author: Covello, J.

text:
    Thelma Connelly et al. v. Housing Authority of the City of New Haven
    (13738)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued November 7, 1989
    decision released January 2, 1990

      Alice Bauer, with whom were Shelley E. White and, on the brief, JonAlander, for the appellants (plaintiffs).

      Frank Cochran, with whom was Edmund Winterbot-tom, for the appellee (defendant).

      ClarineNardi Riddle, attorney general, and Robert M. Langer and Stephen R. Park, assistant attorneys general, filed a brief for the state of Connecticut as ami-cus curiae.
   Covello, J.

This is an appeal from the decision of the trial court, DeMayo, J., which granted summary judgment in favor of the defendant housing authority of the city of New Haven (housing authority). The dis-positive issue is whether a municipal housing authority, acting as landlord, may be held liable for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We hold that the acts of municipal housing authorities are exempt from the operation of CUTPA and that the trial court did not err in granting summary judgment in favor of the defendant.

The relevant facts are undisputed. On December 10, 1981, six low income tenants of the Elm Haven Extension apartments (Elm Haven) filed a class action lawsuit on behalf of all the tenants of Elm Haven against the defendant, which owns and operates these federally subsidized low income apartments. The plaintiffs alleged that the defendant had violated state law by not providing adequate heat and hot water to its tenants due to faulty boilers, plumbing, pumps and heating systems in the apartment buildings. The plaintiffs alleged that as a result they had been subjected, during the period from November 1, 1981, through March 31, 1982, to various health risks arising from the defendant’s “continuing to rent out apartments to the plaintiffs which lack[ed] adequate and or stable heat and hot water” supplies.

The plaintiffs sought injunctive relief and damages in two counts. The first count alleged that the defendant’s failure to provide adequate heat and hot water to the Elm Haven tenants violated the obligations imposed upon landlords by General Statutes § 47a-7* ** and by the municipal housing code. The second count alleged that the defendant’s actions constituted unfair and deceptive trade practices in violation of CUTPA.

On December 22,1981, after a hearing on the plaintiffs’ motion for a temporary injunction, the trial court, Foti, J., issued an injunction enjoining the defendant from failing to make repairs to the Elm Haven heating systems, and ordering the defendant to make immediate repairs in order to restore adequate and uniform supplies of heat to the plaintiffs’ apartments. On February 10, 1982, the trial court denied the defendant’s motion to strike the second count of the complaint. The court rejected the defendant’s claim that, as a municipal housing authority, it was exempt from liability for its actions under CUTPA, and, in the alternative, that none of the acts and practices alleged in the complaint were unfair or deceptive within the meaning of CUTPA.

On November 13,1987, the defendant filed a motion for judgment on the pleadings, or in the alternative, for summary judgment, on the ground that CUTPA does not apply to the providing of essential services to tenants by municipal housing authorities. The trial court, DeMayo, J., granted the defendant’s motion for summary judgment on the ground alleged herein. The trial court held that municipal housing authorities are exempt from CUTPA under General Statutes § 42-110c and were excluded from CUTPA as they do not engage in trade or commerce within the meaning of the act. The court further held that under Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 510 A.2d 972 (1986), the defendant is not liable under CUTPA because municipal housing authorities are regulated under the Landlord and Tenant Act, General Statutes § 47a-l et seq., and because the Code of Federal Regulations is silent on whether municipal housing authorities’ transactions are the subject of Federal Trade Commission action. .

On April 3,1989, the plaintiffs filed this appeal with the Appellate Court. We thereafter transferred this appeal to ourselves pursuant to Practice Book § 4023.

The plaintiffs’ claims for damages in count two of their complaint fail because they are premised solely on CUTPA. Even if it is assumed, arguendo, that the defendant is engaged in “trade” or “commerce” as defined by that act, the defendant nonetheless is exempted from CUTPA scrutiny because, as a municipal housing authority regulated by the United States department of housing and urban development (HUD), its actions fall within the ambit of General Statutes § 42-llOc. Section 42-110c provides in relevant part: “exceptions, (a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States . . . . ”

In the present case, the “transactions or actions otherwise permitted under law” are the continued leasing or renting of subsidized apartments to low income tenants. In Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983), we ruled that the leasing or renting of apartment or dwelling units fell within the purview of CUTPA. See also Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 255, 258-59, 550 A.2d 1061 (1988); Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 648, 652-56, 546 A.2d 805 (1988). In the present case, however, the actions of the defendant, a creature of statute, are expressly authorized and pervasively regulated by both the state department of housing and HUD. As such, the plain language of § 42-110c exempts the leasing or renting of apartments by the defendant from CUTPA scrutiny. Clear and unequivocal statutes cannot be extended beyond their plain meaning. See General Statutes § 1-1 (a); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); State v. Pellegrino, 194 Conn. 279, 284, 480 A.2d 537 (1984); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231, 477 A.2d 988 (1984).

In Russell v. Dean Witter Reynolds, Inc., supra, we held that CUTPA was not applicable to the sale of securities because such transactions are: (1) explicitly subject to a different and specifically applicable statutory remedy; and (2) they were not among the types of transactions to which the Federal Trade Commission Act (FTC Act) has been applied. Id., 175-84.

The transactions of this defendant clearly fall within the rationale of Russell. The defendant is subject to pervasive state regulation pursuant to the provisions of chapter 128 of the General Statutes governing municipal housing projects; § 8-38 et seq.; and to pervasive federal regulation pursuant to the relevant provisions of the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq., and its implementing regulations in title 24 of the Code of Federal Regulations. The state statute and the federal regulations set forth in great detail the municipal landlord’s responsibilities and provide carefully balanced procedural and substantive remedies for public housing tenants in a variety of situations. These specific statutory remedies carefully balance the rights and obligations of municipal housing authorities and their tenants, and prescribe specific procedures designed to implement repair or rehabilitation of dwellings. None of these specific statutory provisions makes reference to CUTPA. The carefully crafted equilibrium between the competing interests of municipal housing authorities and public housing tenants embodied in title 8 and the HUD regulations would be upset by holding that a CUTPA remedy, lacking the procedural prerequisites and specifically tailored remedies of either § 8-38 et seq. or the federal regulations, applies in addition to those remedies.

Further, as we noted in Russell v. Dean Witter Reynolds, Inc., supra, 179-80, the history of the FTC Act is the lodestar for determining the scope of CUTPA. After a review of cases decided under the FTC Act over its seventy-five year history, and of the standards and statements of the FTC, we were unable to discover any instance in which that act has been applied to any act or practice of a local public agency, including a housing authority. We also failed to discover any instance in which the FTC Act has been applied to any landlord because of the breakdown of heat or hot water delivery systems. In FTC v. Colgate-Palmolive Co., 380 U.S. 374, 85 S. Ct. 1035, 13 L. Ed. 2d 904 (1965), the United States Supreme Court discussed the history and proper role of the FTC Act, and the issues approximating those pleaded in the present case are conspicuously absent. See Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 533-36, 539-40, 461 A.2d 1369 (1983). The trial court was correct when it determined that under the Russell rationale, CUTPA did not apply.

Summary judgment is appropriate when all the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). The test is whether a party would be entitled to a directed verdict on the same facts. State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988); Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

There is no material fact in dispute. Whether the defendant is subject to CUTPA is a question of law, not fact. See Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). By virtue of General Statutes § 42-110c, a municipal housing authority is exempted from liability under CUTPA when it leases subsidized rental units to low income tenants. We hold that, as a matter of law, the failure of the defendant to provide adequate and stable heat and hot water to tenants does not give rise to a claim for damages against it under CUTPA. Accordingly, the trial court did not err in granting summary judgment in favor of the defendant.

There is no error.

In this opinion the other justices concurred.

       The Elm Haven Extension apartments consist of six separate buildings, each eight stories in height, located at 120 Canal Street, 180 Canal Street, 185 Ashmun Street, 225 Ashmun Street, 250 Ashmun Street and 265 Ashmun Street. The buildings were constructed in 1954. They are presently vacant and scheduled for demolition.

       The housing authority of the city of New Haven is an independent public authority created pursuant to General Statutes § 8-40 to operate federally subsidized low income family housing projects. The housing authority receives money from the United States department of housing and urban development to subsidize the operation of the various housing units that it owns throughout the city, and is subject to both applicable state law and the provisions of the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq., and its implementing regulations in title 24 of the Code of Federal Regulations.

       The executive director of the housing authority, Samuel Franklin, testified before the trial court at the injunction hearing that the problems with the heat and hot water delivery system were long standing due to the age of the system and to endemic vandalism. The heat and hot water for the six buildings were generated at a central boiler room, which contained one inoperative and two operative boilers. Many of the components were original equipment in need of replacement. Franklin testified that regular repair work was performed by the housing authority maintenance staff, but that major renovations were paid for by special federal grants. He further testified that in 1981 the housing authority entered into two contracts for substantial renovation of the heat and hot water delivery systems at Elm Haven, including replacing worn pumps and relining one boiler.
      Franklin further testified that on November 13,1981, before work under the renovation commenced, the main boilers broke down and left the entire project without heat and hot water for two days. On December 10, 1981, this action was commenced. Repairs to the heat and hot water system, once begun, were completed by March 31, 1982.

       General Statutes § 47a-7 provides: “landlord’s responsibilities, (a) A landlord shall: (1) comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which ineludes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection.
      “(b) If any provision of any municipal ordinance, building code or fire code requires a greater duty of the landlord than is imposed under subsection (a) of this section, then such provision of such ordinance or code shall take precedence over the provision requiring such lesser duty in said subsection.
      “(c) The landlord and tenant of a single-family residence may agree in writing that the tenant perform the landlord’s duties specified in subdivisions (5) and (6) of subsection (a) and also specified repairs, maintenance tasks, alterations, or remodeling, provided the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord.
      “(d) The landlord and tenant of a dwelling unit other than a single-family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling if (X) the agreement of the parties is entered into in good faith; (2) the agreement is in writing; (3) the work is not necessary to cure noncompliance with subdivisions (X) and (2) of subsection (a) of this section; and (4) the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.”

       The code of the city of New Haven provides in pertinent part: “Code of the City of New Haven, vol. Ill, Title V, Par. 300. Basic facilities for dwelling units. No person shall occupy as owner-occupant or let to another for occupancy any dwelling or dwelling unit, for the purpose of living, sleeping, cooking, or eating therein, which does not comply with the following requirements:
      * * *
      “(e) Water heat facilities. The water-heating facilities necessary to provide the hot water required under sub-paragraph (a), (b) and (c) of this paragraph and paragraphs 405 and 4X2 shall be properly installed and connected to the hot water lines required under those sections, shall be maintained in safe and good working conditions, and shall be capable of heating water to such a temperature as to permit an adequate amount of water to be drawn at every required kitchen sink, lavatory basin, bathtub or shower at a temperature of not less than one hundred and twenty (X20) degrees Fahrenheit. Such supplied water-heating facilities shall be capable of meeting the requirements of this subsection when the dwelling, dwelling unit, rooming house, or rooming unit heating facilities required under the provisions of paragraph 400 and subparagraph (e) of paragraph 30X are not in operation.”
      “Code of the City of New Haven, Vol. Ill, Title V, Par. 30X. Light, heat, ventilation facilities; owner or lessor must furnish in living premises. No person shall occupy as owner-occupant or let to another for occupancy any dwelling or dwelling units, for the purpose of living therein, which does not comply with the following requirements:
      * * *
      “(e) Heating facilities. Every dwelling or dwelling unit shall be supplied with heating facilities which are properly installed, are maintained in safe and good working condition, and are capable of safely and adequately heating all habitable rooms, bathrooms and water closet compartments located therein to a temperature of at least sixty-eight degrees (68) Fahrenheit at a distance three (3) feet above floor level when outdoor temperature is ten degrees (10) Fahrenheit. Either central or space heating facilities may be used but must meet the following requirements:
      “(1) Central heating, central hot water facilities. Every heating unit and/or central hot water heating unit shall:
      “(A) Have every heat duct, steam pipe and/or hot water pipe free of leaks and functioning properly to provide an adequate amount of heat and/or hot water to the intended place or delivery;
      “(B) Be provided with seals between sections of hot air furnaces to prevent the escape of noxious gases into heat ducts;
      “(C) If employing electricity, be connected to an electric circuit of adequate capacity in an approved manner; and
      “(D) Be provided with automatic or safety devices and be installed and operated in the manner required by the statutes, ordinances and regulations of the State of Connecticut and the city. . . .”

       General Statutes § 42-110c provides: “exceptions, (a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States; or (2) acts done by the publisher, owner, agent or employee of a newspaper, periodical or radio or television station in the publication or dissemination of an advertisement, where the publisher, owner, agent or employee did not have knowledge of the false, misleading, unfair or deceptive character of the advertisement, and did not have direct financial interest in the sale or distribution of the advertised product or service.
      “(b) The burden of proving exemption, as provided in this section, from the provisions of this chapter shall be upon the person claiming the exemption.”

       The plaintiffs argue that continued occupation of their apartments without reasonable supplies of heat and hot water is action not “otherwise permitted,” citing federal regulations requiring the inclusion of heat and hot water in public housing leases. Those regulations, however, do not require the apartments to be vacated while renovations are performed, and it is not claimed that the defendant intentionally deprived the plaintiffs of heat or hot water.

       See, e.g., General Statutes § 8-43, which authorizes the removal of housing authority commissioners for inefficiency, neglect of duty or misconduct; § 8-44a, which discusses programs for rehabilitation and repair of housing projects; § 8-45, which provides for rentals and tenant selection in low rental projects and fixes maximum income limit, and prohibits disqualification of applicants on the ground that the household contains illegitimate children; § 8-45a, which prohibits a housing authority from refusing to rent accommodations to otherwise qualified applicants on the ground the applicant has a prior criminal record; § 8-48, which provides for rentals to persons receiving welfare aid; § 8-51, which renders each housing project subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which each project is situated; § 8-56, which empowers a housing authority to borrow state and federal funds in order to construct, maintain or operate a housing project; § 8-60 (c), which provides for the installation of streets, roads and sidewalks in housing projects; § 8-60 (e), which discusses the provision of essential services to housing projects; § 8-60 (Q, which provides for the repair, closing or demolition of unsafe or unfit dwellings; § 8-67, which provides a specific remedy for injury suffered on housing authority property; § 8-68d, which requires each housing authority to submit an annual report to the commissioner of housing; and § 8-68e, which authorizes the provision of financial assistance to housing authorities for the rehabilitation of uninhabitable dwelling units.
      Similarly, the relevant provisions of the federal Housing Act of 1937, 42 U.S.C. § 1437 et seq., authorize making available financial assistance to public housing agencies in order to improve the physical condition of public housing projects and to upgrade the management and operation of these projects, and authorize the agencies to issue such regulations as are necessary to carry out the purposes of the act. See, e.g., 42 U.S.C. § 1437l; see also 42 U.S.C. § 1408, which authorizes the United States Housing Authority to make, amend and rescind such rules and regulations as may be necessary to carry out the provisions of the Housing Act of 1937.
      Title 24 of the Code of Federal Regulations contains the myriad HUD regulations governing the operation and management of public housing projects by municipal housing authorities. The regulations provide specific procedures and remedies too numerous to be listed here in their entirety. See 24 C.F.R. § 850.101 et seq., § 881.101 et seq., § 882.101 et seq., § 883.101 et seq., § 892.101 et seq. In brief, the applicable regulations establish housing quality standards and establish the responsibilities of housing authorities to maintain dwellings in a safe and sanitary condition and timely to repair or rehabilitate those dwellings that do not comply with the established standards. The regulations establish specific standards and guidelines for the maintenance, operation and inspection of housing projects. They also provide a federal housing-preference in favor of tenants involuntarily displaced due to the condition of their dwelling units.

       The plaintiffs cite two cases as examples of FTC jurisdiction over landlord and tenant matters: FTC v. Century 21 Commodore Plaza, Inc., Trade Reg. Rep. (CCH) H 21,709 (June 9,1980); FTC v. MacLeod Mobile Homes, Inc., Trade Reg. Rep. (CCH) ¶ 21,397 (July 25,1979). The cases are inapposite, however, because they involve “tying” arrangements between leases and sales, and do not involve adjudications on the merits. Also, neither case involves the maintenance of essential services by a public housing agency. See also In the Matter of Century 21 Commodore Plaza, Inc., 95 F.T.C. 808 (June 9,1980); In the Matter of MacLeod Mobile Homes, Inc., 94 F.T.C. 144 (July 25, 1979).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services
    (13760)
    Peters, C. J., Healey, Callahan, Glass and Santaniello, Js.
    Argued October 31, 1989
    decision released January 2, 1990

      Daniel Shepro, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Peters, C. J.

The sole issue in this tax appeal is whether the plaintiff Plastic Tooling Aids Laboratory, Inc. (taxpayer), has established that its design computer qualifies for an exemption as “machinery used directly in a manufacturing . . . process” in accordance with General Statutes § 12-412 (34). After a determination by the defendant commissioner of revenue services (commissioner) that the taxpayer was liable for a deficiency assessment, the taxpayer appealed to the trial court pursuant to General Statutes § 12-422. The trial court concluded that the commissioner should prevail. We transferred the taxpayer’s appeal from this adverse judgment to the Supreme Court in accordance with Practice Book § 4023. We find no error.

The facts are undisputed. The taxpayer uses a milling machine to produce aluminum and steel injection molds according to predetermined specifications. To assist in this process, the taxpayer in 1982 bought a computer known as a CAD/CAM, which stands for “computer aided design/computer aided manufacturing.” The CAD/CAM translates information from blueprints into numeric design specifications that, at the time relevant to this assessment, were encoded on a paper tape. Upon its completion, the tape was physically removed from the CAD/CAM and inserted into a milling machine. While previously a personal operator had controlled the milling machine’s preparation of a mold, the tape produced by the CAD/CAM gave the milling machine the necessary instructions without further human intervention.

The taxpayer’s purchase of the CAD/CAM would obligate it to pay a Connecticut sales and use tax, General Statutes § 12-411, unless this transaction qualifies for a statutory exemption under General Statutes § 12-412. Subsection 12-412 (34) specifically exempts “[sjalesof . . . machinery used directly in a manufacturing . . . process” but not sales of “office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.” Departmental regulations define both “manufacturing” and “manufacturing production process.”

The trial court determined that the applicability of the § 12-412 exemption to the taxpayer’s CAD/CAM purchase had raised a question that was not free from ambiguity, and that the taxpayer bore the burden of persuasion on resolving this ambiguity so as to establish its right to claim the exemption. From this vantage point, the court concluded that the CAD/CAM was “data processing equipment [which functioned as] numerically controlled machinery,” but that the taxpayer had not shown that the equipment was “used directly in the manufacturing process.” Accordingly, the court ruled that judgment should enter for the commissioner in an amount to which the parties had previously stipulated.

On appeal, the taxpayer maintains that the trial court erred in interpreting § 12-412 (34) to conclude that the CAD/CAM was (1) not “used directly in the manufacturing process,” and (2) taxable data processing equipment rather than “equipment or devices used ... to control, regulate or operate the machinery.” In this case, there is no functional distinction between these two claims of error. Even if the taxpayer were correct that the CAD/CAM should properly have been denominated as machinery rather than as data processing equipment, the taxpayer’s claim for an exemption would still have to satisfy the overarching requirement of § 12-412 (34) that the machinery was “used directly in a manufacturing . . . process.” Because the sole link between the CAD/CAM and the milling machine consisted of its production of a physically discrete imprinted tape, the issue is whether the taxpayer’s CAD/CAM was “used directly” in the taxpayer’s manufacturing process. For this taxpayer, that issue is the same however the CAD/CAM is characterized.

We begin our discussion of this issue by noting the principles of statutory construction that govern the availability of a tax exemption. First, statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption. Stop ’N Save, Inc. v. Department of Revenue Services, 212 Conn. 454, 462, 562 A.2d 512 (1989); Harper v. Tax Commissioner, 199 Conn. 133, 142, 506 A.2d 93 (1986); The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 8-9, 490 A.2d 991 (1985).

Applying these principles in this case, we conclude that the trial court was not clearly erroneous in determining, as a mixed question of fact and law, that the taxpayer’s CAD/CAM was not “used directly in a manufacturing process.” The CAD/CAM’s end product, at the time of this litigation, was an encoded paper tape. The CAD/CAM had no direct link, electronic or otherwise, with the taxpayer’s milling machine and did not directly transform the raw material that the milling machine made into injection molds. Once the milling machine received the encoded tape containing instructions from the CAD/CAM, a separate unit, known as a DAC interface control, was required to convey these instructions electronically to the milling machine for operational purposes.

Although the taxpayer does not dispute the accuracy of this factual recitation, it contends that anything that affects the process of the production line as a whole can come within the category of “used directly in a manufacturing process.” The taxpayer maintains that it was not required to show that the CAD/CAM directly affected the raw material that its milling machine would ultimately manufacture into molds. Comparing the regulation for tax exemptions for tools with that governing tax exemptions for machinery, it notes that only tools are expressly required to be used “in the operation of machines for the purpose of producing a direct effect upon the product being manufactured” (emphasis added); Regs., Conn. State Agencies § 12-426-11b (a) (13); while machinery may be used in a “manufacturing production process” in any “one of a series of production activities.’,’ Regs., Conn. State Agencies § 12-426-11b (a) (11). The taxpayer reminds us that this court, in United Aircraft Corporation v. Connelly, 145 Conn. 176, 186, 140 A.2d 486 (1958), held that X-ray films, testing chemicals, oil and gasoline qualified for the exemption contained in an earlier sales tax statute, General Statutes (Cum. Sup. 1955) § 1167d, for “personal property . . . used directly . . . in the process of the manufacture of tangible personal property to be sold,” even though the plant manufactured and sold airplanes. Thereafter, in Ziperstein v. Tax Commissioner, 178 Conn. 493, 496, 423 A.2d 129 (1979), we held that electricity used in the process of manufacturing ice milk was used and consumed “ ‘directly ... in an industrial plant in the actual fabrication of the finished product to be sold.’ ” (Emphasis in original.) Id., quoting General Statutes (Rev. to 1977) § 12-412 (r). We find these arguments unpersuasive both as a matter of fact and as a matter of law.

As a factual matter, on the present record the trial court was entitled to find that the absence of any direct linkage between the CAD/CAM and the milling machine served to defeat the taxpayer’s claim to the statutory exemption. The production of encoded tape could reasonably be found to be akin to the production of blueprints or other design documents, all of which are preliminary to the manufacturing process, rather than “used directly” therein.

As a legal matter, the taxpayer’s argument overlooks the regulatory changes that have, since 1980, imposed additional limitations upon the exemption provided in § 12-412 (34). In Connecticut Water Co. v. Barboto, 206 Conn. 337, 343, 537 A.2d 490 (1988), we concluded that the regulation presently defining “manufacturing”; Regs., Conn. State Agencies § 12-426-11b (a) (10); validly requires a taxpayer claiming an exemption for machinery “used directly in a manufacturing . . . process” to prove a direct connection with a process that results in the substantial transformation of the “ ‘form, composition or character’ ” of personal property. Id., 343 n.6. This circumscribed regulatory definition of “manufacturing” narrows the scope of the statutory exemption for machinery “used directly in a manufacturing . . . process” to one that is less inclusive than it was when United Aircraft Corporation and Ziperstein were decided. Id. The regulatory definition of “manufacturing” also limits the scope of “manufacturing production process” in § 12-426-11b (a) (11) of the Regulations of Connecticut State Agencies. Read conjointly, these regulations make the statutory exemption available only upon a showing that the machinery at issue is used in “one of a series of production activities” that results in a substantial change in the “form, composition or character” of personal property. So construed, the regulations governing the exemption for machinery are not, in principle, inconsistent with the regulation defining the exemption for tools. In both cases, the statutory exemption turns upon effecting a change in the product being manufactured.

We therefore agree with the trial court’s conclusion, insofar as it was based on a construction of the applicable statute and regulations, that the taxpayer has failed to prove that its CAD/CAM was “used directly in a manufacturing process.”

There is no error.

In this opinion the other justices concurred.

       General Statutes § 12-412 (34) provides: “exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items ....
      “(34) Machinery used in manufacturing or agricultural production. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”

       Section 12-426-llb (a) (10) of the Regulations of Connecticut State Agencies provides: “ ‘Manufacturing’ shall mean the performance as a business of an integrated series of operations which places personal property in a form, composition or character different from that in which it was acquired for sale in the regular course of business by the manufacturer. The change in form, composition or character must be a substantial change, and it must result in a transformation of property into a different product having a distinctive name, nature and use. Operations such as compounding or fabricating are illustrative of the types of operation which may result in such a change. ‘Manufacturing’ is an activity which shall occur solely at an industrial plant.”
      Section 12-426-llb (a) (11) of the Regulations of Connecticut State Agencies provides: “ ‘Manufacturing production process’ shall mean one of a series of production activities, beginning with the movement of the raw materials after their receipt, inspection and storage, to the first production machine and ending with the completion of the finished product, including any packaging operations, for its sale to the ultimate consumer. ‘Manufacturing production process’ shall not include any activities prior to the first production stage (such as collecting, weighing and storing raw materials) or any activities following the last production stage (such as casing, loading or delivering to the consumer). ‘Manufacturing production process’ shall occur solely at. an industrial plant.”

       Other courts have held that computers were not used directly in manufacturing when they produced: photographs for customer approval prior to production; Rhode Island Lithograph Corporation v. Clark, 519 A.2d 589, 591 (R.I.1987); software resulting in the production of magnetic tapes; Interactive Information Systems, Inc. v. Limbach, 18 Ohio St. 3d 309, 311, 480 N.E.2d 1124 (1985); production schedules for the manufacturing process; W. N. Dambach, Inc. v. Commonwealth of Pennsylvania, 488 A.2d 96, 98-99 (Commw. Ct. 1985); compilations of plant information and instructions; Commonwealth v. Kuhlman Corporation, 564 S.W.2d 14, 16 (Ky. 1978); and magnetic tapes containing customer and payroll information. Wesleyan University Press, Inc. v. Donahue, 8 Ohio St. 2d 4, 5, 221 N.E.2d 590 (1966). Although each of these cases interprets statutes that differ in some particulars from our own, they confirm the significance of a distinction between ancillary functions that facilitate the operation of an industrial plant and the transformation of personal property that constitutes the manufacturing process.

       The taxpayer has not challenged the validity of the regulations promulgated to clarify the exemptions provided by General Statutes § 12-412. Connecticut Water Co. v. Barbato, 206 Conn. 337, 344, 537 A.2d 490 (1988); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 600, 522 A.2d 771 (1987).

       Furthermore, at oral argument, the taxpayer conceded that the statutory exemption construed in United Aircraft Corporation v. Connelly, 145 Conn. 176, 140 A.2d 486 (1958), arose under a different sales and use tax than the one presently in effect.


author: Shea, J.

text:
    Linda DiBerardino v. Mario DiBerardino
    (13717)
    Peteks, C. J., Shea, Callahan, Glass, and Santaniello, Js.
    Argued November 7, 1989
    decision released January 2, 1990

      Jeffrey D. Mickelson, for the appellant (defendant).

      Patricia Pac, assistant attorney general, with whom were Joseph X. Dumond, Jr., assistant attorney general, and, on the brief, Clarine Nardi Riddle, attorney general, and Robert Statchen, assistant attorney general, for the appellee (state).
   Shea, J.

The marriage between the plaintiff, Linda DiBerardino, and the defendant, Mario DiBerardino, was dissolved on April 14, 1983, by the judgment of a state trial referee, Hon. Simon S. Cohen, exercising the powers of the Superior Court. Pursuant to the dissolution, the plaintiff was awarded custody of the couple’s two children and the defendant was ordered to make periodic payments toward the children’s support. On March 30, 1988, the state, on behalf of the plaintiff, filed a motion to modify support, alleging that the plaintiff was a recipient of “IV-D” services and requesting an increase in the amount of the support payments being made by the defendant. The defendant subsequently filed his own motion to modify support, seeking a reduction in the amount of his required payments. After these motions had been referred by the court, Freed, J., evidence in support of both motions was heard by Katherine Y. Hutchinson, a family support magistrate, whose findings of fact and recommendation for an increase in the amount of the defendant’s support payments were approved by the court, Kline, J., on January 12,1989. The defendant appealed to the Appellate Court and we transferred the case to our docket pursuant to Practice Book § 4023.

In his appeal, the defendant makes a wholesale constitutional attack on the validity of General Statutes § 46b-231 (m) (4), a portion of the Family Support Magistrate’s Act, General Statutes § 46b-231 et seq., and also takes issue with the legal and factual basis of the order increasing the amount of his support payments. We find no error.

I

The defendant makes three separate constitutional arguments challenging the validity of the Family Support Magistrate’s Act. The defendant asserts that § 46b-231 (m) (4): (1) violates the equal protection guarantees contained in article first, § 20 of the Connecticut constitution and the fourteenth amendment to the United States constitution, by making an irrational distinction between the child support modification procedures followed in IV-D and non IY-D cases; (2) violates the judicial selection provisions of article fifth, § 2 of the Connecticut constitution, since motions for modification of child support orders in IV-D cases are “decided” by a family support magistrate; and (3) for the same reason, constitutes an infringement upon the power of the judiciary, in violation of article second and article fifth, § 1 of the Connecticut constitution and article III, § 1 of the United States constitution. We decline to review the defendant’s equal protection claim and conclude that the statutory procedure followed in this case did not violate any provision of our state constitution. There is no valid federal constitutional claim raised, however, since article III, § 1 is inapplicable to state courts.

The defendant’s constitutional claims were neither presented to nor considered by either the family support magistrate or the trial court. “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185. We would ordinarily, therefore, decline to address any of the defendant’s various constitutional arguments. Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983); Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 377, 439 A.2d 396 (1981). “A recognized exception to this rule[, however,] is that a challenge to the jurisdiction of a court to render a judgment may be raised at any time, because the lack of subject matter jurisdiction cannot be waived. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974).” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415 (1986).

Of the three separate claims set forth in the defendant’s statement of the issues, only two, those addressing the appointment of judges and the power of the judiciary, bring into question “the authority of the adjudicative agency whose action was essential to rendition of the judgment.” Id. For this reason, we decline to address the equal protection portion of the defendant’s constitutional claims of error and turn our attention to the defendant’s arguments regarding judicial power and selection. Those claims are predicated upon the defendant’s assertion that the plaintiff’s motion for modification was heard and ruled upon in accordance with General Statutes § 46b-231 (m) (4). Our review of the record, however, leads us to conclude that the motion in question was heard and ruled upon pursuant to General Statutes § 46b-86 (c), since the matter was “referred to the family support magistrate division for a finding of fact and report to the court.” With the record in this posture we leave for another time a determination of the constitutionality of § 46b-231 (m) (4) when a family support magistrate exercises greater authority, and conclude, primarily on the basis of our prior holdings in Seal Audio, Inc. v. Bozak, Inc., supra, and Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979), that § 46b-86 (c) is not violative of our state constitution.

Before we address the merits of the defendant’s claims, it is appropriate for us to detail both the statutory scheme under consideration, as well as the specific proceedings before the family support magistrate and the trial court. The record and transcript in this case reveal that both the parties and the trial court were somewhat daunted by the intertwining nature of § 46b-231 (m) (4) of the Family Support Magistrate’s Act, and § 46b-86, entitled “Modification of alimony or support orders and judgments.” A thorough dissection of the various statutory provisions regarding modification of child support orders reveals that there existed, at the time the parties’ motions were considered, three distinct procedures for hearing such motions. The particular procedure to be followed was dependent upon the status of the parties and the nature of the original support order.

First, § 46b-86 (a)* ***** provides that, unless modification is otherwise precluded, any final order for the payment of child support may be “altered or modified by said court upon a showing of a substantial change in the circumstances of either party.” (Emphasis added.) Second, § 46b-86 (c) provides that when one of the parties is receiving or has received aid from the state, as provided in title IV-A or IV-E of the Social Security Act, or has “applied” for IV-D services, a motion for modification of support payments “shall be referred to the family support magistrate division for a finding offact and report to the court.” (Emphasis added.) Finally, § 46b-231 (m) (4) provides that motions for modification of support orders “entered by the superior court in IV-D cases shall be brought in the family support magistrate division and decided by a family support magistrate.” (Emphasis added.) Thus, in order to determine which procedure should be utilized in a particular case, the following relevant inquiries must be made: (1) whether the original support order was entered by the Superior Court in a IV-D case; and (2) whether either of the parties to the original order has received or applied for services as provided in § 46b-86 (c).

The record shows that the original support order in this case was entered on April 14,1983, and was modified on June 23,1983, by the Superior Court, Daly, J., to allow a reduction in the defendant’s support payments while the children stayed with him during the summer. From these facts, we conclude that the original support order was certainly not entered in a IV-D case, since the Family Support Magistrate’s Act did not come into existence until the enactment of No. 86-359 of the 1986 Public Acts. In answer to the second question posed above, it is undisputed that the plaintiff applied for and subsequently received services provided by the Connecticut child support enforcement bureau. See General Statutes § 17-31i (h). Thus, because § 46b-86 (c) is applicable and § 46b-231 (m) (4) is not, the motions of both parties for modification should have been brought in the Superior Court and referred to a family support magistrate “for a finding of fact and report to the court.” General Statutes § 46b-86 (c). Our task now is to determine whether this procedure was indeed followed in this case.

The record reveals that the plaintiff’s motion was originally directed to the family support magistrate session of the judicial district of Hartford-New Britain, and, in accordance with Practice Book § 479A,* was captioned as a family support magistrate matter. On April 26, 1988, a hearing was held by the Superior Court, Freed, J., because of a potential conflict between the defendant’s counsel and the family support magistrate who was to have conducted the hearing on the plaintiff’s motion. At this hearing, the plaintiff received a copy of the defendant’s motion for modification and requested that her motion for modification be referred to a different magistrate, pursuant to § 46b-231 (m) (4). The transcript of this hearing reveals, however, that the referral to the magistrate was intended to be for factfinding and a report to the court, the procedure set forth in § 46b-86 (c). The defendant’s motion for modification was kept on the calender in the Superior Court, although it too was later brought before the family support magistrate when the plaintiff’s motion was heard.

Hearings on both motions were conducted before magistrate Hutchinson on July 12, August 22, and September 29,1988. At the conclusion of the presentation of testimony, the magistrate made it clear that “this being a modification of a Connecticut dissolution action, I have to do a finding of fact and report, which will contain a recommendation that goes to the Superior Court judge . . . .” The magistrate’s report, entitled “FAMILY SUPPORT MAGISTRATE’S FINDING OF FACT AND REPORT PURSUANT TO CGS SEC. 46B-86 (c) . . . ,” recommended that the plaintiffs motion be granted and that the defendant’s motion be denied. After this report was filed in the Superior Court, the defendant, “pursuant to Conn. Gen. Stat. 46b-231 (n) (2) and Practice Book Section 4009,” moved for reargument and/or a rehearing before the family support magistrate. The plaintiff opposed this motion, arguing that since the magistrate had the duty to find facts and make a report to the court, the defendant’s proper course of action was to file objections to the report of the magistrate. See Practice Book §§ 428 through 445.

Having heard argument by both parties, the Superior Court, Kline, J., denied the motion for reargument and approved the findings made by the magistrate. The court then informed the defendant: “You can take an appeal from the decision to approve the findings, or you can make your motion for a rehearing, in accordance with the statute, based upon the decision of the Court.” Thereafter, the defendant, relying upon § 46b-231 (n) (l), filed an appeal to the Superior Court as well as a motion to reargue. The plaintiff filed an objection, claiming that the defendant’s proper rem-. edy was an appeal to the Appellate rather than the Superior Court. Thereafter, Judge Kline heard argument by the defendant in support of his contention that § 46b-231 (n) allowed him to appeal the decision of the magistrate to the Superior Court. The court denied the defendant’s motion to reargue, concluding that “the Appellate Court [could] worry about how to interpret all these various sections of the statute. There’s a lot of confusion.”

On the basis of this record, we conclude that the defendant lacks standing to challenge the constitutionality of § 46b-231 (m) (4) of the Family Support Magistrate’s Act since the decision modifying the amount of his support payments was neither heard nor determined pursuant to that particular statute. “According to well-established principles, a [party] who challenges the constitutionality of a statute must prove that the statute has adversely affected a constitutionally protected right ‘under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.’ Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966). . . Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981). “ ‘[J]udicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.’ Poe v. Ullman, [367 U.S. 497, 504, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961)] . . . .” State v. Madera, 198 Conn. 92, 106, 503 A.2d 136 (1985). In this case, we conclude that the motions to modify the defendant’s support payments were heard and decided on the basis of the procedure set forth in § 46b-86 (c), and that the defendant, therefore, has not proved any adverse effect imposed upon him by the operation of § 46b-231 (m) (4) of the Family Support Magistrate’s Act.

Assuming, in the alternative, that the defendant’s constitutional arguments are applicable to the procedure under § 46b-86 (c), which was actually followed in this case, we conclude that those arguments are without merit. In Seal Audio, Inc. v. Bozak, Inc., supra, 501, we concluded that attorney referees, charged with the duty of finding facts and rendering a report to a judge of the Superior Court, were not judges of the Supreme or Superior Court, and therefore need not be appointed in accordance with the provisions of article fifth, § 2 of our state constitution. As applied to the facts of this case, we conclude that that holding is dispositive of the defendant’s claim, since the magistrate here performed duties identical to those performed by the attorney referee in Seal Audio, Inc.

Finally, the defendant claims that the duties performed by the family support magistrate were an unconstitutional intrusion upon the independent power of the judiciary. Applying our conclusion that the magistrate in this case was performing duties identical to those of an attorney referee, we note that “[t]he state referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts. On the contrary, as we noted in Florida Hill Road Corporation [v. Commissioner, 164 Conn. 360, 367, 321 A.2d 856 (1973)], state referees ‘serve the very practical purpose of relieving the court’s crowded dockets.’ ” Monroe v. Monroe, supra, 180; Seal Audio, Inc. v. Bozak, Inc., supra. To be unconstitutional in the context of the separation of powers provided for in article second of our state constitution, “a statute must not only deal with subject-matter which is within the judicial power, but it must operate in an area which lies exclusively under the control of the courts.” State v. Clemente, 166 Conn. 501, 510-11, 353 A.2d 723 (1974). On the facts of this case, we accordingly find no merit to the defendant’s separation of powers challenge to the actions of the family support magistrate.

II

Regarding the merits of the modification order, the defendant first argues that he is entitled to a reversal of the trial court’s approval of the findings and recommendations of the family support magistrate since those findings and recommendations were reached by utilization of an improper legal standard. The magistrate found that there had been “a substantial change of circumstances of the parties since the child support order was entered.” The defendant’s claim is predicated upon the fact that the magistrate failed to conclude explicitly that this substantial change had been uncontemplated at the time of the entry of the original support order. See Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976).

“The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.” Brook-field v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986). In the absence of a motion for articulation; see Practice Book § 4051; “it would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard.” State v. Crumpton, 202 Conn. 224, 232, 520 A.2d 226 (1987). Since there was ample evidence from which the magistrate could have concluded that the substantial change she found in the circumstances of the parties was uncontemplated at the time of the dissolution decree, we presume that the trial court applied the correct legal standard and conclude that the defendant has not met his burden of proving harmful error.

The report of the family support magistrate, as adopted by the trial court, recommended that the defendant’s support payments be increased from $62.50 per child per week to $115 per child per week, and that the defendant pay the expenses of a “tutor and/or a special reading program” for his son, not to exceed $1000 per year. The factual findings of the magistrate indicate that subsequent to the 1983 dissolution order: (1) the defendant’s financial situation had improved from a weekly deficit of $102 to a weekly deficit of $64; (2) the defendant’s expenses included “one-half of the mortgage payments and taxes on a home owned by his present wife and one-half of the taxes on a house owned by the defendant and his brother[,]” the defendant’s share of which he estimated to be worth $115,000; (3) the needs of the children could not be met with the plaintiff’s disposable income combined with the original support payments; and (4) the defendant’s son had a reading disability that could be “addressed with the help of a tutor and/or a special reading program.” With this evidence before the family support magistrate, we conclude that the trial court could reasonably have found that the changes noted were uncontemplated at the time of the 1983 dissolution order. See Kelepecz v. Kelepecz, 187 Conn. 537, 538-40, 447 A.2d 8 (1982); Benson v. Benson, 187 Conn. 380, 383, 446 A.2d 796 (1982).

Finally, the defendant challenges the factual findings made by the family support magistrate, claiming that issues of credibility were ignored and that the evidence presented concerning his son’s reading disability was insufficient to justify the order requiring the defendant to contribute $1000 per year toward a remedial reading program. Our review of these claims “is limited to deciding whether the trial court has abused its legal discretion. As we have repeatedly noted, ‘trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.’ ” Hardisty v. Hardisty, 183 Conn. 253, 260, 439 A.2d 307 (1981), quoting Jacobsen v. Jacobsen, 177 Conn. 259, 262, 413 A.2d 854 (1979).

From our review of the report of the family support magistrate, we conclude that there is no merit to the defendant’s claim that the issue of credibility was ignored. The report carefully outlines the evidence presented in support of both parties’ motions for modification, and concludes, based on the evidence outlined above, that the needs of the children, coupled with the financial status of both parties, justified an increase in the amount of the defendant’s support payments. The trial court did not abuse its discretion in adopting the findings and recommendations of the family support magistrate regarding the increase in the defendant’s support payments.

We also conclude that the trial court did not abuse its discretion in adopting the magistrate’s recommendation that the defendant contribute to the cost of a remedial reading program for his son. Unlike the issue of the cost of private secondary education, which we addressed in Hardisty v. Hardisty, supra, in this case there was evidence presented to the family support magistrate that would constitute “a showing of special need or some other compelling justification, for increasing the support obligation of the noncustodial parent who genuinely doubts the value of the program that he is being asked to underwrite.” Id., 265. The magistrate heard evidence regarding the son’s reading disability, as well as the fact that the school system in which he was enrolled did not have a program that could adequately address his needs. Consequently, the magistrate concluded that the problem should “be addressed with the help of a tutor and/or a special reading program.” We conclude that the trial court did not abuse its discretion in adopting the magistrate’s recommendation that the defendant share in the cost of that program.

There is no error.

In this opinion the other justices concurred.

       As used throughout this opinion, the shorthand phrase IV-D refers to the statutory scheme set forth in 42 U.S.C. chapter 7 (“Social Security”), subchapter IV (“Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services”), part IV-D (“Child Support and Establishment of Paternity”).

       Article first, § 20 of our state constitution provides in part: “No person shall be denied the equal protection of the law.”
      The fourteenth amendment to the United States constitution provides in part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       Article fifth, § 2 of our state constitution provides: “The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly.”

       Article second of our state constitution provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”
      Article fifth, § 1 of our state constitution provides: “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”
      Article III, § 1 of the United States constitution provides in part: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

       As the defendant conceded at oral argument, while potentially persuasive as precedent, opinions of the United States Supreme Court interpreting the separation of powers provisions of the federal constitution are not binding on this court when we are called upon to interpret the corresponding provisions of our state constitution.

       General Statutes (Rev. to 1989) § 46b-231 (m) (4) provides: “Motions for modification of existing child and spousal support orders entered by the superior court in IV-D cases shall be brought in the family support magistrate division and decided by a family support magistrate. Family support magistrates, in deciding if a spousal or child-support order should be modified, shall make such determination based upon the criteria set forth in section 46b-84. A person who is aggrieved by a decision of a family support magistrate modifying a superior court order is entitled to appeal such decision in accordance with the provisions of subsection (n) of this section.”

       General Statutes (Rev. to 1989) § 46b-86 (c) provides: “When one of the parties, or a child of the parties, is receiving or has received aid or care from the state under its AFDC program as provided in Title IV-A of the Social Security Act or under its foster care program as provided in Title IV-E of the Social Security Act, or where one of the parties has applied for child support enforcement services under Title IV-D of the Social Security Act as provided in section 17-31i, such motion to modify shall be referred to the family support magistrate division for a finding of fact and report to the court.”

       General Statutes § 46b-86 (a) provides in 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.”

       General Statutes § 46b-231 (b) (15) provides: “ TV-D support cases’ are actions for child and spousal support under Title IV-D of the Social Security Act and include cases in which support rights have been assigned to the state in APDC cases and in foster care cases or cases in which a person has applied to the Connecticut child support enforcement bureau for child-support enforcement services.”

       We note that both General Statutes § 46b-86 (c) and § 46b-231 (m) (4) have been modified by No. 89-360 of the 1989 Public Acts, effective July 1, 1989. Section 46b-86 (c) now provides in part: “[SJuch motion to modify shall be filed with the family support magistrate division lor determination in accordance with subsection (m) of section 46b-231 . ”

      Section 46b-231 (m) (4) now provides in part: “Motions for modification of existing child and spousal support orders entered by the superior court in IV-D cases, including motions to modify existing child and spousal support orders entered in actions brought pursuant to chapter 815j, shall be brought in the family support magistrate division and decided by a family support magistrate, except that an order to modify existing child and spousal support orders entered in actions brought pursuant to chapter 815j shall be subject to the approval of a judge of the superior court and may be modified by such judge.”
      The constitutional implications, if any, of these modifications are not pertinent to our discussion of the defendant’s various constitutional claims.

       Practice Book § 479A provides:
      “(a) The procedure in any matter which is to be heard and determined by a family support magistrate shall conform, wherever applicable, to the procedure in and for the superior court except as otherwise provided herein.
      “(b) (1) Any pleading or motion filed in a family support magistrate matter shall indicate, in the lower right hand comer of the first page of the document, that it is a family support magistrate matter.

        “(2) Matters to be heard and determined by a family support magistrate shall be placed on the family support magistrate list.
      “(3) Matters on the family support magistrate list shall be assigned automatically by the family support magistrate clerk without the necessity of a written claim. No such matters shall be so assigned unless filed at least five days before the opening of court on the day the list is to be called.
      “(4) Matters upon the family support magistrate list shall not be continued except by order of a family support magistrate.”

       The trial court inquired why the plaintiffs action had been brought before a family support magistrate rather than the Superior Court. Upon being informed that the state could represent the plaintiff only before a family support magistrate, the trial court opined that, while the plaintiff maintained the right to choose her forum, the matter was “only going to come back up here eventually . . . .”

       General Statutes § 46b-231 (n) (1) provides: “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.”

       While we agree that the relevant statutory provisions are not models of clarity, a detailed analysis of them leads to the conclusion, as we have set forth earlier in this opinion, that there are three distinct and separate procedures which can be followed in the modification of support orders, depending upon the status of the parties and the original order. For instance, in this case an appeal to the Superior Court pursuant to General Statutes § 46b-231 (n) would have been wholly inappropriate since there was no “decision of a family support magistrate modifying a superior court order . . . .”

       The dissolution decree in this case was entered on April 14,1983, and was, therefore, unaffected by the subsequent amendment to General Statutes § 46b-86 (a), authorizing modification of support orders “whether or not [any] change of circumstances was contemplated at the time of dissolution.” See Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989).


author: Glass, J.

text:
    State of Connecticut v. Wilmer Paradise, Jr.
    (13279)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued November 8, 1989
    decision released January 2, 1990

      Martin Zeldis, assistant public defender, with whom were Carmine Giuliano and, on the brief, G. Douglas Nash, public defender, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and John Malone, assistant state’s attorney, for the appellee (state).
   Glass, J.

This case marks the third time that the state’s proceedings against Wilmer Paradise, in relation to the 1974 murder of Jay Cunningham, have resulted in an appeal before this court. As this court noted in the second appeal, State v. Ellis, 197 Conn. 436, 438-39, 497 A.2d 974 (1985), in May, 1974, the body of seventeen year old Jay Cunningham was found in a wooded area of Enfield. The chief medical examiner classified Cunningham’s death as a homicide resulting from multiple stab wounds. More than seven years later, in December, 1981, Wilmer Paradise and Brian Ellis were arrested and charged with the crimes of murder, General Statutes § 53a-54a, felony murder, General Statutes § 53a-54c, and kidnapping, General Statutes § 53a-92 (a) (2), in connection with Cunningham’s death. One month after their arrest, the defendants moved to dismiss the charges, claiming that their prosecution was barred by General Statutes (Rev. to 1975) § 54-193, which imposed a five year limitation on the prosecution of any crime for which “the punishment is or may be imprisonment in the Connecticut Correctional Institution, Somers.” On March 29,1982, the trial court granted the defendants’ motions and the state appealed. This court found no error. State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983) (Paradise I).

After the decision in Paradise I, the state, on April 11, 1983, rearrested Paradise and Ellis on charges of capital felony, General Statutes § 53a-54b (5).* Paradise and Ellis filed motions to dismiss, claiming, inter alia, that their prosecution was barred under the principles of res judicata. The trial court agreed and dismissed the indictments. The state appealed, and on September 10, 1985, this court held that the trial court had improperly applied the doctrine of res judicata and set aside the judgments of dismissal. State v. Ellis, supra, 478.

On October 25,1985, Paradise waived a preliminary hearing to determine probable cause in return for the state’s agreement not to seek the death penalty. He entered a plea of not guilty and demanded a trial by jury. On June 8,1987, the state filed a substitute information, again charging him with the crime of capital felony in violation of General Statutes § 53a-54b (5). The trial began on that date before a jury of twelve, presided over by the Honorable Thomas H. Corrigan. On July 2, 1987, the jury found Paradise guilty as charged, and on September 3,1987, he received a sentence of twenty-five years to life.

Paradise has now appealed to this court, arguing: (1) the dismissal of the charges initially brought against him on the grounds that they were barred by the statute of limitations renders his subsequent prosecution on a more severe charge for the same conduct viola-tive of the due process clauses of the United States and Connecticut constitutions; (2) a new trial is required as a result of the state’s misrepresentations concerning its sentencing recommendation for an accomplice witness, Brian Ellis; (3) the trial court erred in prohibiting him from inquiring into charges of misconduct leveled against a physician who testified as to the cause of the victim’s death; and (4) the trial court erred in failing to ascertain on the record whether he had made a knowing, voluntary and intelligent waiver of his right to testify on his own behalf. We find no error.

From the evidence revealed at trial the jury could reasonably have found the following facts. On the evening of May 14, 1974, the defendant, Ellis, and David Worthington were driving around in a van when the defendant suggested that they go looking for Jay Cunningham because Cunningham owed him between $6000 and $7000 as a result of a drug deal. The trio found Cunningham standing outside the Scitico Shopping Center in Enfield. The defendant told Ellis and Worthington that if Cunningham did not have his money that “we’re going to rough him up.” Ellis, who was driving, stopped the van, and the defendant and Worthington got out. The defendant asked Cunningham if he had the money. When Cunningham said “no,” the defendant and Worthington grabbed him by his left arm and pushed him into the van.

At the defendant’s direction, Ellis pulled the van onto a dirt road in Enfield, and came to a stop by a gravel bank. The defendant, Worthington and Cunningham got out of the van. Ellis stayed behind the wheel and watched as Worthington punched Cunningham in the face. Cunningham fell down and Worthington kicked him three times in his midsection. As Cunningham was struggling to get back to his feet, the defendant pulled a knife and stabbed him. Cunningham screamed and fell back down and the defendant stabbed him again. Ellis then exited the van and approached Cunningham. Both Ellis and Worthington wanted to leave quickly. The defendant, however, told them that if either left he would tell the police that that person had killed Cunningham. The defendant then gave the knife to Wor-thington and insisted that he stab Cunningham. Worthington complied. The defendant then handed the knife to Ellis and made a similar demand, and Ellis stabbed Cunningham in the right side. Cunningham’s body was found on May 31,1974, by a tobacco worker.

I

The defendant claims that the state’s bringing the charge of capital felony against him, after the initial charges of murder, felony murder and kidnapping were dismissed on statute of limitations grounds, violated his due process rights under the United States and Connecticut constitutions. In particular, the defendant asserts that the state’s bringing of the subsequent charge of capital felony constituted prosecutorial vindictiveness. We hold, however, that the defendant is precluded by the principles of res judicata, as enunciated in State v. Aillon, 189 Conn. 416, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983), from bringing a prosecutorial vindictiveness claim in this appeal.

The defendant in Aillon was charged with three murders. His first two trials on those charges had failed to result in the final judgment of either conviction or acquittal. Aillon claimed, for the second time, that a third trial would subject him to double jeopardy, in violation of the fifth amendment to the United States constitution. This court held, however, that the rejection, in State v. Aillon, 182 Conn. 124, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981), of his first claim of double jeopardy, after the second trial, was res judicata with respect to his second double jeopardy claim. State v. Aillon, supra, 189 Conn. 416, 420-23. The court noted: “Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), Judgments §§ 19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3. . . . Whether two claims in a criminal case are the same for the purposes of res judicata should therefore be considered ‘in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ ” State v. Aillon, supra, 189 Conn. 416, 423-25.

Therefore, the principal question that the court in State v. Aillon, supra, 189 Conn. 416, had to resolve was whether the defendant’s latter claim of double jeopardy was sufficiently similar to his earlier double jeopardy claim to warrant the court’s giving preclusive effect to the prior judgment. The court noted (pp. 426-27): “The defendant’s previous double jeopardy claim had as a factual basis the first trial judge’s improper contact with a juror. From that basis, the defendant argued unsuccessfully that the first trial was the functional equivalent of a mistrial, and that two successive mistrials barred reprosecution. The present claim relies on precisely the same facts, sought to be supplemented with evidence purporting to show the judge’s bad faith, to advance a legal argument only slightly different; i.e., that the judge’s misconduct foreclosed the defendant’s right to be judged by the first tribunal convened to judge him. This slight shift in evidentiary basis and substantive theory of law does not constitute a new claim. 1 Restatement (Second), Judgments § 25, comments b, d; accord Steele v. United States No. 2, 267 U.S. 505, 507, 45 S. Ct. 417, 69 L. Ed. 761 (1924). That identical grounds for relief may be supported by different factual allegations or different legal arguments or couched in different language renders those grounds no less identical. Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963).”

The court’s analysis in Aillon is directly on point in the instant case with respect to Paradise’s claim of prosecutorial vindictiveness. In Paradise’s second appeal, State v. Ellis, supra, he raised the issue of whether the principles of res judicata barred the state’s charging him with capital felony, after its initial charges of murder, felony murder and kidnapping were dismissed on statute of limitations grounds. This court held that the dismissal of the initial charges did not bar the state’s subsequent prosecution of Paradise on a charge of capital felony. Thus, the principal question in this case is whether Paradise’s present claim of pros-ecutorial vindictiveness is sufficiently similar to his earlier claim of res judicata to warrant this court’s giving preclusive effect to the judgment in Ellis. We conclude that it is. Just as the defendant in Aillon raised two double jeopardy claims emanating from precisely the same facts, Paradise raises two due process claims stemming from precisely the same facts.

Although the doctrine of res judicata itself is not of constitutional dimensions; see, e.g., United States v. Oppenheimer, 242 U.S. 85, 87-88, 37 S. Ct. 68, 61 L. Ed. 161 (1916); Ellis is a due process case. As this court noted in Ellis: “Where the double jeopardy clause is inapplicable, due process protects against vindictive or coercive use of the power to prosecute. See United States v. Goodwin, 457 U.S. 368, 372,102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982); Blackledge v. Perry, 417 U.S. 21, 28-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).” State v. Ellis, supra, 478. In simple terms, the issue in Ellis was whether the state could bring a subsequent prosecution that was based on the same evidence and conduct as the previous prosecution.* *** Thus, the underpinning of Ellis is clearly one of due process.

Both the claim asserted by Paradise in Ellis and the claim asserted by him in the present case therefore, are ones of due process. Since both claims arise from the same factual and evidentiary foundation, the state’s decision to bring a subsequent charge of capital felony against Paradise, we hold that Paradise’s first due process claim in Ellis is res judicata with respect to his due process claim of prosecutorial vindictiveness in the present case.

II

Next, the defendant claims that a new trial is required as a result of the state’s repeated misrepresentations concerning its sentencing recommendation for its key witness, Brian Ellis. We disagree. The defendant contends that the state’s attorney did not accurately portray the nature of the bargain that his accomplice, Ellis, struck with the state. Paradise maintains that the prosecutor led the jury and the court to believe that Ellis’ testimony would have no bearing on his sentence and then, at the time of Ellis’ sentencing, requested the sentencing court to consider Ellis’ testimony in imposing his sentence.

In particular, on April 10, 1986, in relation to the charge of capital felony that was pending against him for his involvement in Cunningham’s murder, Ellis entered a plea of nolo contendere to the crime of kidnapping in the second degree, in violation of General Statutes § 53a-94. At that time, the state represented that “we intend to recommend at the time of sentencing a sentence to serve not less than seven years, nor more than fourteen years. Counsel has reserved his right to argue for the imposition of a lesser sentence.” During Paradise’s trial, the prosecutor then had the following colloquy with Ellis:

“Q. Do you have an understanding as to whether or not the State will make any recommendation with respect to your sentence?
“A. I hope so.
“Q. And what is your understanding, Sir?
“A. That if I testify, I can get a lower sentence.
“Q. And what is the recommended sentence? What will the State recommend for you?
“A. Hopefully something lower than the sentence that I’m getting.
“Q. Which sentence are you going to get, Sir?
“A. Seven to 14 years.
“Q. The sentence of not less than seven or more than 14 years?
“A. Yes.
“Q. To serve?
“A. Yes.
“Q. And do you understand whether or not your attorney has the right to argue for a lesser sentence? Mr. Klein, here?
“A. Yes.
“Q. And can you tell us why you’re testifying here today?
“A. So that I hope that I do get a lesser sentence.
“Q. Now do you understand that the State is going to recommend a sentence of seven to 14 years?
“A. Yes.
“Q. And your attorney has the right to argue for a lesser sentence, is that right?
“A. Yes.
“Q. And do you understand that the State’s recommendation is seven to 14 years, regardless of whether you testify today? You understand that, Sir?
“A. Yes, Your Honor; I mean, yes.
“Q. And that you’re testifying today, are you, so that your attorney .may argue for a lesser sentence?
“A. Yes.”

Then, the same prosecutor who conducted this line of questioning with Ellis, stated the following at Ellis’ sentencing hearing:

“[State’s Attorney]: . . . [W]e ask the Court to— ah — I do feel that some mitigation of the seven to fourteen (7 to 14) would certainly be appropriate; and I think it’s only appropriate, however, in cases where people come forward and actually testify. And, not so when people ‘stonewall’ and don’t testify. . . .
“The Court: I would gather from that, if Mr. Ellis were here today pleading for the first time — after the testimony — that you would probably — your recomme-nation would have been lower than it was originally-knowing all the facts now. I recognize, in different words.
“[State’s Attorney]: It’s a difficult question to answer. I really can’t answer it. All I can do is to urge the Court to give him some concrete consideration with respect to the — as against the cap which the State
“The Court: All right. I assume that you’re urging that because you feel that’s appropriate?
“[State's Attorney]: I do it for two (2) reasons. First, I have a duty to; and second, I feel it’s appropriate also. . . . [Everything he has done since the date of the plea of no contest has been of assistance to the State; and I feel very strongly, that he should get the Court’s consideration for what he’s done because it has been difficult for him and helpful to the State.” The court then stated: “Essentially, I’m going to give you [Ellis] the recommendation of the State — but it’s not less than seven (7) or more than fourteen (14). . . . I’m going to impose a sentence of not less than four and a half (4 1/2) years and no more than nine (9) years.”

The defendant claims that the state’s effectively altering its sentencing recommendation for Ellis, after steadfastly representing at trial that it would not do so, constitutes constitutional error. The defendant maintains that two possibilities exist regarding the state’s actions, both of which result in the defendant being deprived of his constitutional right to a fair trial: (1) either there was a secret bargain and therefore Ellis understood at the time of the trial that the prosecutor would reward him for his testimony; or (2) Ellis was kept in the dark, and thus the prosecutor deceived the court, the jury and Ellis as to his true intentions regarding his sentencing recommendation for Ellis.

The defendant asserts that either scenario results in constitutional error under Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), since the knowing presentation of false evidence by the state is incompatible with the “ ‘rudimentary demands of justice.’ ” Giglio v. United States, supra, 153, quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 79 L. Ed. 791 (1935). Furthermore, due process is similarly offended if the state, “although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, supra, 269. If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception. Giglio v. United States, supra; Napue v. Illinois, supra, 269-70. “Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading.” United States v. Harris, 498 F.2d 1164, 1169 (3d Cir.), cert. denied sub nom. Young v. United States, 419 U.S. 1069, 95 S. Ct. 655, 42 L. Ed. 2d 665 (1974). “A new trial is required if ‘the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.’ Napue [v. Illinois], supra, 271.” Giglio v. United States, supra, 154; see United States v. Bagley, 473 U.S. 667, 678-80, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

We conclude, however, that it is unnecessary to determine if either one of the defendant’s factual scenarios is accurate. We hold that even if there were, as claimed by the defendant, a secret bargain or knowing misrepresentations by the state, a new trial would not be required because evidence of such would not “in any reasonable likelihood have affected the judgment of the jury.” Napue v. Illinois, supra, 271. In short, we conclude that the fact that the state altered its sentencing recommendation for Ellis, after it represented at trial that it would not, constitutes harmless error in this case for the following reasons.

First and foremost is the fact that “ ‘[t]he thrust of Giglio and its progeny [is] to ensure that the jury knows the facts that might motivate a witness in giving testimony . . . .’ Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S. Ct. 510, 78 L. Ed. 2d 699 (1983).” Brown v. Wainwright, 785 F.2d 1457, 1465 (11th Cir. 1986); see United States v. Burroughs, 830 F.2d 1574, 1578 (11th Cir. 1987), cert. denied sub nom. Rogers v. United States, 485 U.S. 969, 108 S. Ct. 1243, 99 L. Ed. 2d 442 (1988). Therefore, the state’s mitigation of its initial sentencing recommendation is of little or no import in this case because the jury was already apprised of Ellis’ motivation for testifying. As noted, when asked at trial what his understanding was with the state regarding his sentencing recommendation, Ellis replied: “That if I testify, I can get a lower sentence. . . . Hopefully something lower than the sentence that I’m getting.” Thus, “[t]he jury actually learned the primary motivation behind [Ellis’] testimony. This is all that Giglio requires.” United States v. Burroughs, supra, 1579. Second, the jury was made well aware of the severity of the charge that Ellis originally faced, including the fact that by testifying he no longer faced the death penalty.

Therefore, “the question is not whether the verdict might have been different without any of [Ellis’] testimony, but whether the verdict might have been different if [Ellis’] testimony were further impeached by disclosure of the [alleged] deal.” Graham v. Wilson, 828 F.2d 656, 660 (10th Cir. 1987), cert. denied, 484 U.S. 1069, 108 S. Ct. 1035, 98 L. Ed. 2d 999 (1988). Given the multitude of evidence presented at trial concerning Ellis’ motivation for testifying, any benefit that the defendant might have derived from the jury’s awareness of what the state was actually going to recommend at Ellis’ sentencing hearing was minimal at best. Obviously, it would have been more forthright on the part of the state to admit during trial that it was going to ask the sentencing court to mitigate Ellis’ sentence in consideration of his cooperation and testimony at the defendant’s trial. The state’s failure to do so. did not, however, in this case, deprive the defendant of a fair trial.

Ill

The defendant further argues that the trial court erred in prohibiting him from cross-examining a physician concerning charges of official misconduct that had been brought against him. Specifically, the state called Dr. Elliot Gross to testify as to the victim’s cause of death. Gross, who at the time of the trial was the chief medical examiner of New York city, had been the chief medical examiner of Connecticut at the time of Cunningham’s murder. Gross did not perform the autopsy on the victim’s body, but reviewed several photographs of the body, the official autopsy report, a report of the doctor who went to the crime scene, as well as a summary of the report made by the Enfield police department. After reviewing these materials, Gross arrived at the conclusion that the victim’s death was the result of multiple stab wounds to the trunk.

During his cross-examination at trial, the defendant attempted to ask Gross about an “investigation Mayor Koch and the governor conducted” regarding him and the office that he headed, the New York city medical examiner’s office. The state objected, and the jury was excused. The defendant explained that he wanted to conduct an inquiry into the investigation for “impeachment purposes to challenge [Gross’] opinion as an [expert].” Although the defendant conceded that Gross had been exonerated of the “charges” arising out of the investigation, he argued that “despite the fact that he’s been exonerated, if there were specific examples or cases in which there may have been some small problems or something more than a small problem, I think I should be able to inquire as to those specific cases, to test his credibility, reliability as a[n] expert.” After hearing argument, the court sustained the state’s objection to the proposed cross-examination and the defendant excepted.

The defendant claims that the trial court’s refusal to allow his questioning of Gross regarding the investigation of him and his office constitutes reversible error both in terms of the common law of evidence and the confrontation clauses of the state and federal constitutions. We do not agree. The confrontation clause of the sixth amendment to the United States constitution guarantees an accused the right “to be confronted with the witnesses against him.” U.S. Const., amend. VI. “ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” (Emphasis omitted.) Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), quoting 5 J. Wigmore, Evidence (3d Ed. 1940) § 1395, p. 123. Nevertheless, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevent.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). “[T]he defendants’ right to confront and to cross-examine witnesses against them is not absolute, but must, on occasion, bow to other legitimate interests in the criminal trial process.” In re Robert H., 199 Conn. 693, 705, 509 A.2d 475 (1986).

In the present case, the trial court acted well within its discretion. First, Gross had been exonerated of all charges arising out of the investigation; thus, evidence pertaining to the investigation was of dubious value. Second, questions regarding Gross’ conclusions in other cases would inevitably have led to a “mini-trial” of each of those cases. Even if the defendant were able to extract an admission of negligence from Gross, the weight to be given such an admission would not have been immediately apparent. In order for the jury to assess such an admission in weighing Gross’ opinion in the present case, the jury would have had to have known, at a minimum, the circumstances of the other cases, the nature of the mistakes made in those cases, how they occurred, and what, if anything, about those cases made it more likely that Gross was mistaken in his opinion concerning the cause of Cunningham’s death. It was, therefore, well within the discretion of the trial court to prohibit such a time-consuming and collateral inquiry.

IV

Finally, the defendant argues that the trial court erred in failing to ascertain, on the record, whether he had made a knowing, voluntary and intelligent waiver of his right to testify on his own behalf. We do not agree. The United States Supreme Court has explicitly confirmed that criminal defendants have a constitutional right to testify on their own behalf. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). The defendant argues that, as an incident to this right, the trial judge has an affirmative duty to canvass the defendant to ensure that his waiver of his right to testify is knowing, voluntary and intelligent. We do not believe that federal law contains any such procedural requirement in a case such as this where the defendant has not alleged that he wanted to testify or that he did not know that he could testify. See Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987); United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir. 1987); United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir. 1983), cert. denied, 465 U.S. 1036, 104 S. Ct. 1310, 79 L. Ed. 2d 707 (1984); but see People v. Curtis, 681 P.2d 504, 512-13 (Colo. 1984). As the First Circuit Court of Appeals stated in United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d 115 (1985): “The accused must act affirmatively. While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the ‘if’ and ‘when’ of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” Accordingly, we find that the trial judge had no duty to canvass the defendant in this case regarding his waiver of his right to testify on his own behalf.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1975)] Sec. 54-193. limitation of prosecutions for various offenses. No person shall be prosecuted for treason against this state, or for any crime or misdemeanor of which the punishment is or may be imprisonment in the Connecticut Correctional Institution, Somers, except within five years next after the offense has been committed; nor shall any person be prosecuted for the violation of any penal law, or for other crime or misdemeanor, except crimes punishable by death or imprisonment in the Connecticut Correctional Institution, Somers, but within one year next after the offense has been committed; but, if the person, against whom an indictment, information or complaint for any of said offenses is brought, has fled from and resided out of this state, during the period so limited, it may be brought against him at any time, within such period, during which he resides in this state, after the commission of the offense; and, when any suit, indictment, information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time.”

       General Statutes § 53a-54b provides in pertinent part: “A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety.”

       U.S. Const., amend. XIV, § 1; Conn. Const., art. I, § 8.

       In addition, the Aillon court noted that the defendant had not asserted a valid reason as to why he could not have brought his latter double jeopardy claim when he had brought his prior one. State v. Aillon, 189 Conn. 416, 427, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983).

       In State v. Ellis, 197 Conn. 436, 483, 497 A.2d 974 (1985), Chief Justice Peters noted in dissent that the majority’s rejection of Paradise’s res judicata claim, in effect, “impose[d] upon [him] the punishment of increased jeopardy for having exercised [his] right to contest the validity of the original proceedings against [him]. Such a result is unconstitutional. Due process forbids punishing criminal defendants for the exercise of constitutional or statutory rights.” (Emphasis added.)

       In fact, defense counsel admitted to such at oral argument, stating: “There was a due process claim pursued in State v. Ellis [197 Conn. 436, 497 A.2d 974 (1985)].”

       In addition, Paradise has not asserted a valid reason as to .why he could not have brought his present due process claim in his appeal in State v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985), especially since Paradise did bring a cross appeal in Ellis on another issue.
      Furthermore, although the issue of prosecutorial vindictiveness was not the principal issue before the court in Ellis, the court noted: “The defendants do not contend, nor do we find, that the state reinitiated prosecution in this case for other than constitutionally legitimate reasons.” Id., 477-78.

       The defendant also argues that it would be appropriate for this court to invoke its inherent supervisory power to set aside his conviction pursuant to State v. Cohane, 193 Conn. 474,499-500, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984),

       Moreover, questions exposing Ellis’ expectation of leniency abound throughout the nearly 200 pages of his testimony. For example, defense counsel asked Ellis if his memory of the events surrounding Cunningham’s death had improved so that he could take advantage of the plea bargain offered by the state. At another juncture, Ellis admitted that he would choose freedom over going to jail, and that in order to get his freedom he had to testify. It was also made clear to the jury that, regardless of the state’s recommendation at Ellis’ sentencing, Ellis’ attorney had the right to argue for a lower sentence.

       In addition, we conclude that this case does not warrant the use of this court’s supervisory power to set aside the defendant’s conviction.

       U.S. Const., amend. VI; Conn. Const., art. I, § 8.