author: Peters, C. J.

text:
    State of Connecticut v. Guillermo Aillon
    (12612)
    (12613)
    (12614)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued January 9
    decision released March 3, 1987

      John R. Williams, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom were Robert J. Devlin, Jr., assistant state’s attorney, and, on the brief, Arnold J. Markle, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this case is the propriety of several trial court rulings arising out of the alleged unavailability of an expert witness for the defense. The defendant, Guillermo Aillon, was charged by three separate indictments with having committed three murders in violation of General Statutes § 53a-54. Two previous trials on these charges failed to result in a conclusive judgment of either conviction or acquittal. In the present third trial, a jury found him guilty on each of the indictments and the trial court, Hadden, J., sentenced him to three consecutive terms of imprisonment for 25 years to life. The defendant appeals from this judgment. We find no error.

The charges against the defendant arose out of three killings that occcurred on August 14,1972, when George Montano, his wife, Bernice Montano, and his daughter, Barbara Aillon, the defendant’s estranged wife, were stabbed to death. The defendant was tried on these charges in 1973, and convicted by a jury, but he was granted a new trial because of an improper ex parte conversation between the trial court and a member of the jury. Aillon v. State, 173 Conn. 334, 339-40, 377 A.2d 1087 (1977). The defendant’s second trial, in 1978, ended with a declaration of mistrial after the jury failed to return a verdict. Thereafter, the defendant filed a motion for a judgment of acquittal arguing, inter alia, that his retrial constituted double jeopardy. That claim was twice rejected by the trial court and by this court. State v. Aillon, 189 Conn. 416, 421-22, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Aillon, 182 Conn. 124, 130-31 n.5, 137-38, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981). It was raised again in the context of two habeas corpus petitions alleging ineffective assistance of counsel. Only recently we upheld the dismissals of those petitions. Aillon v. Manson, 201 Conn. 675, 683-84, 519 A.2d 35 (1986). The present appeal arises out of the defendant’s convictions at his third jury trial which began on July 23, 1984.

The defendant’s appeal raises three claims of error. He maintains that: (1) the trial court, Hadden, J., erred in precluding the defendant from offering the evidence of an expert hair analyst; (2) the trial court, Hadden, J., erred in permitting the state to introduce statements and other evidence allegedly obtained as a result of an unconstitutional search and seizure; and (3) the trial court, O’Sullivan, J., erred in refusing to dismiss the grand jury indictments despite a social connection between the grand jury foreman and the family of the victims. We find none of these claims of error persuasive.

I

We will consider first the defendant’s two part claim relating to the expert witness whose testimony was allegedly both unavailable and essential to his defense. The defendant’s primary claim is that the trial court violated his state and federal constitutional rights to due process by denying his motion to admit the transcript of that witness’ prior testimony at his first trial into evidence in this trial. Secondarily, the defendant claims that once the trial court excluded this evidence, the court erred in denying the defendant’s request for a continuance to enable him to obtain the services of a substitute expert witness.

At each of the defendant’s three trials, one of the links between the defendant and the murders was hair that was found on the bloody bedsheets and blanket in George Montano’s bedroom. The state produced evidence from two FBI experts that this hair belonged to the defendant. At his first trial, the defendant contradicted this evidence through the testimony of Wellon D. Collom, a Pennsylvania criminologist, who asserted that there was no similarity between the hair found on George Montano’s bedding and the defendant’s hair. At the second trial, when Collom was physically ill, he did not testify in person, but a transcript of his 1973 testimony was read to the jury. At the third trial, however, the defendant was not permitted to have this transcript read to the jury. It is this ruling that underlies the defendant’s first claim of error.

At the defendant’s third trial, the defendant offered the following basis for having the transcript of Collom’s 1973 testimony introduced into evidence. Conceding that Collom was not physically or mentally unable to testify, defense counsel alleged that he had been advised that Collom was not presently willing to hold himself out as an expert on hair “because he doesn’t do that any longer.” Accordingly, since the witness was no longer prepared to come into court and testify as an expert, the defense claimed the applicability of the exception to the hearsay rule allowing former testimony into evidence when the witness is “unavailable.” See, e.g., Fed. R. Evid. 804; Practice Book §§ 793, 803; State v. DeFreitas, 179 Conn. 431, 441-45, 426 A.2d 799 (1980); State v. Parker, 161 Conn. 500, 501-502, 289 A.2d 894 (1971); State v. Weinrib, 140 Conn. 247, 251, 99 A.2d 145 (1953); C. McCormick, Evidence (3d Ed. 1984) § 253. The state objected, contesting both the expertise and the unavailability of the witness. The trial court, after hearing argument, sustained the objection of the state, and the defendant duly excepted.

The defendant now renews his argument that, because the reputed lapse of CoIIom’s expertise in hair analysis effectively rendered his testimony unavailable, and because a transcript of CoIIom’s former testimony was reliable evidence, the trial court’s exclusion of the former testimony violated his rights to due process of law under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. We disagree.

When a defendant offers evidence that is hearsay, his proffer runs counter to our well established preference for having a witness appear personally in court, under oath, so that his testimony can be subjected to cross-examination and his credibility adjudged in accordance with his demeanor. State v. DeFreitas, supra, 441, 445. This preference may be overcome by a showing that the proffered evidence is both reliable and necessary. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); State v. Frye, 182 Conn. 476, 480, 438 A.2d 735 (1980). Establishing a witness’ unavailability because of physical or mental incapacity is one way of showing the necessity for the admission of hearsay evidence.

We recognize the force of the defendant’s argument that there may well be circumstances in which constitutional considerations require expansion of the concept of unavailability, for the purposes of the hearsay exception, beyond the parameters of physical or mental incapacity. See generally State v. DeFreitas, supra, 442-43. Such an argument, however, is predicated on an assumption that the unavailability on which the defendant relies was factually demonstrated to the trial court. The record in the present case does not substantiate this assumption.

Even if we assume that, in this case, Collom’s prior cross-examination establishes the reliability of his testimony; see State v. Sharpe, supra, 665; State v. Parker, supra, 504-505; C. McCormick, supra, § 255; it was still the defendant’s burden to demonstrate its necessity by proving his unavailability. State v. Frye, supra, 480; C. McCormick, supra, § 253. Specifically, the defendant had to prove that Collom was in fact no longer prepared to testify as an expert. In the face of an objection by the state, the defendant did not satisfy his burden of proof through the unsupported representations of defense counsel that Collom was no longer qualified as an expert. So far as the record shows, the defendant made no attempt whatsoever to secure Collom’s physical presence so that he might personally advise the court as to his present inability, or unwillingness, to testify as an expert hair analyst. “Due diligence to procure the attendance of the absent witness [is] . . . an essential . . . predicate of unavailability.” State v. Weinrib, supra, 252; see also United States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S. Ct. 1125, 51 L. Ed. 2d 551 (1977); Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1972), cert. denied, 412 U.S. 929, 93 S. Ct. 2753, 37 L. Ed. 2d 156 (1973); Fed. R. Evid. 804 (a) (5). The defendant’s failure to produce Collom denied the trial court the opportunity to question him in person to discern whether he was truly “unavailable” or merely recalcitrant. See United States v. Zappola, 646 F.2d 48, 54 (2d Cir. 1981). The defendant was obliged, at minimum, to make a good faith effort to procure Collom’s attendance. Having failed to do so, he cannot now be heard to complain that the trial court’s adverse evidentiary ruling constituted an abuse of its discretion. State v. DeFreitas, supra, 445; State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977).

The defendant argues that it was unnecessary to attempt to procure Collom’s presence at trial because the trial court accepted defense counsel’s representations that Collom was unwilling to testify as an expert. The record shows, however, that the trial court several times indicated an unwillingness to declare Collom unavailable when the witness apparently was physically able to testify. The defendant, nonetheless, chose to rely exclusively on his counsel’s representations concerning the absent witness’ reluctance to testify as a predicate for establishing the witness’ unavailability. We find nothing in the record to indicate that the trial court led the defendant to believe that it would be unnecessary, or futile, for him to attempt to procure Collom’s attendance at trial in order to establish the unavailability of his testimony.

The defendant’s final argument is that the trial court’s interpretation of the hearsay exclusion for former testimony violated his state and federal constitutional rights by depriving the defendant of “crucial” evidence in his trial. Collom’s testimony certainly would have aided the defendant in rebutting the state’s evidence that the hair found at the murder scene belonged to him. Even without the hair evidence, however, there was more than sufficient additional evidence adduced at trial to permit the jury to find the defendant guilty as charged. That evidence included the following: (1) the defendant had threatened violence against his estranged wife, one of the murder victims; (2) the defendant was seen in the vicinity of the murder scene on the night of the murders; (3) the defendant lied to police about his activities on the night of the murders; (4) police officers located a serrated-edged knife, the type of weapon used in the murders, in the defendant’s automobile on the night of the murders; (5) the blood types of two of the victims matched those of bloody items seized from the defendant’s automobile; (6) blood found on one of the severed fingertips of a rubber glove, which had been found near the body of one of the murder victims, was of the same blood type as the defendant’s, and the glove fragments matched the rubber gloves used at a laboratory at the Yale School of Medicine at which, prior to the murders, the defendant had attended an embalming class; and (7) two witnesses contradicted the defendant’s alibi testimony that he had been at his sister’s house from the early evening until midnight on the night of the murders. In light of this compelling evidence of the defendant’s guilt, we are unpersuaded that the trial court’s exclusion of Collom’s former testimony violated the defendant’s right to due process of law. See State v. Ruth, 181 Conn. 187, 197-99, 435 A.2d 3 (1980); State v. Daniels, 180 Conn. 101, 112, 429 A.2d 813 (1980).

Because the record does not show that the defendant ever attempted to procure the physical presence of the allegedly unavailable witness, and because the jury could reasonably have found the defendant guilty from evidence independent of the hair testimony, we conclude that the trial court did not abuse its discretion in excluding the former testimony. This conclusion leads to a consideration of the defendant’s alternate claim that, having excluded the only expert hair analysis testimony that the defendant was then prepared to offer, the trial court erred in denying his motion for a continuance to enable him to procure the testimony of another expert.

The trial court’s ruling on the Collom transcript was made on September 13,1984, four days before the conclusion of the defendant’s third trial. Although the defendant’s counsel had been alerted, some time during the previous month, that Collom no longer deemed himself qualified to testify as an expert, the defendant did not begin seeking a second expert on hair analysis until the day of the adverse ruling by the trial court. On the following day, and again on September 18, the last day of trial, the defendant moved for a continuance until October 1,1984, to enable Dr. Peter DeForrest, who was temporarily out of the country, to examine, and testify about, the hair samples that were then in evidence. The state objected, and the trial court denied the motion. The defendant duly excepted.

The determination of whether to grant a request for a continuance is witMn the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921, reh. denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1964); State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985). In this case, the defendant contends that the trial court’s refusal to grant him a two week continuance to obtain DeForrest’s testimony deprived him of his federal constitutional rights to compulsory process and due process of law. We disagree.

“There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar v. Sarafite, supra; State v. Williams, supra; State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974). A criminal defendant’s right to present witnesses in his own defense is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, supra, 82-83. When a defendant seeks a continuance to obtain the presence of an absent witness, however, he bears the burden of providing a good faith justification for such a continuance. State v. Gordon, 197 Conn. 413, 424B, 504 A.2d 1020 (1985). To establish an abuse of discretion, the defendant must show that denial of the continuance demonstrably prejudiced his ability to defend himself. State v. Beckenbach, 198 Conn. 43, 52, 501 A.2d 752 (1985); State v. Stanley, 197 Conn. 309, 311-12, 497 A.2d 46 (1985); State v. Marra, supra.

Whether the defendant has been substantially prejudiced in this case is, on the present state of the record, a matter of conjecture. We have found prejudice, and an abuse of discretion, when a defendant was denied a continuance to obtain the testimony of a witness whose testimony was of substantial value to the defendant’s cause because it was known to be exculpatory. State v. Williams, supra, 315-18, 321; see also Wilkerson v. Turner, 693 F.2d 121, 124 (11th Cir. 1982); Singleton v. Lefkowitz, 583 F.2d 618, 624 (2d Cir. 1978), cert. denied sub nom. Abrams v. Singleton, 440 U.S. 929, 99 S. Ct. 1266, 59 L. Ed. 2d 486 (1979). This defendant, by contrast, failed to make any evidentiary showing that DeForrest’s testimony would have aided the defense in any manner. The defendant’s request for a continuance was based solely on his counsel’s representation that DeForrest was willing to analyze the hair evidence and “would be in a position to testify” on October 1,1984. The record does not show that DeForrest ever analyzed the evidence, let alone that his testimony would have been favorable to the defendant. Having failed to make more than a speculative showing of prejudice, the defendant has necessarily failed to demonstrate that the trial court abused its discretion in denying his motion for a continuance.

II

We now turn to the defendant’s second claim of error, which alleges that the trial court’s refusal to suppress certain incriminating evidence violated his state and federal constitutional rights against unreasonable search and seizure. According to his motion to suppress, the allegedly illegal evidence consisted of “any and all information” derived from the stop of the defendant’s automobile by North Haven police officers early in the morning of August 14,1972, shortly after the occurrence of the murders with which the defendant was charged. The defendant claims that the stop violated his constitutional rights because the police lacked sufficient cause to detain him. We disagree.

At the trial court hearings on the defendant’s suppression motions, the following facts emerged concerning the circumstances surrounding the allegedly illegal stop. At approximately 1 a.m. on August 14, 1972, Hamden police officer Pasquale Natale was notified of a possible burglary at a power equipment store in the vicinity of his patrol. On his way to the store, Natale noticed an automobile, subsequently determined to be the defendant’s, travelling without illuminated headlights. He then saw the automobile being pulled over by a North Haven police cruiser. Natale contacted his dispatcher, requesting information on the automobile and its driver and, if possible, that the driver be detained pending investigation of the burglary. He then proceeded to the power equipment store, where he confirmed that a burglary had occurred.

The North Haven police officer whom Natale had observed was Officer Edward Murphy, who had stopped the defendant’s automobile on State Street in North Haven between 12:30 and 1 a.m. on August 14. Murphy had stopped the defendant because his automobile had had a loud muffler and its rear marker plate had not been illuminated. After orally warning the defendant to repair the violations, Murphy allowed him to proceed.

Shortly thereafter, Murphy learned from a radio dispatch that the driver he had stopped was a suspect in the burglary of the power equipment store. He notified other patrols to look out for the automobile. He and two other North Haven police officers soon observed the defendant’s automobile heading northbound, in the direction of Wallingford. One of the other officers, Kerwin Daniels, signalled the defendant to pull over. After a brief hesitation, the defendant drove into a Farm Shop parking lot across the street.

After the defendant stopped his automobile, Daniels asked to see the defendant’s license and registration. While Murphy examined these documents, Daniels shone a flashlight inside the defendant’s automobile. In the back seat, he observed what appeared to be a knife handle protruding from a bundle of clothing. Daniels asked the defendant if the object was a knife, and the defendant replied affirmatively. Although the defendant initially declined Daniels’ request to show him the knife, he subsequently retrieved it upon the request of Sergeant Hayes Gibson, the third officer present at the scene of the stop. The knife was approximately ten inches long, with a serrated edge, and stained with what appeared to be blood. The defendant explained that the stains were juices from meat that he had cut at a barbecue earlier in the evening. Once the police officers had finished examining the knife, they returned it to the defendant. The officers then asked for and received the defendant's permission to examine the trunk of his automobile. Finding no evidence of a burglary, the officers released the defendant with a written warning for his defective muffler and marker plate light. The entire stop lasted approximately fifteen minutes.

The constitutional issue raised by this brief detention is whether the actions of the North Haven police officers exceeded the permissible limits of an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In his brief, the defendant argued for a broader inquiry, relying upon both the federal constitution and the strict standards of probable cause articulated by this court in State v. Kimbro, 197 Conn. 219, 233-38, 496 A.2d 498 (1985). At oral argument, however, defense counsel conceded that the precise issue before this court is not whether the police had probable cause to arrest the defendant but rather whether the investigative stop was justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry v. Ohio, supra, 21; United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981), reh. denied, 455 U.S. 1008, 102 S. Ct. 1648, 71 L. Ed. 2d 877 (1982); State v. Aversa, 197 Conn. 685, 690, 501 A.2d 370 (1985); State v. Braxton, 196 Conn. 685, 688-89, 495 A.2d 273 (1985); State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974); 3 W. LaFave, Search and Seizure (1978) § 9.2. What constitutes a reasonable and articulable suspicion depends on the totality of the circumstances. United States v. Cortez, supra, 417; State v. Aversa, supra. In reviewing the police officers’ actions in this case, we must determine, first, whether the stop was justified at its inception, and second, whether the ensuing police response was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, supra, 19-20; United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); State v. Braxton, supra.

The defendant contends that the North Haven police had no justification for stopping him for a second time near the Farm Shop because Officer Murphy had previously stopped and released him on State Street. The defendant does not challenge the validity of the first stop, but maintains that, once Murphy examined his driver’s documents and determined that there were no grounds for further detaining him, any subsequent investigative stop was per se unjustified and unconstitutional. We disagree. It may well be that a second police stop for the same motor vehicle violations that prompted Murphy’s first stop would have been unjustifiable. The second stop, however, had a different impetus. That stop was designed to investigate whether the defendant might be a suspect in a nearby burglary of which Murphy was unaware when he made the first stop. “One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime.” State v. Braxton, supra, 689.

When the North Haven police stopped the defendant for a second time to determine his possible involvement in the nearby burglary, they had sufficient reasonable and articulable grounds to justify that investigative detention at its inception. The challenged stop occurred only minutes after the defendant’s automobile had been seen in the vicinity of the burglary, which had only recently occurred. “Proximity in time and place of the stop to the crime is highly significant” in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion. State v. Aversa, supra, 691; State v. Carter, 189 Conn. 611, 616-17, 458 A.2d 369 (1983); 3 W. LaFave, supra, § 9.3 (d). The defendant’s automobile had been observed travelling without illuminated headlights, in the pre-dawn hours of the morning. See United States v. Holland, 510 F.2d 453, 454-55 (9th Cir.), cert. denied, 422 U.S. 1010, 95 S. Ct. 2634, 45 L. Ed. 2d 674 (1975); State v. Cardinal, 194 Conn. 114, 117-18, 478 A.2d 610 (1984); see generally State v. Aversa, supra, 691; State v. Paoletto, 181 Conn. 172, 174, 434 A.2d 954 (1980). Taken together, these facts warranted detaining the defendant to inquire whether he might possibly be a burglary suspect. “Even if the circumstances are such that no one person can be singled out as the probable offender, the police must sometimes be allowed to take some action intermediate to that of arrest and nonseizure scrutiny.” 3 W. LaFave, supra, § 9.3 (d), p. 84; see also United States v. Holland, supra, 455.

A Terry stop that is justified at its inception will pass constitutional muster only if the ensuing police investigation is reasonably related to the purposes of the stop. Like the determination of initial justification, this inquiry is fact-bound. State v. Braxton, supra. “The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” State v. Watson, supra, 585; State v. Januszewski, 182 Conn. 142, 149, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

In the course of investigating the burglary, it was reasonable for the North Haven police to confirm the defendant’s identity by inspecting his motor vehicle documents and to seek an explanation of his activities at the time of the burglary. It was also reasonable for the officers to conduct a visual inspection of the defendant’s automobile, aided by a flashlight in the absence of natural illumination, to determine whether the automobile contained items taken from the burglary or burglary tools. See State v. Graham, 200 Conn. 9, 20, 509 A.2d 493 (1986). Upon discovering the knife in the defendant’s automobile, and discerning that it was stained with what appeared to be blood, the officers had the right, and the duty, to inspect the weapon and inquire into the defendant’s reason for having it in his automobile. The officers did not display their guns, nor search the defendant’s person, nor physically restrain the defendant. See generally State v. Januszewski, supra, 150 (minimal restriction upon defendant’s liberty in motor vehicle stop was not unreasonable under circumstances). The stop lasted only fifteen minutes. “The brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.” United States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); United States v. Sharpe, supra, 685. We conclude, therefore, that the police officers’ actions were justified by the legitimate purpose of the stop. Accordingly, the trial court did not err in admitting the fruits of the stop into evidence at the defendant’s trial.

Ill

The defendant’s third and final claim of error asserts that the indictments under which he was prosecuted should have been dismissed because the foreman of the indicting grand jury was acquainted with one of the murder victims and his family. The defendant claims that his constitutional rights to due process were violated when he was deprived of the opportunity to inquire into a friendship between the grand jury foreman and the family of George Montano. The trial court, O’Sullivan, J., although alerted to the fact of this friendship, refused to permit the defendant to conduct a voir dire of the foreman, or to present witnesses to testify about his relationship with the Montano family. We find no error.

The defendant’s claimed right to undertake a voir dire of a member of the grand jury is fatally undermined by our recent decision in State v. Simms, 201 Conn. 395, 399-404, 518 A.2d 35 (1986). In Simms, where a defendant sought to conduct such an inquiry to ascertain the effects of adverse pretrial publicity, we concluded that the state constitutional right to a disinterested grand jury does not create a concomitant right to voir dire prospective grand jurors. Id. The defendant’s asserted right to call witnesses to testify to the relationship of the grand jury foreman with the Montanos similarly lacks a constitutional foundation. “If we were to require a full-scale investigation of a grand jury panel upon unsubstantiated assertions that the panel had been improperly drawn, we would be . . . opening the door to postindictment scrutiny of virtually every grand jury panel, no matter how impartial and representative in fact.” Id., 402.

Here, as in Simms, the defendant has failed to show that the grand jury foreman’s relationship with the family of the murder victims prejudiced the defendant’s cause before the grand jury. On the contrary, the record indicates that the foreman informed the trial court of his acquaintance with the victims before being empanelled, and unequivocally assured the court that this circumstance would have no effect on his deliberations. We therefore conclude that the defendant has failed to meet his burden of showing actual prejudice on the part of the grand jury. Id., 403; see also United States v. Burke, 700 F.2d 70, 82 (2d Cir.), cert. denied, 464 U.S. 816, 104 S. Ct. 72, 78 L. Ed. 2d 85 (1983).

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1972) § 53a-54 provides in relevant part: “murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when: (1) With intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime . . . .”

       The defendant's brief also raises a generalized claim of prejudice from the failure of the trial court, Hadden, J., to grant his attorneys sufficient time to prepare for his third trial. At oral argument, however, the defendant made clear that this claimed prejudice was not a separate claim of error, but was intended to bolster his argument on the twin issues of the trial court’s refusal to admit the former expert testimony and refusal to allow a continuance to obtain a substitute expert.

       “[Practice Book] Sec. 793. —use of deposition
      “So far as otherwise admissible under the rules of evidence, a deposition may be used as evidence at the trial or at any hearing if the deponent is unavailable, as defined in Sec. 803. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer, or he may himself offer, all of it which is relevant to the part offered.”
      “[Practice Book] Sec. 803.-unavailability
      “ ‘Unavailable’ as used in Sec. 793 includes situations in which the deponent:
      “(1) Is exempted by a ruling of the judicial authority on the ground of privilege from testifying concerning the subject matter of his deposition;
      “(2) Persists in refusing to testify concerning the subject matter of his deposition despite an order of the judicial authority to do so;
      “(3) Testifies to a lack of memory of the subject matter of his deposition;
      “(4) Is unable to be present or to testify at a trial or hearing because of his death or physical or mental illness or infirmity; or
      “(5) Is absent from the trial or hearing and the proponent of his deposition has been unable to procure his attendance by subpoena or by other reasonable means.
      “A deponent is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is the result of the procurement or wrongdoing by the proponent of his deposition for the purpose of preventing the witness from attending or testifying.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       On September 18, 1984, for example, following defense counsel’s attempt to characterize what Collom’s testimony would be if brought before the court, the trial court responded: “I don’t know what he is going to say when he gets on the stand. He hasn’t gotten on the stand.” Earlier, on September 14, defense counsel represented to the court that the state’s attorney had agreed in a chambers conference to allow Collom’s former testimony to be read into evidence. The state’s attorney denied having made such an agreement. The trial court, which apparently had been present during the discussion at which the alleged agreement had been reached, corroborated the state’s version: “There wasn’t any question in my mind that Mr. Markle was telling you you bring Mr. [Collom] here, you’d better have him, Mr. Dakers, and words to that effect.”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      The fourth amendment to the United States constitution, made binding on the states through the constitution’s fourteenth amendment, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

         This motion was filed on August 2,1984. At the defendant’s first trial in 1978, he filed a motion to suppress all property seized during subsequent police searches of his automobile and apartment. The latter motion was refiled by the defendant on May 21,1984. The trial court denied the motions to suppress as to the stop and subsequent automobile searches. On appeal, the defendant bases his claim of error on the admission into evidence of “the fruits of a warrantless search of the defendant’s automobile.” We presume, therefore, that the defendant is not challenging the trial court’s ruling as to property obtained in a police search conducted pursuant to a warrant obtained on August 17,1982, whieh the defendant also sought, unsuccessfully, to suppress. Insofar as the record indicates, the only warrantless searches of the defendant’s automobile occurred during the stop on the morning of August 14,1972, and on the afternoon of the same day, when police seized a knife, later introduced into evidence as an exhibit for identification, from the defendant’s automobile while it was being repaired at a muffler shop.

       See State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667 (1970).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony Esposito et al. v. Planning Commission of the Town of Westbrook
    (12924)
    Peters, C. J., Shea, Santaniello, Dupont and Curran, Js.
    Argued February 4
    decision released March 3, 1987

      Bruce G. MacDermid, for the appellant (defendant).

      Roger J. Frechette, for the appellees (plaintiffs).
   Per Curiam.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The underlying issues have been fully considered in the opinion of the Appellate Court; Esposito v. Planning Commission, 6 Conn. App. 34, 503 A.2d 173 (1986); and it would serve no useful purpose for us to repeat the discussion therein contained.

The appeal is dismissed.


text:
    Schieffelin and Company, Inc. v. Department of Liquor Control et al.
    (12921)
    (12922)
    Peters, C. J., Dannehy, Santaniello, Callahan, and Ment, Js.
    Argued January 9
    decision released March 3, 1987

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard M. Sheridan, assistant attorney general, for the appellant (named defendant).

      Walter B. Schatz, with whom, on the brief, were Leonard Bieringer and Alfred E. Wechsler, for the appellants (defendant Brescóme Distributors Corporation et al.).

      Barry J. Waters, with whom was John C. Yavis, Jr., for the appellee (plaintiff).
   Peters, C. J.

The dispositive issue in these cases is whether this administrative appeal was finally adjudicated, for purposes of appeal to this court, when the trial court remanded the case for administrative resolution of an issue which the administrative tribunal had failed to adjudicate. We hold that there was no final judgment, and therefore dismiss this appeal.

The underlying litigation arose out of efforts by the plaintiff, Schieffelin & Co., to terminate the distributorships of several liquor wholesale licensees, including the defendants Brescóme Distributing Corporation and Eder Brothers, Inc. Its history is described in full in our earlier opinion in Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 479 A.2d 1191 (1984). As it was required to do by the terms of General Statutes § 30-17 (a) (2), the plaintiff sought permission from the defendant Department of Liquor Control (hereinafter department) to terminate the individual defendants’ distributorships. In ruling against the plaintiff, the department did not determine whether the plaintiff had met the statutory requirement of establishing just and sufficient cause for the terminations it sought to implement. Instead, the department merely concluded that the terminations were unwarranted because the plaintiff had failed to comply with the procedural requirement of § 30-17 (a) (2) that “cause shall be set forth” in notices of termination.

Upon the plaintiff’s administrative appeal to the Superior Court, that court concluded that the notices of termination to the defendants Brescóme and Eder sufficiently complied with the requirements of § 30-17 (a) (2). That conclusion did not, however, terminate the litigation between the parties, because the trial court held that it could not make an initial ruling about whether the plaintiff had substantively established cause for its termination of the individual defendants’ distributorships. Accordingly, the trial court remanded the case to the department for resolution of that issue. General Statutes § 4-183 (g).

The defendants then appealed to this court. The parties disagree not only about the validity of the trial court’s ruling on the notice issue but also about the consequences that flow from the trial court’s judgment. If we agree with the trial court that the notices complied with § 30-17 (a) (2), the plaintiff, fearing prejudgment by the department, urges us to remand the case to the trial court for final judicial resolution of the issue of just cause. The defendants, on the other hand, maintain that our affirmance of the trial court’s judgment would require us also to concur in the trial court's order of administrative remand.

Upon examination of the briefs and records before oral argument of these appeals, this court sua sponte issued an order of notice to the parties that the appeals might be dismissed for lack of a final judgment. Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., further appellate review of superior court rulings on administrative appeals is limited to cases in which the Superior Court has rendered a final judgment. General Statutes § 4-184. That statutory provision accords with the general proposition that, except in special cases, such as appeals upon reservations; State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); or upon certification pursuant to General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984); the jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes § 52-263; Practice Book § 4000 (formerly § 3000); Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987); Doublewal Corporation v. Toffolon, 195 Conn. 384, 388-89, 488 A.2d 444 (1985).

The expeditious resolution of disputes counsels against appellate review of trial court rulings that do not finally dispose of all the issues between the litigating parties. See Practice Book § 4002 (formerly § 3001). When a trial court lacks authority to render a definitive judgment on pending claims, its rulings are, in effect, interlocutory orders, no matter how they may have been denominated as a matter of form. Doublewal Corporation v. Toffolon, supra, 391-93. Interlocutory orders, in turn, are immediately appealable only “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curio, 191 Conn. 27, 31, 463 A.2d 566 (1983); Melia v. Hartford Fire Ins. Co., supra.

We have not recently articulated how these principles apply to appellate proceedings that arise out of administrative appeals under the Uniform Administrative Procedure Act. There may well be cases in which we have addressed the merits of an administrative appeal without fully considering its jurisdictional implications. The press of the appellate docket in the Appellate Court and in this court, and the fact that motions to dismiss may be granted without an accompanying written opinion, make it important now to clarify the ground rules for appellate review of administrative appeals.

There is no reason why administrative appeals should not be governed by the principles of Curdo set forth above. A judgment by a trial court ordering further administrative proceedings cannot meet the first prong of the Curdo test, because, whatever its merits, the trial court’s order has not “terminate^] a separate and distinct proceeding.” The more difficult question is whether the trial court’s order “so concludes the rights of the parties that further proceedings cannot affect them.”

Under our existing case law, we have distinguished, with reference to that question, between two kinds of administrative remands. A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such circumstances, we have held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. See, e.g., Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67 (1952); Santos v. Publix Theatres Corporation, 108 Conn. 159, 161, 142 A. 745 (1928). A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. Without dictating the outcome of the further administrative proceedings, the court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. See General Statutes § 4-183 (e). Such an order is not a final judgment. See, e.g., Burdick v. United States Finishing Co., 128 Conn. 284, 288-89, 22 A.2d 629 (1941); Luliewicz v. Eastern Malleable Iron Co., 126 Conn. 522, 524, 12 A.2d 779 (1940).

The present appeal closely resembles the category of cases in which, because the administrative record is incomplete, appellate review of a judicial order of administrative remand is premature. We agree with the trial court and the defendants that the trial court itself lacked the authority to adjudicate the issue of just cause which it remanded to the department. The trial court’s interlocutory order did not direct the department to undertake an administrative reconsideration of the issue of notice upon which the department had previously ruled. Instead, the department was ordered to undertake an evidentiary inquiry into an issue that it had not previously addressed, the issue of good cause for termination of the individual defendants’ distributorships. The trial court’s order did not, either directly or indirectly, prejudge that issue, whose merits are not identical to the merits of the notice issue on which the court had ruled adversely to the defendants. In ruling that the plaintiff has established proper notice but has yet to prove just cause, the trial court has placed the defendants in the same posture in which litigants find themselves when a trial court orders a further hearing in damages after it has granted an adverse motion for summary judgment. Appellate review of such a ruling must also await the outcome of the hearing in damages. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84-86, 495 A.2d 1063 (1985); Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980); Research Associaties, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 140-41, 204 A.2d 833 (1964). Similarly, we have just recently ruled that an agency decision in which damage issues remain undetermined lacks the finality required for Superior Court review. Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 155-57, 520 A.2d 186 (1987). Because there has not yet been a definitive administrative determination of the plaintiff’s claimed right to terminate the distributorships of the individual defendants, the trial court’s interlocutory ruling was not a final judgment.

The appeals are dismissed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1981) § 30-17 (a) (2), as amended by Public Acts 1981, No. 81-367, provides: “wholesaler permit, termination or diminishment of distributorship. . . . When a holder of a wholesale permit has had the distributorship of any alcohol, beer, spirits or wine product of a manufacturer or out-of-state shipper or their successors or assigns for six months or more, such distributorship may be terminated or its geographic territory diminished upon (A) the execution of a written stipulation by the wholesaler and manufacturer or out-of-state shipper or their successors or assigns agreeing to the change and the approval of such change by the department of liquor control; or (B) the sending of a written notice by registered mail, return receipt requested, by the manufacturer or out-of-state shipper or their successors or assigns to the wholesaler, a copy of which notice has been sent simultaneously by registered mail, return receipt requested, to the department of liquor control. No such termination or diminishment shall become effective except for just and sufficient cause, provided such cause shall be set forth in such notice and the department of liquor control shall determine, after hearing, that just and sufficient cause exists. If an emergency occurs, caused by the wholesaler, prior to such hearing, which threatens the manufacturer’s or out-of-state shipper’s or their successor’s or assign’s products or otherwise endangers the business of the manufacturer or out-of-state shipper or their successors or assigns and said emergency is established to the satisfaction of the department of liquor control, the department may temporarily suspend such wholesaler permit or take whatever reasonable action the department deems advisable to provide for such emergency and the department may continue such temporary action until its decision after a full hearing. The department of liquor control shall render its decision with reasonable promptness following such hearing. Notwithstanding the aforesaid, a manufacturer or out-of-state shipper or their successors or assigns may appoint one or more additional wholesalers as the distributor for an alcohol, beer, spirits or wine product within such territory provided with regard to alcohol, spirits or wine products such appointment shall not be effective until six months, and with regard to beer products one year, from the date such manufacturer or out-of-state shipper or their successors or assigns shall set forth such intention in written notice to the existing wholesaler by registered mail, return receipt requested, with a copy of such notice simultaneously sent by registered mail, return receipt requested, to the department of liquor control. For the purposes of this section, just and sufficient cause means the existence of circumstances which, in the opinion of a reasonable person considering all of the equities of both the wholesaler and the manufacturer or out-of-state shipper or their successors or assigns, warrants a termination or a diminishment of a distributorship as the case may be.

       The parties expressed their concern at oral argument about being precluded from pursuing their appeal rights if they did not immediately file an appeal from the judgment of remand. That concern is unfounded since the parties retain the power under Practice Book § 4002 (formerly § 3001) to file a notice of appeal whenever a judgment conceivably may be final, while postponing the actual appeal until the litigation has been completely concluded.


text:
    Schlumberger Technology Corporation v. Orest T. Dubno, Commissioner of Revenue Services
    (12728)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued December 2, 1986
    decision released March 3, 1987

      Richard K. Greenberg, assistant attorney general, with whom were Anne M. Dufour, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellant-appellee (defendant).

      Maurice T. FitzMaurice, with whom, on the brief, were John M. Horak and Lawrence H. Lissitzyn, for the appellee-appellant (plaintiff).
   Peters, C. J.

This case involves a dispute about the proper measure of a multistate corporation’s liability for the Connecticut corporation business tax. The plaintiff, Schlumberger Technology Corporation, appealed to the Superior Court, pursuant to General Statutes § 12-237, from a decision of the defendant commissioner of revenue services determining that the plaintiff's taxable income should be apportioned to Connecticut in accordance with the provisions of General Statutes § 12-218 (b). The trial court sustained the plaintiff’s appeal, and remanded the case to the defendant for further proceedings. From this judgment, the defendant has filed an appeal and the plaintiff a cross appeal. Because we conclude that the defendant was correct in his initial departmental determination of the plaintiff’s tax liability, we find error on the defendant’s appeal and no error on the plaintiff’s cross appeal.

The Connecticut corporation business tax; General Statutes § 12-213 et seq.; is a tax upon the franchise of corporations, whether they be domestic or foreign, “for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity . . . .” General Statutes § 12-214; Connecticut Bank & Trust Co. v. Tax Commissioner, 178 Conn. 243, 247, 423 A.2d 883 (1979); Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 56, 61 A.2d 89 (1948); Stanley Works v. Hackett, 122 Conn. 547, 551, 190 A. 743 (1937); Underwood Typewriter Co. v. Chamberlain, 94 Conn. 47, 55, 108 A. 154 (1919), aff'd, 254 U.S. 113, 41 S. Ct. 45, 65 L. Ed. 165 (1920). It is a franchise tax “measured by the entire net income . . . received by such corporation . . . from business transacted within the state during the income year . . . .” General Statutes § 12-214; Connecticut Bank & Trust Co. v. Tax Commissioner, supra.

For a multistate corporation that is taxable “both within and without this state,” the Connecticut corporate business tax is calculated by taxing the corporation, at current rates, upon the fraction of its entire net income that is apportioned to Connecticut in accordance with one of the formulae set out in General Statutes § 12-218. The choice of the appropriate apportionment formula depends, under § 12-218, on the nature of the taxpayer’s business. Only two of these formulae have any possible bearing on the business of the plaintiff taxpayer in this case. The differentiating factor between these two formulae is whether the taxpayer’s income is, or is not, derived from the manufacture, sale or use of tangible personal or real property. The net income of a § 12-218 (a) taxpayer, whose income is “derived from business other than the manufacture, sale or use of tangible personal or real property,” is apportioned according to a one factor formula comparing the taxpayer's Connecticut gross receipts with his gross receipts “from business carried on everywhere.” By contrast, the net income of a § 12-218 (b) taxpayer, whose income is “derived from the manufacture, sale or use of tangible personal or real property,” is apportioned by a three factor formula taking into account not only gross receipts but also property and payroll in this state and elsewhere. A corporate taxpayer who objects that the § 12-218 method of apportionment attributes to this state “an undue portion of its net income” may file with its tax return a request that the commissioner of revenue services accept an alternate measure of apportionment. General Statutes § 12-221a; B.F. Goodrich Co. v. Sullivan, 26 Conn. Sup. 373, 376-77, 224 A.2d 754 (1966). The principal issue in this case is whether the plaintiff’s net income should be apportioned to Connecticut in accordance with the one factor formula of § 12-218 (a) or the three factor formula of § 12-218 (b).

The plaintiff, a wholly owned subsidiary of Schlumberger, Ltd., a Netherlands Antilles corporation, is a Texas corporation qualified to do business in forty-three states, including Connecticut. Nationwide, the plaintiffs business activity is twofold: it derives about 70 percent of its annual gross receipts from providing wireline services to the oil and gas industry, and about 30 percent of its gross receipts from the manufacture and sale of equipment and supplies, principally to other subsidiaries of Schlumberger, Ltd. In Ridgefield, Connecticut, the plaintiff operates a facility that conducts basic research for the development of wireline services technology.

In all the years in which the plaintiff has done business in Connecticut, it has calculated the amount of income apportionable to Connecticut for the purposes of the Connecticut corporation business tax in accordance with the formula set forth in § 12-218 (b). Pursuant to § 12-221a, the plaintiff filed petitions for an alternative method of apportionment with its tax returns for the years 1977 through 1982. Alleging that the statutory method of apportionment under § 12-218 (b) unfairly attributed an undue portion of its income to Connecticut, the plaintiff petitioned for an alternate, hybrid method of apportionment. It proposed that the 70 percent of its annual gross receipts derived from its wireline services be apportioned to Connecticut according to the one factor formula of § 12-218 (a), and that the remaining 30 percent of its gross receipts, attributable to its manufacture and sale of personal property, be apportioned according to the three factor formula of § 12-218 (b).

In the spring of 1981, the defendant notified the plaintiff that its petitions for this alternate method of apportionment had been denied. In the administrative proceedings that ensued, the plaintiff urged the defendant to interpret § 12-218 to place income from its wireline services within subsection (a) rather than within subsection (b). The defendant determined, however, after a hearing held pursuant to General Statutes § 12-236, that such income was derived from the use of tangible property, and hence was fairly apportionable to Connecticut in accordance with the three factor formula of § 12-218 (b). The defendant’s decision did not address the question whether § 12-218 authorized the use of a hybrid method of apportionment.

The plaintiff thereafter took a timely appeal to the trial court pursuant to General Statutes § 12-237. As in the earlier administrative proceedings before the defendant, the plaintiff argued for a hybrid method of apportionment to permit the plaintiff to use the § 12-218 (a) apportionment formula for its wireline services and the § 12-218 (b) apportionment formula for its manufacture and sale of personal property. In two separate counts of its complaint, the plaintiff claimed that such a result was warranted either as: (1) a proper construction of the text of § 12-218; or (2) an equitable alternative to § 12-218 whose denial was an abuse of the defendant’s discretion under § 12-22la.

The trial court sustained the plaintiff’s appeal, concluding that the income from the plaintiff’s wireline services fell within the ambit of § 12-218 (a). Without determining what relief might “be equitable,” as § 12-237 permits, the court remanded the case to the defendant “for the purpose of making a fair apportionment in the light of this decision.” In its memorandum of decision, the court explained that, pursuant to its § 12-221a authority, the defendant might either determine that all of the plaintiff’s net income should be apportioned according to the one factor formula of § 12-218 (a), or that the 70 percent/30 percent manner of apportionment originally requested in the plaintiff’s petitions was the proper and equitable measure of its Connecticut tax liability.

Both parties have appealed from the judgment of the trial court. The defendant urges us to uphold its administrative ruling that the plaintiff does not qualify for § 12-218 (a) apportionment. The plaintiff’s cross appeal urges us to hold that, since 70 percent of its income is apportionable under § 12-218 (a), its entire income is eligible for such an apportionment as a matter of law, thus obviating an administrative remand.

Before we can reach the merits of these competing claims about the construction of § 12-218 in the circumstances of this case, we must resolve a preliminary disagreement concerning the scope of our review of these claims. The plaintiff argues for the applicability of the principle that questions of the propriety of the imposition of a tax must be resolved in favor of the taxpayer. The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352 (1971). The defendant maintains, to the contrary, that, because the plaintiff sought discretionary relief under § 12-221a, its claim comes under the rule that deductions and exemptions from otherwise taxable income are considered a matter of legislative grace and are thus strictly construed against the taxpayer. Commissioner v. Sullivan, 356 U.S. 27, 28, 78 S. Ct. 512, 2 L. Ed. 2d 559 (1958); The B.F. Goodrich Co. v. Dubno, supra, 8-9; Yaeger v. Dubno, 188 Conn. 206, 212, 449 A.2d 144 (1982).

The plaintiff acknowledges, as it must, that its administrative petitions were framed as requests for discretionary consideration of an alternative method of tax apportionment. That administrative posture is not significant, according to the plaintiff, for three reasons. First, administrative regulations contained in instructions on the corporation business tax return require taxpayers who have any income whatsoever derived from the manufacture, sale or use of tangible property to file their tax returns using the § 12-218 (b) formula. Second, there is no statute other than § 12-221a on which a taxpayer can rely to challenge the applicability of the § 12-218 (b) formula to its business. Third, the plaintiff’s § 12-22la petitions, in asking for a hybrid apportionment formula, were seeking an interpretation of its existing statutory rights under § 12-218 rather than the discretionary displacement of § 12-218 by an alternative formula. In the context of the trial court proceedings in this case, we agree with the plaintiff that its appeal was not limited to a review of the defendant’s alleged abuse of discretion.

The plaintiff’s appeal to the trial court was taken, not under the Uniform Administrative Procedure Act, which excludes tax appeals; General Statutes § 4-186; but under § 12-237. As the trial court held, in a ruling which the defendant’s appeal does not challenge, a tax appeal pursuant to § 12-237 affords a taxpayer a trial de novo. See Practice Book § 3088 (b) (now § 4095 [b]); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 303, 397 A.2d 1367 (1978); Yale University v. New Haven, 169 Conn. 454, 465, 363 A.2d 1108 (1975); OBrien v. Board of Tax Review, 169 Conn. 129, 130-31, 362 A.2d 914 (1975). In that trial de novo, the plaintiff asked the trial court, in the first count of its complaint, to determine, as a matter of statutory construction, whether the nature of the plaintiff’s wireline services entitled it to apportion 70 percent of its income to Connecticut in accordance with the one factor formula of § 12-218 (a). The plaintiff itself apparently recognized that this aspect of its complaint did not entirely track the discretionary nature of the petitions that it had filed at the administrative level, because the plaintiff’s second count addressed an alleged abuse of administrative discretion. Whether the plaintiff’s enlargement of the administrative scope of reference was proper is an issue that we need not decide. If indeed it was an enlargement, the record before us gives no indication that the defendant challenged the procedural propriety of the first count in the trial court, and no such claim of procedural impropriety has been made in the defendant’s present appeal to this court. The trial court’s memorandum of decision makes it entirely clear that the court in fact undertook to interpret § 12-218 rather than to inquire into the allegation of abuse of administrative discretion on the part of the defendant. Vested with full power, under § 12-237, to “grant such relief as may be equitable,” the trial court in this case certainly had plenary authority to adjudicate the statutory merits of the plaintiff’s claim. Our review of the judgment of the trial court must be on similar terms.

We note, further, that the defendant has suggested no avenue, other than the one taken in this case, by which a taxpayer can challenge a regulatory interpretation of § 12-218 with which the taxpayer disagrees. Under § 12-237, a taxpayer may not seek judicial relief without having first sought a ruling from the defendant commissioner. The defendant has issued, so far as this record discloses, no regulations permitting a taxpayer to contest its § 12-218 liability other than by recourse to § 12-221a, and no statute other than § 12-221a is, on its face, applicable. This court has repeatedly insisted that a taxpayer wishing to contest the legality of its tax assessments must follow prescribed statutory procedures. Norwich v. Lebanon, 200 Conn. 697, 708-12, 513 A.2d 77 (1986); Hartford v. Faith Center, Inc., 196 Conn. 487, 490-92, 493 A.2d 883 (1985); National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985).

We therefore conclude that the choice of a proper apportionment formula in this case is a question of the statutory construction of § 12-218 in which the plaintiff taxpayer is entitled, if the statute is ambiguous, to a construction in its favor. We agree with the trial court, furthermore, that the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference. Board of Education v. Board of Labor Relations, 201 Conn. 685, 698-99, 519 A.2d 41 (1986); Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980); Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979). Bearing these principles in mind, we now turn to the merits of the present appeal and cross appeal.

The dispositive issue of statutory construction is whether the trial court erred in concluding that the income that the plaintiff earns in the 70 percent of its business that consists of wireline services is income defined by § 12-218 (a) as “derived from business other than the manufacture, sale or use of tangible personal or real property.” (Emphasis added.) The parties now agree that the proper characterization of the income attributable to the plaintiffs wireline services determines how the plaintiffs entire net income is to be apportioned to this state. See Regs., Conn. State Agencies, Department of Revenue Services, § 12-218-2 (b). If income from wireline services should be apportioned to Connecticut in accordance with the three factor formula of § 12-218 (b), then the defendant will prevail in his appeal; if, to the contrary, income from these services falls within the one factor formula of § 12-218 (a), then the plaintiff will prevail in its cross appeal. Although a hybrid formula might pass muster as an alternate apportionment method, subject to discretionary approval under § 12-221a, no such issue is presented by this appeal.

The plaintiffs wireline services provide its customers in the oil and gas industry with information and advice about the economic viability of drilling sites. The trial court’s memorandum of decision describes these services as follows: “Wireline services are performed by plaintiff’s engineers lowering a specially designed sensoring instrument on an armored electrical cable, called a wireline, down a hole, drilled in a location where oil or gas is suspected, to various depths to measure geological characteristics, such as density, and fluid, mineral and chemical contents of rock formations. The measurements are transmitted, via the wireline, to a mobile laboratory, located at the well site, where they are recorded on a magnetic tape and on a graph. The data has little significance, except as it is analyzed by plaintiff’s engineers, who apply to it mathematical formulae and ultimately determine whether or not the location contains oil or gas in amounts feasible to produce. Plaintiff’s customers pay plaintiff for this advice about their sites.”

The trial court determined that the test for determining whether income was, or was not, “derived from the manufacture, sale or use of tangible personal or real property” was to inquire into the nature of the taxpayer’s business. A mercantile or manufacturing company, on this analysis, would be governed by the three factor apportionment formula of § 12-218 (b), while a service company would be governed by the one factor formula of § 12-218 (a). Such a result followed, the court reasoned, because the legislature could not have intended the phrase “use of tangible . . . property” in § 12-218 to be taken literally, when a literal reading would disqualify every modern enterprise that employs tangible property such as typewriters, word processors, copying machines, computers and telephones in the course of its business operations. The court noted that a 1933 commission study concerning a legislative precursor of § 12-218 had described the one factor apportionment formula as applicable “largely to miscellaneous financial and service corporations.” See Report of Connecticut Temporary Commission to Study the Tax Laws of the State and to Make Recommendations Concerning their Revision (1934). It also found persuasive a similar characterization in J. McNeil & A. Hunt, Connecticut Taxation of Corporations (3d Ed. 1970) p. 43. Finally, the court noted that, according to the defendant’s past practice, service businesses such as multistate stock brokerage and business consulting firms had been permitted to file § 12-218 (a) returns. Considering the plaintiff’s wireline services to be analogous to the business operations of brokers and business consultants, the court determined that the plaintiff’s services qualified for § 12-218 (a) treatment.

The crucial question raised by this analysis is whether it is accurate to say that the wording of § 12-218 (a), i.e., “income derived from business other than the . . . use of tangible personal . . . property” is a surrogate for “income derived from a service business.” The defendant maintains that the trial court’s interpretation finds no support in the language of § 12-218. The proper reading, he urges, is to distinguish between businesses in which the use of tangible property is inconsequential, whose income is to be apportioned according to § 12-218 (a), and businesses in which the use of tangible property is essential, whose income is to be apportioned according to § 12-218 (b). Acknowledging that this language is not itself unambiguous and therefore must be strictly construed against the defendant, we nonetheless agree with the defendant that a test that looks to the particular characteristics of an individual taxpayer more appropriately captures the intent of § 12-218 than one that generalizes about the usual characteristics of mercantile, manufacturing or service enterprises. If indeed few modern businesses today operate without relying on the use of tangible property as an essential part of their businesses, and the class of § 12-218 (a) taxpayers is shrinking, it is for the legislature, and not for the courts, to decide whether the reach of the three factor formula of § 12-218 (b) has become too all inclusive.

Our final task then is to determine, from the undisputed facts at trial, whether the use of tangible property was an essential or an inconsequential aspect of the plaintiff’s wireline services income. In support of its position that personal property was extensively used by the plaintiff, the defendant points to the testimony of David Sims, an engineer, wireline coordinator, and corporate official of the plaintiff. Sims described the process by which the plaintiff collects data at the well site as involving the use of complicated and sophisticated equipment that the plaintiff has developed for this purpose. Without this sophisticated equipment, Sims testified, the plaintiff would not be in business. In its well site operations, the plaintiff relies to a great extent on mechanical or electrical engineers rather than on geologists. This record, according to the defendant, distinguishes the plaintiffs use of property from those of other firms that rely on personal property for the recording and analysis of data and demonstrates that the use of tangible property is essential to the plaintiffs business.

Without contesting the factual accuracy of this description of the operation of its wireline services, the plaintiff urges us to look, as a matter of law, to the standard for an inconsequential use of tangible property that we employed in Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 410 A.2d 457 (1979). That case involved the applicability of the state sales and use tax; General Statutes § 12-406 et seq.; to the rental of a commercial motion picture film by a national distributor to a local exhibitor. The plaintiffs there argued that the rental was exempt from taxation under General Statutes § 12-412 (k) which provided an exemption for “personal services transactions . . . which involve sales as inconsequential elements for which no separate charges are made.” Columbia Pictures Industries, Inc. v. Tax Commissioner, supra, 610. In construing that statute, we concluded that the question was whether consequential services were entwined with tangible personal property. Id., 612. We resolved that question against the taxpayer by invoking a standard of “whether the buyer intended to buy an individual’s skills or a tangible end product of those skills.” Id.

As the plaintiff points out, the trial court relied on a standard similar to that of Columbia Pictures in arriving at its conclusion about the nature of the plaintiffs business. In its memorandum of decision, the court stated: “Although plaintiff uses sophisticated instruments at specific locations what it sells and what its clients pay for is plaintiffs opinion on whether or not there is sufficient oil or gas on clients’ sites to warrant full scale production.” Although we have no reason to doubt the validity of this description, we are not persuaded that the Columbia Pictures standard accurately measures the plaintiff’s liability when the question is apportionment of income under the terms of § 12-218.

The taxable transactions that are addressed by the sales tax exemption under § 12-412 (k) and the apportionment formulae under § 12-218 are different. The sales tax exemption involves a contractual transfer of property between two persons that necessarily implicates their mutual expectations. The apportionment of taxes to measure the taxable presence of a multistate corporation in this state is, however, governed by the taxpayer’s own use of property, and has nothing to do with the expectations of the taxpayer’s clients. We agree with the defendant, therefore, that the Columbia Pictures test is not an appropriate measure of whether the plaintiff’s use of property is inconsequential for the purposes of § 12-218.

We conclude that the defendant has in fact established that the plaintiff’s operation of its wireline services involves tangible personal property as an essential part of the plaintiff’s business. The relevant evidence is that the plaintiff relies on its own sophisticated and specially designed equipment not only at its on-site mobile laboratory, where wireline measurements are recorded and analyzed, but also in the very process of collecting the underlying data on which the analyses depend. In these circumstances, we hold that, because the plaintiffs net income is “derived from the . . . use of tangible . . . property,” that income is properly to be apportioned to this state in accordance with the three factor formula of § 12-218 (b).

There is error, the judgment of the trial court is set aside and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other justices concurred.

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

       “[General Statutes] Sec. 12-218. apportionment of net income. Any taxpayer which is taxable both within and -without this state shall apportion its net income as provided in this section. For purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business and is subject to a net income tax, a franchise tax for the privilege of doing business, or a corporate stock tax, of if such state has jurisdiction to subject such taxpayer to such a tax, regardless of whether such state does, in fact, impose such a tax. The net income of the taxpayer shall be apportioned as follows: (a) Such income, when derived from business other than the manufacture, sale or use of tangible personal or real property, shall be apportioned -within and without the state by means of an apportionment fraction, the numerator of which shall represent the gross receipts from business carried on within Connecticut and the denominator shall represent the gross receipts from business carried on everywhere, except that any gross receipts attributable to an international banking facility, as defined in section 12-217, shall not be included in the numerator or the denominator; (b) when derived from the manufacture, sale or use of tangible personal or real property, the portion thereof attributable to business within the state shall be determined by means of an apportionment fraction to be computed as the sum of the property factor, the payroll factor and twice the receipts factor, divided by four. . . .”
      Although the apportionment formula of § 12-218 (b) was amended in 1981; Public Acts 1981, No. 81-411, § 2; the parties are agreed that this change does not alter their respective arguments in the present controversy.

       The third formula, contained in General Statutes § 12-218 (c), pertains only to motor bus companies.

       “[General Statutes] Sec. 12-221a. petition foe alternate method of apportionment. If the method of apportionment prescribed in sections 12-218,12-218a and 12-219a, as administered by the commissioner of revenue services and applied to the business of any company, unfairly attributes to this state an undue proportion of its net income or additional tax base, such company may petition for an alternate method of apportionment by filing with its return to the commissioner a statement of its objections and of such other proposed method of apportionment as it believes proper and equitable under the circumstances, accompanied by supporting details and proofs. The commissioner, within a reasonable time thereafter, shall notify the company whether the proposed method is accepted as reasonable and equitable and, if so accepted, shall adjust the return and tax accordingly. With respect to any company subject to the tax imposed under this chapter, the commissioner, at any time within three years after the due date for the filing of such return, or in the case of a completed return filed after such due date, within three years after the date on which such return was received by the commissioner, which return is based on the method of apportionment provided for in said sections 12-218,12-218a and 12-219a, may change such method if, in his opinion, such method has operated or will operate so as to subject the company to taxation on a lesser portion of its net income or additional tax base than is equitably attributable to this state and shall thereupon proceed to assess and collect taxes in accordance with such method as so changed by him.”

       Overall, Connecticut’s statutes for the apportionment of the income of multistate corporations resemble in broad outline the statutory pattern of corporate income taxes in other states, including those that have adopted the Uniform Division of Income for Tax Purposes Act. See generally 1 J. Hellerstein, State Taxation (1983) c. 9. Only Connecticut, however, uses allocation formulae which turn on whether a taxpayer does or does not derive income from the manufacture, sale or use of tangible property. The plaintiff has raised no question about the constitutionality of our statutory criteria for apportionment, which comply on their face with the requirements of the due process and the commerce clauses of the United States constitution. U.S. Const., art. I, § 8, cl. 3, and amend. V; Container Corporation of America v. Franchise Tax Board, 468 U.S. 159, 164, 103 S. Ct. 2933, 77 L. Ed. 2d 545 (1983); Mobil Oil Corporation v. Commissioner of Taxes, 445 U.S. 425, 436-37, 100 S. Ct. 1223, 63 L. Ed. 2d 510 (1980); Moorman Mfg. Co. v. Bair, 437 U.S. 267, 272-73, 277, 98 S. Ct. 2340, 57 L. Ed. 2d 197 (1978).

       “[General Statutes] See. 12-236. hearing by commissioner. Any taxpayer, aggrieved by the action of the commissioner or his authorized agent in fixing the amount of any tax, penalty or interest provided for by this part, may apply to the commissioner, in writing, within thirty days after the notice of such action is delivered or mailed to it, for a hearing and a correction of the amount of the tax, penalty or interest so fixed, setting forth the reasons why such hearing should be granted and the amount in which such tax, penalty or interest should be reduced. The commissioner shall promptly consider each such application and may grant or deny the hearing requested. If the hearing is denied, the applicant shall be notified thereof forthwith. If it is granted, the commissioner shall notify the applicant of the time and place fixed for such hearing. After such hearing the commissioner may make such order in the premises as appears to him just and lawful and shall furnish a copy of such order to the applicant. The commissioner may, by notice in writing, at any time within three years after the date when any return of any taxpayer has been due, order a hearing on his own initiative and require the taxpayer or any other individual whom he believes to be in possession of relevant information concerning the taxpayer to appear before him or his authorized agent with any specified books of accounts, papers or other documents, for examination under oath.”

       The plaintiffs complaint also had a third count concerning the allocation of gains and losses relating to abandoned well site equipment. The trial court did not address that issue, and it is not before us on this appeal.

       The judgment of the trial court was final, for the purposes of an appeal to this court, despite its order of remand, because the court had plenary authority under General Statutes § 12-237 fully to adjudicate all of the issues raised by the plaintiffs complaint. For this reason, this case is distinguishable from recent cases such as Schieffelin & Co. v. Deptartment of Liquor Control 202 Conn. 405, 521 A.2d 566 (1987), and Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154-57, 520 A.2d 186 (1987).

       Section 12-218-2 of the Regulations of Connecticut State Agencies, Department of Revenue Services, effective July 21,1982, provides: “derivation op income oe loss, (a) Whether or not the net income or loss of a company is derived from the manufacture, sale or use of tangible personal or real property shall be determined by examining its business wherever carried on and not just by examining its business carried on within this state.
      “(b) The primary derivation of net income or loss shall be controlling. If the net income or loss of a company is primarily derived from the manufacture, sale or use of tangible personal or real property and only secondarily derived from an activity not involving the manufacture, sale or use of tangible personal or real property, the net income or loss of such company shall be deemed to be derived from the manufacture, sale or use of tangible personal or real property.”

       Courts in other jurisdictions have resisted attempts by both taxpayers. and taxing authorities to avoid three factor apportionment of multistate business income. See, e.g., Roger Dean Enterprises, Inc. v. State Department of Revenue, 387 So. 2d 358, 363 (Fla. 1980); St. Johnsbury Trucking Co. v. State, 118 N.H. 209, 212, 385 A.2d 215 (1978). Under § 9 of the Uniform Division of Income for Tax Purposes Act, the basic apportionment formula is a three factor fraction that takes into account the taxpayer’s property, payroll and sales. Only if that formula does not fairly represent the extent of the taxpayer’s activity in the taxing state may the taxpayer, under § 18, petition for an alternate method of apportionment.