author: Borden, J.

text:
    Richard A. Fahy v. Thelma Ann Fahy
    (14647)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.
    Argued June 8—
    decision released August 31, 1993

      Wesley W. Horton, with whom were Alexandra Davis, Raynald B. Cantin and, on the brief, Michael S. Taylor, legal intern, for the appellant (plaintiff).

      Joel M. Ellis, with whom was Catherine P. Kligerman, for the appellee (defendant).
   Borden, J.

The plaintiff, Richard A. Fahy, appeals from the judgment of the trial court granting the motion of the defendant, Thelma Ann Fahy, for an increase in her periodic alimony. The plaintiff claims that the trial court: (1) incorrectly concluded that Public Acts 1990, No. 90-213, § 46 (P.A. 90-213, § 46), permits the modification of an award of periodic alimony made prior to October 1, 1987, the effective date of Public Acts 1987, No. 87-104 (P.A. 87-104), without proof by the moving party of a substantial change in circumstances that was not contemplated at the time of the dissolution of the marriage; and (2) abused its discretion by basing its finding of a substantial change in circumstances on (a) changes in the plaintiffs gross income rather than his net income, and (b) an erroneous calculation of his net income. Although we agree with the plaintiffs first claim as a matter of statutory interpretation, as a matter of common law adjudication, we reach the same result as the trial court. We also agree with the plaintiff’s second claim. Accordingly, we reverse the judgment of the trial court and remand the case for a new hearing.

The facts are not in dispute. The plaintiff is a psychiatrist, and the defendant works part-time in a jewelry store. The twenty year marriage of the parties was dissolved on October 6, 1980. At the time of the dissolution, the trial court, Hon. Samuel S. Googel, state trial referee, granted the defendant unallocated alimony and child support of $24,000 per year, to be reduced to alimony of $21,600 per year when the parties’ youngest child reached the age of eighteen. The child reached eighteen in 1985.

In this proceeding in 1991, the plaintiff moved to reduce, and the defendant moved to increase, the award of alimony. The trial court, Norko, J., denied the plaintiff’s motion, and the plaintiff has not appealed from that denial. The trial court granted the defendant’s motion and increased the award of alimony by $9600 per year.

The trial court concluded that General Statutes (Rev. to 1991) § 46b-86 (a) eliminated the requirement that in order to modify alimony because of changed circumstances, such circumstances must not have been contemplated at the time the judgment of dissolution was rendered. In this regard, the trial court concluded that the language added to § 46b-86 (a) by P.A. 90-213, § 46; see footnote 4; was intended to clarify that the elimination of the contemplation requirement applies to judgments of dissolution rendered both before and after October 1, 1987, and applied to orders of alimony as well as to orders of child support.

The trial court also determined that the plaintiffs financial condition had undergone a substantial change in circumstances. The trial court based this determination upon a comparison of the plaintiffs gross income as a sole medical practitioner in 1980, namely, $95,000, with the gross income of the group of health care providers with whom he had practiced in 1991, namely, $644,964. In addition, the trial court compared the plaintiffs net income in 1980 with his net income in 1991. In that comparison, however, the trial court used posttax income for the 1980 figure and pretax income for the 1991 figure. This appeal followed.

I

The plaintiff first claims that the trial court incorrectly concluded that P.A. 90-213, § 46, as incorporated into § 46b-86 (a); see footnote 4; applies to awards of alimony. He argues that the plain language of that portion of § 46b-86 (a) affects only orders of support, and that such an interpretation of the statute is consistent with the broad legislative purpose intended by the enactment of P.A. 90-213, § 46.

We agree with the plaintiff that P.A. 90-213, § 46, applies only to orders of child support. Under the plain language of the statute, support orders, whether entered before or after October 1, 1987, may now be modified without regard to whether the change of circumstances had been contemplated at the time of dissolution. We also conclude, however, apart from P.A. 90-213, § 46, but using that public act as a source of our own judicial power, that as a matter of common law the modification of alimony orders should be treated the same as support orders are required to be treated pursuant to P.A. 90-213, § 46. Accordingly, absent a written stipulation or prior judicial order to the contrary, the trial court, when faced with a request for modification of an alimony award, should exercise its discretion without regard to whether the change of circumstances had been contemplated at the time of the previous award.

Some statutory history is helpful to an understanding of this issue. Before the enactment, in 1987, of P.A. 87-104, in order to secure a modification of an order of either periodic alimony or child support, the moving party was required to establish that: (1) under General Statutes (Rev. to 1985) § 46b-86 (a), there had been a substantial change in circumstances affecting one of the parties; and (2) under a common law judicial gloss on that statute, the substantial change in circumstances was not contemplated at the time of the dissolution of the marriage. Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); see also Darak v. Darak, 210 Conn. 462, 465, 556 A.2d 145 (1989). The enactment of P.A. 87-104, the gist of which remains as part of the first sentence of § 46b-86 (a); compare footnotes 3 and 4; repealed the second part of that test.

In Darak, however, we held that the amendment to the modification statute applied only prospectively, that is, to modifications of dissolution judgments that had been rendered on or after October 1, 1987, the effective date of the public act. Darak v. Darak, supra, 469. Central to our rationale for this holding was the absence of a specific indication of a legislative intent to “disrupt settled expectations” by applying a substantive change retrospectively. Id. Under Darak, in order to modify an award of alimony or an order of support, a party seeking a modification of a judgment of dissolution rendered before October 1, 1987, was required to establish that the change of circumstances had not been contemplated at the time of the judgment; and a party seeking to modify such a judgment rendered on or after October 1, 1987, was not required to establish that the change of circumstances had not been so contemplated.

The legislature again amended § 46b-86 (a) by P.A. 90-213, § 46, which took effect on July 1, 1990. That public act stated: “After the date of judgment, modification of any child support order issued before or after the effective date of this act may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution.”

The enactment of P.A. 90-213, § 46, was followed by our decision in Turner v. Turner, 219 Conn. 703, 595 A.2d 297 (1991). In Turner, we considered the retroactivity of a different 1990 public act, namely, Public Acts 1990, No. 90-188. Id., 712-16. In the course of that discussion, we recognized that the legislature had, at the same session, enacted P.A. 90-213, § 46, in order “to reverse the effect of our judgment in Darak v. Darak, supra.” Turner v. Turner, supra, 717. We stated that “[t]he legislature’s prompt action in adopting the expressly retrospective language of P.A. 90-213, § 46, unambiguously clarifies its original intention that P.A. 87-104 applies to all alimony and support orders, regardless of the date on which they were entered.” (Emphasis added.) Id. It is the validity of the reference to “alimony” orders in Turner that is at issue in this case, because the trial court understandably followed that language in entering its order in this case.

A fair reading of Turner, however, makes clear that our reference to alimony was dictum, because neither an alimony award nor P.A. 90-213, § 46, was at issue in that case. In light of this dictum, therefore, this case requires us to decide for the first time whether § 46b-86 (a), as amended by P.A. 90-213, § 46, provides for modification of an award of alimony that had been made prior to October 1, 1987, the effective date of P.A. 87-104, without a showing of a substantial change in circumstances that was not contemplated at the time of the dissolution order. Upon plenary consideration of this issue, we agree with the plaintiff that, as a matter of statutory interpretation, the phrase, “child support order,” as used in P.A. 90-213, § 46, cannot be read to mean alimony as well. We therefore conclude that § 46b-86 (a) does not provide that an order of periodic alimony that had been entered prior to October 1, 1987, may be modified without proof that the requisite change of circumstances had not been contemplated at the time the order was entered.

“ ‘We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. . . ” Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). “ ‘In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ” Id., 460.

The plain language of the statute indicates that the modification of a preexisting “child support order” no longer requires that the substantial change in circumstances have been contemplated at the time of the entry of the initial order of support. Absent from the statutory language, however, is any concomitant reference to an order of alimony. Because the terms “support” and “alimony” are terms that “have acquired a peculiar and appropriate meaning in the law”; General Statutes § 1-1 (a); they are to be construed in accordance with that technical meaning. As a matter of statutory interpretation, therefore, we simply cannot stretch the meaning of “child support order” as used in P.A. 90-213, § 46, to include “alimony.” Furthermore, the legislative history of P.A. 90-213, § 46, is silent regarding the legislative intent behind the use of the phrase “child support order.” We can find no justification in that history, therefore, for reading that phrase in other than its technical sense. In light of the legislative language and history, therefore, we conclude that P.A. 90-213, § 46, applied exclusively to child support orders, and did not include alimony.

That conclusion, however, does not end our inquiry. The plaintiff argues that the legislature, by its use of the term “child support order” and by the absence of any concomitant reference to alimony orders, intended to create a different set of rules for support and alimony orders. We are not convinced.

It is true that, in interpreting statutes we have on occasion read specific statutory references to indicate a legislative intent to exclude, by implication, other related potential referents. See, e.g., Roto-Rooter Services Co. v. Department of Labor, 219 Conn 520, 525, 593 A.2d 1386 (1991). Furthermore, if in this case either the explicit language or the legislative history of P.A. 90-213, § 46, had indicated such a legislative intent, we would be required to respect that implication, and we would be precluded from reaching a result by way of common law adjudication that was contrary to that intent. Neither the statutory language nor that legislative history, however, indicates such an intent.

We proceed, therefore, to a more fundamental principle of adjudication. Just as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent; see Sutton v. Lopes, 201 Conn. 115, 120, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); courts must discharge, their responsibility, in case by case adjudication, to assure that the body of the law— both common and statutory—remains coherent and consistent. That principle leads us to conclude that, as a matter of the common law rather than as a matter of statutory interpretation, alimony orders should be treated similarly to the way that child support orders are now required to be treated pursuant to P. A. 90-213, §46.

In another context, we have previously used statutes as a useful source of policy for common law adjudication, particularly if there was a close relationship between the statutory and common law subject matters. See New England Savings Bank v. Lopez, 227 Conn. 270, 281-82, 630 A.2d 1010 (1993) (use of the Uniform Commercial Code as a statutory source for real property transactions); Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983) (same); Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 455 A.2d 857 (1983) (same); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980) (same); see also Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 453-54, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986) (use of statute governing rights of successor corporation following merger as precedent for determining rights of partnership as successor entity following a merger). “Statutes are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time. . . . More often, the issue is rather to what extent a statute is itself a source of policy for consistent common law development.” E. Peters, “Common Law Judging in a Statutory World: An Address,” 43 U. Pitt. L. Rev. 995, 998 (1982); see generally J. Landis, “Statutes and the Sources of Law,” Harvard Legal Essays (R. Pound ed. 1934) p. 213; G. Calabresi, A Common Law for the Age of Statutes (1982). We consider this case to be a similarly appropriate instance for this adjudicative technique.

Alimony and support have historically been treated by both the legislature and the courts of Connecticut as “entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).” Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). This principle recognizes a very practical truth: orders of periodic alimony and orders of child support, although resting upon different legal bases—namely, financial maintenance of the former spouse and financial maintenance of children—in most cases must be crafted so that, conjunctively, they provide for fair and reasonable financial maintenance of the remaining family unit. Indeed, in this case the two were originally combined and unallocated. It would be irrational, and would render the body of our marital dissolution law incoherent, to require a trial court, when determining whether to modify child support and alimony orders entered prior to October 1,1987, to treat the two orders differently with respect to whether the change of circumstances had been contemplated at the time of the dissolution. Moreover, given the fungibility of money, such a result would elevate form over substance, because it would create the incentive for a trial court, in an effort to reach a fair overall financial award, to tailor modifications in such a way that the statutorily required disparity is rendered a nullity. We do not believe that to be a wise course of adjudication or policy.

It is appropriate, moreover, to use the policy expressed by P.A. 90-213, § 46, as a source of common law adjudication in this case because the source of the “noncontemplation rule” was, in its inception, a judicial, common law gloss on the modification statute. That source is the statement of this court in Grinold v. Grinold, supra, 195: “[T]he changed circumstances requiring a modification must not have been contemplated by the parties at the time of the entry of the decree . . . . 2A Nelson, Divorce & Annulment (2d Ed.) § 17.07.” Significantly, we did not rely upon either the language or the purpose of our modification statute in arriving at that conclusion. The only authority cited for the proposition was Nelson's treatise, which in turn, relied only on a Washington case for its authority. Thus, we regard the Grinold rule, which our courts consistently followed until the enactment of P.A. 87-104, as an example of common law adjudication, rather than as an authoritative interpretation of § 46b-86.

Given the practical connection between alimony and support, the sound policy reasons for having similar rules for the treatment of alimony and support, and the absence of any preclusive reference in § 46b-86 (a) to alimony, we conclude that, as a matter of common law adjudication, it is appropriate to extend elimination of the noncontemplation of the circumstances requirement to orders of alimony issued prior to October 1, 1987. Accordingly, we hold that awards of alimony even though made prior to October 1,1987, are subject to modification upon a showing of a substantial change in circumstances of either party. Whether such change in circumstances was contemplated at the time of the dissolution is not relevant to a subsequent modification. The trial court, therefore, was correct in its ultimate treatment of the contemplation requirement with respect to the alimony award.

II

The plaintiff next claims that the trial court abused its discretion by finding a substantial change in circumstances in his financial condition. The plaintiff argues that the trial court, in making this determination, incorrectly compared his gross income in 1980 with the gross income of a group of professionals with whom he was associated in 1991. The plaintiff also claims that the trial court incorrectly relied on a faulty comparison of his net income: comparing posttax income in 1980 with pre-tax income in 1991. We agree with each of these contentions.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. Gallo v. Gallo, [184 Conn. 36, 50, 440 A.2d 782 (1981)].” McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). The foundation for this standard is that the trial court is in an advantageous position to assess the personal factors significant to a domestic relations case. See Corbin v. Corbin, 179 Conn. 622, 624, 427 A.2d 432 (1980). “This appeal presents one of the rare cases in which the trial court abused its broad discretion . . . by making crucial findings [that are] not reasonably supported by the facts.” McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982).

Ordinarily, the standard for determining alimony, including modifications thereto, is net income available rather than gross income. Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979); Wanatowicz v. Wanatowicz, 12 Conn. App. 616, 619, 533 A.2d 239 (1987); Bronson v. Bronson, 1 Conn. App. 337, 340, 471 A.2d 977 (1984). The record is clear that, in finding a substantial change in circumstances in the plaintiffs finances, the trial court relied on a comparison of his gross income in 1980 with the gross income of the group of practitioners with whom he practiced in 1991, and on a comparison of the plaintiff’s posttax income in 1980 with his pretax income in 1991. These comparisons were faulty because they treated different methods of describing the plaintiff’s income as though they were the same. In addition, the comparisons were constructed in such a way as to underestimate the plaintiff’s income in 1980 and overestimate his income in 1991. The use of this methodology constitutes an abuse of discretion.

The judgment is reversed and the case is remanded for a new hearing on the defendant’s motion for modification.

In this opinion the other justices concurred.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Public Acts 1990, No. 90-213, § 46, amended General Statutes (Rev. to 1989) § 46b-86 (a) by inserting the following italicized language into the statute: “After the date of judgment, modification of any child swpport order issued before or after the effective date of this act may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution.” The act became effective on July 1, 1990.

       Public Acts 1987, No. 87-104, repealed General Statutes (Rev. to 1987) § 46b-86 (a), and replaced it with the following: “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. After the date of judgment, modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.” The act became effective on October 1,1987.

       General Statutes (Rev. to 1991) § 46b-86 provides in relevant part: “modification of alimony or support orders and judgments. (a) 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 or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1,1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” (Emphasis added.) The emphasized language is the codification of Public Acts 1990, No. 90-213, §46.

       General Statutes § 1-1 provides in part: “words and phrases, (a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”

       We note that for federal income tax purposes, alimony is deductible from income by the payor and taxed as income to the recipient, while support is neither deductible nor taxable. Internal Revenue Code, 26 U.S.C. §§ 71, 215. We think that this tax treatment strengthens the rationale for having similar rules governing alimony and support, because often trial courts will, either explicitly or implicitly, craft financial orders in light of this differing tax treatment.


source: Caselaw Access Project

author: Norcott, J. Callahan, J.,

license: Public Domain

text:
    State of Connecticut v. Charles Anderson
    (14626)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued April 29—
    decision released August 31, 1993

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom were John M. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a jury trial, the defendant, Charles Anderson, was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and of carrying a pistol without a permit in violation of General Statutes § 29-35. He was sentenced to a total effective sentence of twenty years, execution suspended after seventeen years, and three years probation. The defendant appealed to the Appellate Court, which affirmed the conviction. State v. Anderson, 28 Conn. App. 833, 614 A.2d 438 (1992). We then granted the defendant’s petition for certification to appeal limited to the following bifurcated question: “In the circumstances of this case, were the trial court’s instructions on self-defense (a) erroneous and (b) if erroneous, harmless?” State v. Anderson, 224 Conn. 908, 615 A.2d 1048 (1992). We reverse the judgment of the Appellate Court and direct that the case be remanded to the trial court for a new trial.

The following facts are relevant to this appeal. In the early morning of March 21, 1990, the victim, Albert Ashley, was involved in a craps game that included the defendant and another individual, “Cat” Bunkley, at an apartment in the Stowe Village housing development in Hartford. The game ended at approximately 2 a.m. when the victim had won all $1100 that had been wagered during the course of the game. Shortly after the game ended, the victim and the defendant became involved in an argument over money at the victim’s apartment. The defendant pulled a revolver from his coat and shot the victim in the right shoulder. As a result of the shooting, the victim’s spinal cord was damaged and he was left paraplegic.

The state and the defendant presented two different versions of how the shooting had come to pass. According to witnesses for the state, when the game ended, the defendant approached the victim and asked that the victim return some of the money the defendant had lost. The victim replied, “I’ll see what I can do.” Thereafter, the victim left to count his winnings in his own apartment across the street. Being concerned for his safety while he was carrying a large amount of cash, the victim went downstairs to the apartment of his friends, William and Kenneth Stewart, and asked them to escort him across the street.

The defendant and Bunkley met and followed the victim and the Stewarts across the street. Kenneth Stewart overheard the defendant ask the victim, “[D]o you have something for me?” Upon arriving at his apartment, the victim let himself and the Stewarts inside through a door that opened to the kitchen. The defendant and Bunkley were left to wait in the hallway.

Once in the apartment, the victim began to count his money and the defendant knocked on the door. When the victim opened the door, the defendant repeated his request for money. The victim told the defendant to wait until he had finished counting the money and closed the door again. The defendant proceeded to pound on the door and the victim again opened it and told the defendant to wait. When the victim attempted to close the door again, the defendant stuck his foot inside the doorway. The victim then went to light a cigarette over a stove located near the kitchen door where the defendant was standing. As he did this, the defendant pulled a revolver from his trench coat and shot the victim. The defendant then fled.

The defendant testified at trial and gave a different version of the events leading up to the shooting. He testified that one year prior to the shooting, the defendant had loaned the victim $150, which the victim had promised to repay within three days. After two weeks had gone by, the defendant demanded repayment and the victim responded that the defendant should not approach him about money any more. A few months later, the defendant and his fiancee, Joann Robinson, saw the victim as they were driving through Stowe Village. The defendant again asked the victim for the money he had borrowed. The victim revealed a pistol tucked in his waist and warned the defendant, “I’ll fuck you up if you ask me for this money again.” After this encounter, the defendant did not pursue the matter of the money again because he knew that the victim used drugs and that he had a reputation for violence.

The defendant further testified that, on the night of the shooting, he had watched but had not participated in the craps game. After the defendant had seen the victim win $1100 in cash, he decided to pursue once again the matter of the unpaid loan. The victim ignored the defendant’s request and, upon entering the Stewarts’ apartment downstairs, slammed the door in the defendant’s face. The defendant testified that he had waited for approximately twenty-five minutes outside the Stewarts’ apartment, and when the victim exited and began walking toward his apartment, the defendant followed with Bunkley.

The defendant testified that, when they arrived at the victim’s apartment, he had tried to persuade the victim to repay the loan. The victim entered his apartment and again slammed the door in the defendant’s face. Shortly thereafter, the Stewarts arrived and the victim let them enter the apartment. The defendant then moved into the threshold and again asked for his money. The victim responded, “Don’t ask me for that money no more or I’m going to fuck you up.” When the defendant asked him why he was being so unreasonable, the victim answered, “I’m going to show you why,” and then quickly reached for a nearby drawer located beneath a kitchen counter. The defendant testified that he had believed that the victim was under the influence of several intoxicants, and, because the victim had previously threatened him with a gun, he had believed that the victim was reaching for a gun. The defendant testified that he had shot the victim in order to defend himself.

The defendant requested that the trial court charge the jury on self-defense pursuant to General Statutes § 53a-19. As part of the charge on self-defense, the trial court defined the term “reasonable force” as “force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more.” The trial court also instructed the jury that “[t]he defendant, claiming a justification of self-defense, is permitted to use deadly force in two broad circumstances. He may justifiably use deadly force only if he reasonably believed that the other person was about to use deadly physical force or about to inflict great bodily harm. The law does not encourage the use of deadly force and in most circumstances, a person must retreat from the perceived harm, if he knows he could avoid the necessity of using force by retreating, if he is able to do so with safety.”

On the defendant’s appeal to the Appellate Court, the majority concluded that the trial court’s instructions on self-defense contained incorrect statements of law regarding two elements: (1) the duty to retreat “with safety”; and (2) the standard by which the jury was to evaluate the “reasonable force” that one may use to defend oneself. As to the instruction on the duty to retreat, the court stated that the failure to instruct the jury in accordance with the statutory language “with complete safety” contained in § 53a-19 “maybe improper.” State v. Anderson, supra, 28 Conn. App. 840. The court also concluded that the trial court’s instruction regarding “reasonable force” replaced the subjective-objective standard required by § 53a-19 with a strictly objective standard. Id., 838.

The majority of the Appellate Court nonetheless concluded that these errors were harmless beyond a reasonable doubt because it was not reasonably possible that the jury had been misled. The court stated that the jury could not have been misled by the instruction regarding the defendant’s duty to retreat because “[t]he term safety . . . necessarily entails complete safety and thus the absence of the word ‘complete’ from the trial court’s instructions was harmless beyond a reasonable doubt.” Id., 841. As to the instruction on “reasonable force,” the court noted that the case was factually similar to State v. Williams, 25 Conn. App. 456, 462-63, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991), and concluded that this error was harmless on the basis of the reasoning contained in that case.

The defendant claims that the Appellate Court properly concluded that the instruction on self-defense was erroneous, but that it improperly concluded that the erroneous instruction was harmless beyond a reasonable doubt. The defendant argues that the only contested issue in this case was whether the state had disproved the defendant’s assertion that he had acted in justifiable self-defense. The defendant contends that the erroneous instruction diluted the state’s burden of disproving the defense beyond a reasonable doubt, and for that reason, amounted to reversible error.

The state claims that the trial court’s instruction was not erroneous. The state argues that the trial court’s instruction on the duty to retreat, although not delivered in the verbatim language of § 53a-19, did not alter the substantive meaning of the statute. The state also argues that the trial court’s instruction, read as a whole, properly explained the manner in which the jury was to evaluate the defendant’s use of “reasonable force.” Alternatively, the state argues, even if these two portions of the instruction were erroneous, the error was harmless beyond a reasonable doubt. We agree with the defendant.

“ ‘[A] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.’ ” State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). A defendant who asserts a recognized legal defense, the availability of which is supported by the evidence, is entitled as a matter of law to a theory of defense instruction. State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); see also United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976). The standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. State v. Hall, 213 Conn. 579, 587, 569 A.2d 534 (1990); State v. Corchado, supra, 660.

We first consider the trial court’s instruction that, before justifiably using deadly physical force, the defendant had a duty to retreat if he could do so “with safety.” Section 53a-19 (b) (1) provides that retreat is necessary only if a person can do so “with complete safety.” (Emphasis added.) The Appellate Court majority concluded that the omission of the term “complete” from the trial court’s instruction regarding the duty to retreat did not alter the substantive meaning of the statute because “[t]he term safety . . . necessarily entails complete safety . . . .” State v. Anderson, supra, 28 Conn. App. 841. The dissenting opinion, Lavery, J., noted, however, that if there was no distinction between “safety” and “complete safety,” then the term “complete” would serve no purpose in the statute and would be surplusage. Id., 853.

We agree with the dissenting opinion that, for the purposes of the defense of self-defense, to say that there is no distinction between “safety” and “complete safety” runs contrary to our rules of statutory construction. In addition, the conclusion that the difference between “safety” and “complete safety” is significant comports with the development in the law of the duty to retreat as part of a claim of self-defense.

Although the legislative history is silent as to the significance of the term “complete safety,” we are guided by certain well established maxims of statutory construction. Penal statutes are to be strictly construed against the state, and the words and phrases contained in them are to be understood according to the commonly approved usage of the language. State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987). “In construing a statute, this court seeks to ascertain the intent of the legislature as it is expressed through the words actually used.” State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous.” (Citation omitted; internal quotation marks omitted.) Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985).

In light of these standards, we are not persuaded that the legislative use of the word “complete” as a modifier of the word “safety” has no independent significance. The word “complete” conveys a unique sense of finality. “The common meaning of the word ‘complete’ is ‘Filled up, with no part, item or element lacking.’ ” Loew’s, Inc. v. Wolff, 101 F. Sup. 981, 986 (S.D. Cal. 1951), aff’d, 215 F.2d 651 (9th Cir. 1954). “Complete” is defined in Webster’s Third New International Dictionary as “entire; perfect,” implying the inclusion of all that is needed for the fulfillment of something. For example, to have “complete” confidence in someone certainly imports more than simply having “confidence” in that person.

In the context of the self-defense statute, the use of the term “complete” with respect to the duty to retreat “with complete safety” cannot be ignored as legislative surplusage. If safety really meant complete safety, as the Appellate Court determined, the legislature would not have put the term “complete” into the statute. As the dissenting opinion in the Appellate Court correctly observed, “[a] commonsense reading of the statutory language indicates that the legislature intended that the state must meet the higher burden of showing that the defendant could have retreated with complete safety, not with mere safety.” State v. Anderson, supra, 28 Conn. App. 854 (Lavery, J., dissenting).

Our conclusion that the term “complete safety” within § 53a-19 (b) has distinct significance that is not subsumed in the term “safety” is also supported by the history of the duty to retreat element of self-defense. It is generally agreed that one who can safely retreat is not required to do so before using nondeadly force in self-defense. A tension among competing interests exists, however, if deadly force is required, and raises the question of whether the defender has a duty to retreat. See 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 5.7 (f), p. 659. One early English authority wrote, regarding the common law on the duty of retreat, that “[t]he minuteness of the law contained in the authorities . . . is a curious relic of a time when police was lax and brawls frequent, and when every gentleman wore arms and was supposed to be familiar with the use of them.” Sir J. Stephen, A Digest of the Criminal Law (7th Ed. 1926) pp. 202-203 n.4.

Today, the majority of American jurisdictions holds that a person who is not the initial aggressor need not retreat, even though he can do so safely, before using deadly force upon an assailant whom he reasonably believes will kill him or do him serious bodily harm. 1 W. LaFave & A. Scott, supra, pp. 659-60. This position rests on the rationale that a person who is not the initial aggressor should be permitted to stand his ground in the face of a deadly assault, and that to retreat may be considered to be cowardly and dishonorable. See J. Beale, “Retreat from a Murderous Assault,” 16 Harv. L. Rev. 567, 577 (1903).

Connecticut is among a minority of jurisdictions, however, that has followed the position advanced by the Model Penal Code that, before using deadly force in self-defense, an individual must retreat. Retreat is required, however, only if it can be achieved with complete safety. The underlying policy of the duty to retreat is that the protection of human life has a higher place in the scheme of social values than the value that inheres in standing up to an aggression. 2 P. Robinson, Criminal Law Defenses (1984) § 131 (d), pp. 84-85.

The Model Penal Code § 3.04 (2) (b) (ii) states that the use of deadly force in self-defense is not justifiable if “the actor knows that he can avoid the necessity of using such force with complete safety by retreating . . . .” The “complete safety” language of the Code is used in all of the states that follow the minority position regarding the duty to retreat. The commentaries to the Code implicitly recognize the nuanced, but significant, difference between “complete safety” and “safety” by stating that “[wjith a standard of this nature, it is to be expected that all doubts will be resolved in the actor’s favor, and that such moral claim as there is to standing one’s ground can easily be recognized in the doubtful cases.” (Emphasis added.) I A.L.I., Model Penal Code and Commentaries (1985) § 3.04, p. 55.

The Model Penal Code, thus, reconciled the value of preserving life with the need to act in self-defense by imposing a duty to retreat, and limited that duty with an absolute condition, that retreat need be made only if it could be done with “complete safety.” We are persuaded that our legislature’s use of the term “complete safety” in § 53a-19 (b) evinces its determination that, in balancing community interests, the retreat rule should be governed by the considerations ultimately embodied in § 3.04 (2) (b) (ii) of the Model Penal Code. Our conclusion that the term “complete safety” connotes a standard that is more absolute than mere “safety,” therefore, is further supported by these considerations.

We conclude that the term “complete safety” in § 53a-19 (b) is indicative of a higher burden on the state when the defense of self-defense is raised than that suggested by the term “safety.” The Appellate Court improperly concluded, therefore, that the failure of the trial court to instruct that the defendant need retreat only if he could do so in “complete safety” did not substantively alter the meaning of § 53a-19. We conclude that the omission of the word “complete” altered the meaning of the statute and was therefore erroneous.

The omission of the term “complete” from the instruction on the duty to retreat, in the circumstances of this case, also made it reasonably possible that the jury was misled. State v. Corchado, supra, 663. The only contested issue in this case was whether the state had disproved the defendant’s claim of self-defense. There was testimony that the victim was known as a violent individual and drug user, that he had threatened the defendant with a gun before, and that the defendant had previously been robbed at gunpoint in the Stowe Village complex by an unknown individual. The defendant testified at trial that he had believed that he did not have time to retreat and that, had he attempted to retreat, the victim would have shot him in the back. Thus the question of whether the defendant could have retreated in complete safety was central to his claim of self-defense pursuant to § 53a-19.

The defendant was entitled to have the trial court correctly instruct the jury on the element of his self-defense claim regarding his duty to retreat. “ ‘ “[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” ’ State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980).” State v. Fuller, supra, 279. In this case, we conclude that it is reasonably possible that the charge did not perform this function and that the jury was misled. Although the Appellate Court concluded that the instruction was harmless beyond a reasonable doubt, we are not persuaded beyond a reasonable doubt of its harmlessness. We, therefore, conclude that the instructional error requires a new trial.

Because our conclusion that the instruction on the duty to retreat was harmful error is dispositive of this appeal, we need not reach the issue of whether the “reasonable force” portion of the trial court’s instruction on self-defense was erroneous and, if so, whether that error was harmless. The state concedes that the instruction that “reasonable force” is “that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more,” failed to direct the jury to evaluate the defendant’s subjective belief as to the amount of force necessary. The state argues, nonetheless, that this instruction, in the context of the entire self-defense instruction, could not have misled the jury into applying a purely objective standard, and therefore did not amount to reversible error.

Although we do not reach this issue, we do emphasize again that the correct standard regarding the test for the degree of force in self-defense is the subjective-objective one set forth in State v. Corchado, supra. In Corchado we noted that § 53a-19 “focuses on the person, here the defendant . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact .... This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim.” (Emphasis in original.) Id., 663; see also State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984) (“The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. . . . The defendant’s belief ultimately must be found to be reasonable.”). We also note in passing that there is nothing in that test that refers to a “person of ordinary intelligence.” We discourage the use of instructional language that strays from the Corchado subjective-objective standard in any significant manner.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case for a new trial.

In this opinion Peters, C. J., Borden and Berdon, Js., concurred.

Callahan, J.,

dissenting. I respectfully dissent. I would affirm the majority opinion of the Appellate Court.

       General Statutes § 53a-59 (a) (1) provides: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 29-35 provides in relevant part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       The state argues that the defendant’s claim that the trial court’s instruction on self-defense was erroneous was not properly preserved at trial and that the defendant cannot prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We note that the Appellate Court resolved the Golding question by concluding that the trial court’s “incorrect statement of the law” on self-defense was harmless beyond a reasonable doubt, thereby failing to satisfy the fourth prong of Golding. State v. Anderson, 28 Conn. App. 833, 838, 614 A.2d 438 (1992). Although the certified question does not explicitly refer to the defendant’s challenge to the instruction as a Golding claim, because the defendant did not challenge the instruction at trial, review of the defendant’s claim pursuant to Golding is inherent in our certification of the jury instruction issue.

       About two weeks later, the Hartford police located the defendant driving on Albany Avenue in Hartford. The defendant had on his person a .380 automatic pistol, clip and ammunition for which he had no permit. This weapon was the one that had been used by the defendant in the shooting.

       At trial, Robinson corroborated the defendant’s version of the exchange with the victim at the Stowe Village development. She also testified that the victim had a reputation as a dangerous person with a criminal record.

       The victim was shot with a .380 semiautomatic pistol that the defendant had illegally purchased. The defendant testified during cross-examination that he had purchased the gun after being robbed at gunpoint in Stowe Village and finding an intruder in his home on Oakland Terrace in Hartford.

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       At a later point in the instruction, the trial court again defined reasonable force as “the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances.”

       The trial court repeated the defense and again stated: “[T]hat person must retreat from the perceived harm if he can do—can avoid the necessity of using force by retreating and with safety.”

       The state argues that each of these two portions of the trial court’s instruction on self-defense, therefore, fails to meet the third prong of State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .”

       Indeed, some jurisdictions specifically have codified the rule that a person need not retreat before using nondeadly force in self-defense. See Del. Code Ann. tit. 11 § 464; Haw. Rev. Stat. § 703-304; Neb. Rev. Stat. § 28-1409; N.J. Stat. Ann. § 2C:3-4; Pa. Cons. Stat. Ann. tit. 18, § 505.

       The competing interests inherent in the duty to retreat are expressed in two early cases of the United States Supreme Court. In 1895 the court approved the notion of “standing one’s ground” when it wrote: “[A] true man who is without fault is not obliged to fly from an assailant who by violence or surprise maliciously seeks to take his life or to do him enormous bodily harm.” Beard v. United States, 158 U.S. 550, 561, 15 S. Ct. 962, 39 L. Ed. 1086 (1895).
      One year later, in Allen v. United States, 164 U.S. 492, 497, 17 S. Ct. 154, 41 L. Ed. 528 (1896), the same court sustained the following jury instruction: “ ‘If [the defendant] is attacked by another in such a way as to denote a purpose to take away his life, or to do him some great bodily harm ... he may lawfully kill the assailant. . . . Provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling him without killing him, if it be in his power.’ ” The court distinguished the Beard case, stating that “ft]he general duty to retreat instead of killing when attacked” was not at issue in Beard. Id., 498.

       “complete safety” language appears in the following penal codes as well as in that of Connecticut: Ala. Code § 13A-3-23; Alaska Stat. § 11.81.335; Ark. Stat. Ann. § 5-2-607; Del. Code Ann. tit. 11, § 464; Haw. Rev. Stat. § 703-304; Me. Rev. Stat. Ann. tit. 17-A, § 108; Neb. Rev. Stat. § 28-1409; N.H. Rev. Stat. Ann. § 627:4; N.J. Stat. Ann. § 2C:3-4; N.Y. Penal Law § 35.15 (McKinney); Pa. Cons. Stat. Ann. tit. 18, § 505.
      We note that in virtually all of those jurisdictions espousing the minority position on the retreat rule, the rule is not applicable to a peace officer or a person assisting him or her in the performance of police duties. 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 5.7 (f), p. 660 n.64. Furthermore, in Connecticut, a person is not required to retreat if he is in his home or place of work and was not the initial aggressor. General Statutes § 53a-19 (b) (1).

       One commentator on this subject argued that “[a] really honorable man, a man of truly refined and elevated feeling, would perhaps always regret the apparent cowardice of a retreat, but he would regret ten times more, after the excitement of the contest was past, the thought that he had the blood of a fellow-being on his hands.” J. Beale, “Retreat from a Murderous Assault,” 16 Harv. L. Rev. 567, 581 (1903).


author: Norcott, J.

text:
    State of Connecticut v. Edward F. Johnson
    (14629)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued April 30—
    decision released August 31, 1993

      Mario Paul Mikolitch, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, Mitchell S. Brody, assistant state’s attorney, and Russell P. Zentner, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a jury trial, the defendant, Edward F. Johnson, was convicted of operating a motor vehicle while under the influence in violation of General Statutes § 14-227a (a) (l), and evasion of responsibility in operating a motor vehicle in violation of General Statutes § 14-224 (b). The defendant was sentenced to a total effective term of imprisonment of eight months and was fined $1100 plus fees and costs. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the conviction. State v. Johnson, 28 Conn. App. 708, 613 A.2d 1334 (1992). We granted certification to appeal limited to two issues: “(1) Was the Appellate Court correct in refusing to review the defendant’s claim that the trial court improperly denied his motion to dismiss which claimed that a peace officer does not have probable cause to effectuate a warrantless arrest for a misdemeanor committed outside the presence of that officer? [and] (2) In order to establish a violation of General Statutes § 14-224 (b), must the state prove that the defendant knew that the accident in which he was involved caused ‘injury or damage to property?’ ” State v. Johnson, 224 Conn. 911, 617 A.2d 168 (1992). We affirm the judgment of the Appellate Court.

The facts in this case are adequately set forth in the opinion of the Appellate Court. “On April 23, 1990, Catherine Mangels was driving her car on Route 1 in Westbrook when it was struck by a car driven by the defendant. As a result of the collision, the cars became hooked together. Robert Pandora, who had been driving behind Mangels and had witnessed the collision, helped unhook the two cars. Pandora then drove Man-gels’ car into the parking lot of a nearby restaurant.

“The defendant drove his car to the back of the restaurant lot. Pandora got out of Mangels’ car, went to where the defendant had driven, and told him that a bystander had called the police. The defendant responded that he would not wait for the police, and then tried to leave the restaurant lot. The defendant was having trouble getting his car into gear, so Pandora reached into the defendant’s car, turned off the ignition and removed the keys. Pandora went into the restaurant with the keys, and the defendant followed him in an unsuccessful attempt to retrieve his keys. When the police arrived, Pandora was walking out of the front door of the restaurant with the defendant behind him. The defendant, upon seeing the police, retreated into the restaurant bathroom and locked himself in a bathroom stall.

“Pandora led Trooper Michael Polansky of the state police to the bathroom the defendant had just entered. Polansky identified himself and asked the defendant to come out of the stall. After refusing several times, the defendant finally staggered out. The defendant smelled of alcohol, had bloodshot eyes and was slurring his speech. Pandora identified the defendant as the operator of one of the cars involved in the collision. Polansky asked the defendant if he had been involved in the collision and the defendant replied that he had not. Polansky then asked the defendant to take a number of field sobriety tests. After the defendant refused to take the requested tests, Polansky arrested him without a warrant.

“On the way out of the restaurant, the defendant acknowledged that he was the owner of one of the cars that had been involved in the collision. At the police station, Polansky asked the defendant to take a breathalyzer test. He refused. The jury subsequently convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and of evading responsibility.” State v. Johnson, supra, 28 Conn. App. 709-11.

I

Prior to trial, the defendant filed a motion to dismiss the information against him on the ground that there was no probable cause for his arrest because the arresting officer had not been an eyewitness to the misdemeanor with which the defendant was charged. After an evidentiary hearing, the trial court denied the defendant’s motion. The defendant later filed a motion for articulation of the trial court’s decision. In its articulation, the trial court stated that there had been probable cause to arrest the defendant for driving under the influence and evading responsibility and rejected the defendant’s claim that a police officer must be an eyewitness before he can arrest a misdemeanant.

On appeal to the Appellate Court, the defendant claimed that the trial court had improperly denied his motion to dismiss. The defendant argued that General Statutes § 54-lf (a), which governs warrantless misdemeanor arrests and permits a warrantless arrest to be made “on the speedy information of others,” expands the common law rule that a peace officer cannot arrest a person for a misdemeanor committed outside of his presence. The defendant claimed that this expansion of the common law violated the fourth amendment to the United States constitution and article first, §§8 and 9, of the Connecticut constitution, and therefore that the arrest was illegal and required dismissal of the charges against him. The Appellate Court concluded, however, that the defendant had failed to provide any analysis of either the federal or state constitutional claims, and the court, therefore, refused to address them.

The defendant argues that the Appellate Court improperly declined review of his constitutional claim on the basis of inadequate briefing. Even assuming, without deciding, that the Appellate Court improperly refused to review this claim, we conclude that the underlying law is so clear that there is no basis for the defendant to prevail on this argument. The defendant argued in the Appellate Court that, by virtue of the illegal arrest, the trial court should have granted his motion to dismiss. Under both federal and state constitutional law, however, an illegal arrest does not operate as a per se jurisdictional barrier to a defendant’s subsequent prosecution. See State v. Fleming, 198 Conn. 255, 259-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), and cases cited therein. In Fleming, we held that “[wjhere the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” Id., 263; see also State v. McPhail, 213 Conn. 161, 169-70, 567 A.2d 812 (1989).

In the present case, there is no indication that the allegedly illegal arrest tainted the defendant’s trial. The defendant does not claim that evidence was seized as a result of the arrest and was later used to obtain a conviction. Indeed, the defendant maintains that his claim involves only his motion to dismiss, and acknowledges that he never moved for the suppression of evidence introduced at trial. On this record, there would be no basis for the defendant to prevail on his argument that the trial court improperly denied his motion to dismiss. The issue of whether the Appellate Court improperly declined to reach this claim is, therefore, academic.

II

At trial, the trial court instructed the jury regarding the charge of evasion of responsibility in operating a motor vehicle as follows: “The state must prove both, that there was an accident that caused damage to another’s property, and that the defendant knew of such accident. It is only necessary that the defendant knew that he was involved in an accident. Knowledge by the defendant that the collision caused damage to property of another is unnecessary.”

The defendant claimed in the Appellate Court that the trial court had improperly instructed the jury that it was not necessary that the defendant knew that the accident had caused damage to property. The defendant contended that, under the provisions of § 14-224 (b), the state must prove that the defendant had knowledge, not only of the accident, but also of any resulting property damage. The Appellate Court rejected this argument on the ground that the defendant’s interpretation of the statute would thwart its purpose. It held that the “only knowledge required is knowledge that there has been an accident.” State v. Johnson, supra, 28 Conn. App. 717.

Section 14-224 (b) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury ... to any other person or injury or damage to property shall at once stop and render such assistance as may be needed . . . .’’In this court, the defendant reiterates his argument that § 14-224 (b) unambiguously requires an individual charged with evading responsibility to have knowledge of the accident and of the damage caused by the accident. Therefore, he argues, the Appellate Court improperly construed the statute to require only knowledge of the accident, and not knowledge of the damage as well. We disagree.

“It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. Green v. Ward, 178 Conn. 634, 637-38, 425 A.2d 128 (1979); Sillman v. Sillman, 168 Conn. 144, 147, 358 A.2d 150 (1975); 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 45.05.” All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). Where the language of a statute is clear and unambiguous, reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). It is the duty of the court to “interpret statutes as they are written”; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and not “ ‘by construction read into statutes provisions which are not clearly stated.’ ” Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 550 A.2d 8 (1988).

If the statutory language is unclear, the intent of the legislature may be ascertained by looking to the legislative history and to the purpose that the statute was intended to serve. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391, 618 A.2d 1340 (1993). “ ‘In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). A statute, of course, is not to be interpreted to thwart its purpose. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978).

Although arguing that the plain language of the statute is clear and that no construction is therefore required, the defendant has himself pointed to an ambiguity in § 14-224 (b) by raising the issue of whether the statute requires knowledge of both an accident and resulting damage before an individual can be found guilty of evading responsibility. A review of the history and the purpose of this statute, however, supports the construction given to it by the Appellate Court and defeats the defendant’s argument.

Prior to 1957, § 14-224 (b) read in pertinent part as follows: “Each person operating a motor vehicle who knowingly causes . . . injury or damage to property shall at once stop” and render assistance. General Statutes (1949 Rev.) § 2410. In 1957, our legislature changed that language to provide that “[e]ach person operating a motor vehicle who is knowingly involved in an accident which causes . . . injury or damage to property shall at once stop” and render assistance. General Statutes (1958 Rev.) § 14-224 (a). When the legislature amends the language of a statute, it is presumed that it intended to change the meaning of the statute and to accomplish some purpose. Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 538 A.2d 202 (1988); Heffernan v. Slapin, 182 Conn. 40, 49, 438 A.2d 1 (1980).

Although the legislative history behind this amendment is silent as to the impetus for the change, a commonsense reading of the amendment indicates an intent that a person may be found guilty of evading responsibility if that person is knowingly involved in an accident, regardless of that person’s knowledge of injury or damage. We are persuaded, therefore, that this change in statutory language captured the legislative intent that § 14-224 (b) be a mandatory “stop, ascertain and assist” statute, which provides criminal penalties for the failure to do so. We conclude, therefore, that the Appellate Court properly construed liability under § 14-224 (b) so as to require knowledge of the accident alone.

This interpretation is consistent not only with its legislative history but also with the purposes of statutes on evading responsibility. The purpose of the statute on evading responsibility is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself. The essence of the offense of evading responsibility is the failure of the driver to stop and render aid. See 15 D. Blashfield, Automobile Law and Practice (3d Ed.) § 490.92, p. 437. Knowledge of the precise nature of the injury or damage serves no useful function in the fulfillment of the principal purpose of the statute. We agree with the reasoning of the Illinois Supreme Court in People v. Nunn, 77 Ill. 2d 243, 252, 396 N.E.2d 27 (1979), in which it stated, in interpreting its statute on evading responsibility, “[w]e do not . . . hold that it is necessary for the prosecution to show also that the accused knew that injury or death resulted from the collision. To require this additional proof would impose a burden that would be unreasonably difficult to sustain and would tend to defeat the public interest which is served by requiring persons involved in vehicle collisions to stop and provide identification and other personal information and to be available to render assistance if required.”

Our legislature, by its amendment of § 14-224 (b), has eliminated the requirement of knowledge of injury or property damage, and to construe the statute otherwise would read into the statute a provision that was not intended. See Glastonbury Co. v. Gillies, supra, 179. We conclude, therefore, that, to establish a violation of § 14-224 (b), the state is not required to prove that the defendant knew that the accident in which he was involved caused injury or damage to property. The Appellate Court correctly affirmed the trial court’s instructions on the elements of this offense.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 14-227a (a) provides: “operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-224 (b) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator’s license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator’s license number and registration number.”

       General Statutes § 54-1f (a) provides: “For purposes of this section, the respective precinct or jurisdiction of a deputy sheriff or a special deputy sheriff shall be wherever he is required to perform his duties. Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others, provided that no constable elected pursuant to the provisions of section 9-200 shall be considered a peace officer for the purposes of this subsection, unless the town in which such constable holds office provides, by ordinance, that constables shall be considered peace officers for the purposes of this subsection.”

       The defendant’s brief in the Appellate Court stated that this statutory enlargement of the common law “may raise constitutional issues.”

       Central to this holding was the premise that “ ‘[d]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.’ ” State v. Fleming, 198 Conn. 255, 263, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 342 (1986), quoting Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 2d 541 (1952). This conclusion is in accord with the rule in the federal courts; see United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); and with a host of other state court jurisdictions. See State v. Fleming, supra, 262-63 n.7, for a listing of state courts that have followed the federal rule.

       We note that the trial court recognized that the defendant would have had difficulty overcoming the holding of State v. Fleming, 198 Conn. 255, 259-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), and that the case would bar dismissal of the information. The trial court, however, made no mention of Fleming when the defendant requested articulation of the basis of the denial of his motion to dismiss.

       Although we are not bound by the decisions of lower Connecticut courts, we note that, shortly after the amendment to General Statutes § 14;224, every Connecticut Circuit Court decision but one concluded that the controlling element of § 14-224 is knowing involvement in an accident and that, as a result, it is the obligation of the driver to stop and ascertain whether there has been any resulting injury or damage. See State v. Herbst, 2 Conn. Cir. Ct. 236, 238, 197 A.2d 550 (1963); State v. Fournier, 2 Conn. Cir. Ct. 588, 592, 203 A.2d 245 (1964); State v. Mulvey, 3 Conn. Cir. Ct. 297, 304-305, 213 A.2d 228 (1965); compare State v. Richardson, 1 Conn. Cir. Ct. 199, 201-202, 181 A.2d 609 (1962).

       The Illinois statute on evading responsibility, 111. Rev. Stat., c. 95 1/2, para. 11-401 (a), provides: “The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 11-403. . . .”