nor did she know whether she would ever see him again. Under the circumstances, no practical alternate procedures were available to A. She obviously could not detain the defendant to arrange a line-up or photographic array. Furthermore, if A had called the police, as the defendant suggests, their probable response would have been to ask whether the victim had identified the man, because without J’s identification it is doubtful that the police would have had probable cause to arrest the defendant. Finally, it was important to society and possibly to innocent suspects that A’s suspicion be quickly confirmed or dispelled. We therefore conclude that under the circumstances here presented, a prompt one-to-one confrontation was necessary and permissible. A’s actions were those of a reasonable citizen concerned about a serious crime committed upon a fellow citizen.

As stated previously, in order to prevail on his claim that J’s identification was inadmissible at trial, the defendant must demonstrate both that the identification procedure was unnecessarily suggestive and that the resulting identification was not reliable based on an examination of the totality of the circumstances. State v. Pottilt, supra, 162. “Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification .... United States v. Amrine, 724 F.2d 84, 87 (8th Cir. 1983); United States v. Hurt, 476 F.2d 1164, 1168 (D.C. Cir. 1973); State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986).” State v. Miller, 202 Conn. 463, 470-71, 522 A.2d 249 (1987). Since we conclude that the identification procedure was not unnecessarily suggestive, we will not gratuitously lengthen this opinion by considering the reliability of the resulting identification. The trial court did not err in denying the defendant’s motion to suppress J’s pretrial identification.

II

We now turn to the defendant’s evidentiary claim concerning A’s testimony. A testified at trial that, inter alia, she had seen the defendant at the Nutmeg Farms Store on the afternoon of March 11,1988, that he and his friends had made some “passes” at her, and that the defendant had ultimately followed her home. The defendant argues that the trial court erred in admitting into evidence A’s testimony concerning the “pass” allegedly made at her by the defendant, because it was irrelevant and highly prejudicial. We do not agree.

Initially, we note that only one portion of the defendant’s contact with A on March 11,1988, was referred to during testimony at trial as a “pass.” A stated at trial that she had walked to the Nutmeg Farms Store on the afternoon of March 11, 1988, and that the following had occurred: “And I noticed this guy, [the defendant], and his friends were making passes at me and trying to talk to me, asking me do I want to go out, this and that, this and that.” This incident that allegedly occurred while the defendant was putting gas in his car was the only incident that the defendant, in his statement of facts, associates with the term “pass.” Therefore, we limit our discussion of the defendant’s claim to this particular testimony.

“ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in determination of the issue. . . . ’ State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975), quoting Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 (1971).” State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).

The defendant’s verbal remarks and actions characterized by A as “passes” focused A’s attention on the defendant as well as on the car into which he was putting gas. It was in great part this incident that allowed A later to identify both the defendant and his car. Because A’s identifications were relevant to the case, “[a]ny evidence materially bolstering [her] identification^] . . . would necessarily be of importance. Robinson v. United States, 459 F.2d 847, 857 (D.C. Cir. [1972]); see State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 [1967].” State v. Brown, 169 Conn. 692, 701-702, 364 A.2d 186 (1975). A’s identifications of the defendant and his car were relevant for two reasons. First, A saw the defendant’s car parked by the woods the night that J was assaulted. The fact that his car was at the Nutmeg Farms Store in West Haven contradicted the defendant’s alibi defense, notice of which alleged that he was in New Haven at the time of the assault. Second, her ability later to recognize him as the man who earlier in the day had been putting gas in the car and earlier that evening had been driving the car, gave her reason to bring the defendant to J’s attention, and placed in context for the jury J’s identification of the defendant. Therefore, the trial court did not abuse its discretion in determining that the challenged testimony was relevant.

The defendant argues in the alternative that even if the testimony was relevant, the trial court should have excluded it because its prejudicial effect clearly outweighed its probative value. We have held that “[t]here are situations where the potential prejudicial effect of relevant evidence would suggest its exclusion. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. McCormick, Evidence (2d Ed.) § 185, pp. 439-40.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The defendant claims that the first of these dangers was realized by the admission into evidence of the defendant’s alleged “pass” at A, because the testimony had “a tendency to excite the passions or influence the judgment of the jury.” We do not agree.

Certainly, it is fanciful in this day and age to claim that flirtatious conversation, even if unnecessarily suggestive, is sufficient to inflame the passions of a jury. The incident testified to by A involved alleged verbal remarks made by the defendant and did not involve any physical contact or outrageous behavior that would have unduly aroused the jury’s emotions, hostility or sympathy. The trial court did not abuse its discretion in determining that the prejudicial effect of the challenged testimony did not require its exclusion. Accordingly, the trial court did not err in admitting into evidence testimony concerning the alleged pass made at A by the defendant.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .”

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually ...”

       This finding was subsequently reversed by the Second Circuit Court of Appeals. Chavis v. Henderson, 638 F.2d 534 (2d Cir. 1980), cert. denied, 454 U.S. 842, 102 S. Ct. 152, 70 L. Ed. 2d 125 (1981).

       The trial court made no specific findings with respect to “suggestiveness” and “reliability.” The defendant’s motion to suppress addressed improper police action, and the pretrial hearing on the motion was so limited. When the court denied the motion to suppress, it stated that there was no indication of “anything impermissibly suggestive on the part of [the] police in this matter.” Since we conclude for the first time in this case that the criteria traditionally applied in the due process context are applicable to the determination of the admissibility of evidence resulting from identification procedures conducted by a private individual, we will not refuse review of the defendant’s claim on the ground that it espouses a theory not raised below.

       The defendant makes the additional claim that the court should have excluded the testimony concerning J’s identification because the prejudicial effect of that testimony outweighed its probative value. The defendant argues that the nature of the identification procedure conducted by A caused J’s identification to be of little probative value. We have fully discussed the evidentiary impact of A’s actions. The defendant’s additional claim adds only the argument that the significance of the testimony renders it impermissibly prejudicial. We find no merit to this claim.

       The defendant’s claim, as briefed and as argued at trial, is not one involving the general rule against admissibility of prior misconduct evidence. See C. McCormick, Evidence (2d Ed. 1972) § 190.


author: Peters, C. J.

text:
    Packer Plastics, Inc. v. John Laundon
    (13837)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued January 4
    decision released February 27, 1990

      Rod W. Farrell, for the appellant (defendant).

      Lloyd L. Langhammer, for the appellee (plaintiff).
   Peters, C. J.

The sole question in this appeal is the allocation of the burden of proof when a defense of lack of personal jurisdiction is raised in an action to enforce a judgment rendered by the court of another state. The plaintiff, Packer Plastics, Inc., obtained a default judgment from the District Court of Douglas County, Kansas, against the defendant, John Laundon, and subsequently sought enforcement of the Kansas judgment in Connecticut. The trial court, Noren, J., rendered judgment in favor of the plaintiff on the ground that the defendant had failed to offer evidence that the Kansas judgment was invalid for lack of personal jurisdiction. The defendant appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We find no error.

The relevant facts are undisputed. The plaintiff initiated the original action in the District Court of Douglas County, Kansas, against “John Laundon, d/b/a Abbott’s of New England.” The plaintiff is a Kansas corporation, and the defendant, who serves as the president of the corporation doing business as Abbott’s of New England, is a Connecticut resident. When the defendant neither answered the complaint nor appeared to defend the action, the Kansas court rendered a default judgment in favor of the plaintiff in the amount of $31,096.11. The Kansas judgment recited that the defendant had personally been served with a summons, and that both jurisdiction and venue were proper.

The plaintiff subsequently commenced the present action to enforce the Kansas judgment. The defendant responded with a special defense challenging the Kansas judgment as void for lack of personal jurisdiction. At trial, neither the plaintiff nor the defendant offered any evidence on the issue of whether the Kansas court had personal jurisdiction over the defendant. The trial court, Noren, J., ruled that the burden of proving that the Kansas court lacked jurisdiction rested with the defendant, and found that the defendant had failed to present any evidence to sustain that burden. The court thus rendered judgment in favor of the plaintiff. The defendant filed a motion for a new trial, which the court, Hurley, J., denied.

The defendant contends in this appeal that the trial court erred by imposing on him the burden of demonstrating that the Kansas judgment was void for lack of personal jurisdiction. In support of this contention, he argues that our decision in Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 51-54, 459 A.2d 503 (1983), establishes that, once the defendant has raised a jurisdictional defense, the court cannot proceed unless the plaintiff proves the requisite minimum contacts necessary to support an exercise of jurisdiction over the defendant. The defendant thus maintains that the trial court should have refused to enforce the Kansas judgment because the plaintiff failed to introduce any evidence in response to his special defense challenging the Kansas court’s jurisdiction. We are not persuaded.

Standard Tallow Corporation v. Jowdy, supra, stands for the proposition that a plaintiff seeking to initiate an action in Connecticut bears the burden of proof on the issue of whether Connecticut courts may properly exercise personal jurisdiction over the defendant. Id., 53. In the present case, however, the defendant does not challenge the jurisdiction of the Connecticut courts, but instead contends that Connecticut should not enforce the Kansas judgment because the Kansas court lacked personal jurisdiction over him when it rendered the judgment. The difference is critical, because the validity of the Kansas judgment in Connecticut implicates the full faith and credit clause of the United States constitution.

Since the interpretation of the full faith and credit clause is a question of federal law, we are bound by the decisions of the Supreme Court of the United States concerning the criteria for application of the clause. Thomas v. Washington Gas Light Co., 448 U.S. 261, 271 n.15, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980) (plurality opinion); Sutton v. Leib, 342 U.S. 402, 406, 72 S. Ct. 398, 96 L. Ed. 448, reh. denied, 343 U.S. 921, 72 S. Ct. 674, 96 L. Ed. 1334 (1952). The United States Supreme Court has impliedly held that federal law under the full faith and credit clause governs the determination of the proper placement of the burden of proof. See Cook v. Cook, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146 (1951) (reversing a judgment of the Supreme Court of Vermont on the basis of an incorrect placement of the burden of proof under the full faith and credit clause).

As a matter of federal law, the full faith and credit clause requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it. Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 704, 102 S. Ct. 1357, 71 L. Ed. 2d 558 (1982). This rule includes the proposition that lack of jurisdiction renders a foreign judgment void. Id., 704-705; see Nevada v. Hall, 440 U.S. 410, 421, 99 S. Ct. 1182, 59 L. Ed. 2d 416, reh. denied, 441 U.S. 917, 99 S. Ct. 2018, 60 L. Ed. 2d 389 (1979); Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 469, 21 L. Ed. 897 (1874). A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction, unless the jurisdictional issue was fully litigated before the rendering court or the defending party waived the right to litigate the issue. Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., supra, 706; Sherrer v. Sherrer, 334 U.S. 343, 350-52, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948); Williams v. North Carolina, 325 U.S. 226, 229-30, 233, 65 S. Ct. 1092, 89 L. Ed. 1577, reh. denied, 325 U.S. 895, 65 S. Ct. 1560, 89 L. Ed. 2006 (1945); Morabito v. Wachsman, 191 Conn. 92, 96-99, 463 A.2d 593 (1983); 2 Restatement (Second), Judgments § 81, comment (a) (1982); 1 Restatement (Second), Conflict of Laws S 96 (1971).

The United States Supreme Court has consistently held, however, that the judgment of another state must be presumed valid, and the burden of proving a lack of jurisdiction “rests heavily upon the assailant.” Williams v. North Carolina, supra, 233-34; Sutton v. Leib, supra, 408; Cook v. Cook, supra, 128; Adam v. Saenger, 303 U.S. 59, 62, 58 S. Ct. 454, 82 L. Ed. 649, reh. denied, 303 U.S. 666, 58 S. Ct. 640, 82 L. Ed. 1123 (1938); Settlemier v. Sullivan, 97 U.S. 444, 448-49, 24 L. Ed. 1110 (1877). Furthermore, the party attacking the judgment bears the burden of proof regardless of whether the judgment at issue was rendered after a full trial on the merits or after an ex parte proceeding. See Williams v. North Carolina, supra, 230. Accordingly, we conclude that the trial court did not err in placing the burden of proving lack of personal jurisdiction on the defendant and in ruling that the defendant’s failure to present any evidence in support of his challenge to the Kansas court’s jurisdiction entitled the plaintiff to judgment in its favor.

There is no error.

In this opinion the other justices concurred.

       Abbott’s of New England is a trade name of Noank Shellfish, Inc.

       The Kansas District Court cited Kan. Stat. Ann. § 60-308 (b) (1) and (5) in support of its conclusion that the defendant had submitted to the jurisdiction of the court. Section 60-308 (1988 Sup.), Kansas’ long-arm statute, provides in pertinent part: “submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
      “(1) Transaction of any business within this state . . .
      “(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.”

       Although the amount of the Kansas judgment was $31,096.11, the complaint in this action claimed only $17,622.89, the amount still due on the judgment, plus interest and costs.

       The defendant has not challenged the trial court’s factual determination that he failed to present any evidence tending to show that the Kansas court lacked jurisdiction over him.

       Article four, § 1 of the constitution of the United States provides in pertinent part: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”