author: Hull, J. Shea, J.,

text:
    State of Connecticut v. Christofe P. Belle
    (13825)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Santaniello, Js.

      Argued January 11 and May 1
    decision released June 5, 1990

      Suzanne Zitser, assistant public defender, with whom, on the brief were G. Douglas Nash, public defender, and Thomas Ullmann, assistant public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Christofe P. Belle, was charged in a substitute information with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 and burglary in the second degree in violation of General Statutes § 53a-102. After a jury trial, he was acquitted of the charged offenses, but was convicted of criminal trespass in the second degree; General Statutes § 53a-108; a lesser included offense of burglary in the second degree. The trial court thereupon sentenced the defendant to an unconditional discharge. On appeal from this judgment, the defendant challenges: (1) the trial court’s admission into evidence of the testimony of three state’s witnesses whose statements had been destroyed by the investigating police department prior to the commencement of trial; and (2) the trial court’s refusal to instruct the jury on the affirmative defense to criminal trespass in the second degree. We initially heard arguments in this case in January, 1990. Thereafter, we requested, sua sponte, further argument en banc. We now affirm the judgment of the trial court.

The jury could reasonably have found the following facts. During the summer of 1986, M and T, female students at Southern Connecticut State University (SCSU) in New Haven, were living on the fifth floor in Chase Hall, a residential dormitory on the SCSU campus. At approximately 6 p.m. on August 1, 1986, the two women left Chase Hall to walk to Skidder’s, a nearby bar and dancing establishment. Upon discovering that Skidder’s was not yet open for the evening, they decided to go first to Pizza Pal, where they shared a pizza and a pitcher of beer, and then to a bar, the New West Cafe.

While at the New West Cafe, M and T met three men, the defendant, Jacques and Fran. They spoke with the men and learned during their conversation that the men were originally from France but were presently living in Branford where they worked as pastry chefs. At approximately 10 p.m., M and T decided to walk to Skidder’s and made informal arrangements to meet the three men there later.

M and T saw the three men thereafter at Skidder’s and joined them for conversation and dancing. At approximately 11:30 p.m., M left Skidder’s with Fran and took him to her room at Chase Hall dormitory. M used her key to obtain entry through the back door. Once in M’s room, M and Fran removed their clothes and engaged in consensual sexual intercourse. They then returned to Skidder’s at approximately midnight.

At some point during the course of the evening at Skidder’s, T had a conversation with a college friend who had formerly lived in Chase Hall. They discussed the fact that, without a key, entry into Chase Hall could be achieved by scaling the building and climbing into the dormitory through an upper floor window. During this conversation, Jacques was standing behind T and overheard the discussion.

At closing time, approximately 2 a.m., M and T left Skidder’s, having made no arrangements subsequently to meet the defendant, Fran and Jacques. When the women arrived at Chase Hall, they entered the back door of the locked dormitory with a key and went upstairs into the fifth floor lounge to eat sandwiches that they had just purchased. The women went to their respective rooms in the dormitory at approximately 2:30 a.m.

M went to bed wearing a tee shirt and underwear and left her door unlocked and ajar. M testified that she was a very deep sleeper, but that she was awakened at 4 a.m. by two men, one of whom she recognized as Fran and the other as the defendant, standing in her room. She testified that first Fran and then the defendant proceeded to engage in sexual intercourse with her. According to M, she was “in and out of sleep” during the entire incident.

T testified that she was awakened at approximately 4 a.m. by several knocks on her door. Unlike M, T stated that she had locked the door to her room prior to getting into bed. When she heard the knocks, she got up and found Jacques standing at her door. He told her that he wanted to see her. When asked how he had gotten into the building, Jacques responded: “Through the window like you said.” T became concerned when she learned that the defendant and Fran were in M’s room, so she decided to check on M. Jacques followed T and eventually cut ahead of her. He then opened the closed door to M’s room, said “Oops, sorry,” closed the door, and then returned with T to T’s room. T testified that she did not hear any yelling or screaming from M’s room. When T got back into her room, Jacques made sexual advances that T refused.

T then saw a shadow in the bathroom adjoining her room. When T asked who it was and got no answer, she walked over to the bathroom and saw Fran standing there in his underwear. She started yelling at Fran and then ran to M’s room. When T threw open M’s door, the defendant, who was not clothed, was either on top of M or had just gotten off of her. T became extremely upset and yelled at Fran and the defendant. She subsequently escorted all three of the men down the elevator and out of the building.

T then returned to M’s room and found M crying, standing by her closet. M told T that the men had hurt her and that she wanted T to call the police. T immediately called the SCSU police who arrived within five minutes. They interviewed M and T and then took them to Yale-New Haven Hospital where M was examined and released.

Officer Thomas Buell of the campus police conducted an examination of the exterior windows of Chase Hall and found an open window with no screen in the third floor lobby and also found a sneaker print on the windowsill. He testified that during the six years that he had been an officer at the university, it was “quite a common practice for students and nonstudents alike” to enter Chase Hall through the windows. Later in the morning of August 2, 1986, Detective Robert Coffey of the New Haven police department arrived at Chase Hall to begin the department’s investigation into the alleged crimes.

Although the defendant did not testify at trial, a statement that he had given Coffey while he was being held in custody on unrelated charges was introduced at trial. The defendant had admitted to Coffey that he had been in the dormitory on the SCSU campus on August 2, 1986, and that he thought his friend had engaged in sexual acts with a young woman in the dormitory. The defendant denied in his statement to Coffey, however, that he had engaged in any such activities with the woman. At trial, during cross-examination of M and during his closing argument, the defendant suggested that M had consented to any sexual activities that had occurred during the early morning hours of August 2, 1986.

I

The defendant first claims that the trial court should not have admitted into evidence the testimony of M, T and Coffey. The defendant’s argument is based on the fact that the New Haven police destroyed statements of these witnesses prior to the commencement of trial. According to the defendant, the state’s consequent failure to produce the statements pursuant to General Statutes § 54-86b and Practice Book § 752 et seq. so prejudiced him that the court’s refusal to strike the trial testimony of the three witnesses requires reversal of his conviction. We do not agree.

The following facts are relevant to the defendant’s claim. On the morning of August 2,1986, M and T were interviewed by Coffey. During the course of these interviews, the detective took notes on the back of an “8-1/2 by 11 scrap paper folded into quarters.” He later incorporated the information from these notes into his police report and discarded the paper containing the written notes.

On August 4 and 9,1986, Coffey took tape recorded statements from T and M, respectively. Five days after T gave her statement, she reviewed a transcription of that statement, made minor changes in the transcription and then signed it. M reviewed and signed, without making changes, a transcription of her tape recorded statement three days after she had given the statement. In both instances the tapes were erased subsequent to their transcription pursuant to a routine police procedure of erasing and reusing such tapes.

On June 6,1987, the defendant was arraigned in New Haven on unrelated charges. Coffey had called M to ask her to come to the court house to see if she could identify the defendant as her assailant. M identified the defendant as one of the men who allegedly had sexually assaulted her on August 2, 1986. Subsequent to making the identification, M gave a tape recorded statement to Coffey regarding the identification procedure. The tape was transcribed and was then erased. M did not review this latter transcription until the pretrial hearing one year later when she adopted it as her own.

Because the destruction of the detective’s notes and of M’s and T’s tape recorded statements would render impossible the state’s compliance with General Statutes § 54-86b and Practice Book § 752 et seq., the defendant filed a pretrial motion requesting that the court exclude at trial the testimony of M, T and Coffey. A hearing on this motion was held prior to the commencement of trial, during which testimony was heard from M, T, Coffey and another police officer involved in the investigation of the crimes with which the defendant was charged. The testimony elicited at the pretrial hearing concerned the events of August 1 and 2,1986, as well as the making and destruction of Coffey’s notes and M’s and T’s tape recorded statements.

After hearing the testimony, the trial court ruled on the admissibility of the witnesses’ testimony at trial. The court determined that Coffey’s field notes were not “statements” under Practice Book § 749, and thus were not subject to disclosure pursuant to Practice Book § 752. The court determined that the tapes, however, were subject to disclosure, and that they had been intentionally destroyed by the police. Accordingly, the court shifted the burden to the state to establish that the defendant had not been prejudiced by the destruction and absence of the tape recorded statements. The court then concluded that the state had met its burden of proof by establishing by a fair preponderance of the evidence that the defendant had not been prejudiced by the erasures. As a result of the trial court’s ruling on the defendant’s motion to exclude, the state called M, T and Coffey to testify at trial.

The defendant challenges three aspects of the court’s ruling concerning the admissibility of the testimony of these three witnesses: (A) the trial court’s determination that Coffey’s field notes were not subject to disclosure pursuant to Practice Book § 752; (B) the trial court’s application of the more probable than not standard to the harmless error inquiry; and (C) the trial court’s conclusion that the state had satisfied its burden of showing the harmlessness of its failure to produce the notes and tapes.

A

We turn first to the question of whether Coffey’s field notes were subject to disclosure under Practice Book § 752. “ ‘Under some circumstances, [Practice Book] § 752 authorizes a defendant to obtain for the purpose of cross-examining a witness the officer’s record of an interview.’ State v. Anonymous (83-FG), 190 Conn. 715, 734, 463 A.2d 533 (1983). ‘Practice Book § 749 limits the disclosures governed by §§ 748 through 755 to two categories of materials: “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.” ’ State v. Myers, 193 Conn. 457, 470, 479 A.2d 199 (1984). ‘[A] police officer’s interview notes may be subject to disclosure for use by the defendant in cross-examining the witness, if the officer’s notes meet either of § 749’s alternate definitions of a statement. The notes may also be discoverable following the officer’s own testimony if they are “signed or otherwise adopted.” ’ Id.; State v. Anonymous (83-FG), supra.” State v. Hinton, 196 Conn. 289, 299-300, 493 A.2d 836 (1985).

The defendant contends that Coffey’s testimony during the pretrial hearing revealed that his notes were “statements” as defined by our rules of practice. We do not agree. First, the record does not indicate that the notes were “statements” of M and/or T. Coffey testified that during his initial interviews with M and T, he did take notes. He testified further, however, that he had not recorded M’s and T’s words verbatim and that he had not shown those notes to M and/or T to be signed or otherwise adopted by them. See State v. Myers, supra, 471. Second, the notes were not Coffey’s “statements.” Coffey testified that, during the initial interviews, he had written “[ojccasional reminders” to himself on an “8-1/2 by 11 scrap paper folded into quarters” and that he had discarded the notes after writing his report. The notes were not signed and the record does not indicate that they were “otherwise adopted.” See id.; State v. Anonymous (83-FG), supra, 734. Accordingly, the trial court correctly ruled that Coffey’s notes were not subject to disclosure pursuant to Practice Book § 752.

B

There is no question that the tapes were “statements” of M and T and were thus subject to the applicable disclosure provisions. Practice Book § 749 (2). Due to the police destruction of these tapes, however, the state was unable at trial to comply with the mandates of General Statutes § 54-86b and Practice Book § 752 et seq. We have recently set forth the analysis to be applied in such cases. “[I]f a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’ testimony is not required. [State v. Williamson, 212 Conn. 6, 15-16, 562 A.2d 470 (1989)].” State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990). Rather, under such circumstances, “it is appropriate that the court weigh ‘ “the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. State v. Myers, [supra, 469]; State v. Shaw, [185 Conn. 372, 386, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982)].” State v. Santangelo, [205 Conn. 578, 587-88, 534 A.2d 1175 (1987)]; State v. Mullings, [202 Conn. 1, 10, 519 A.2d 58 (1987)].’ State v. Williamson, supra, 14. This approach gives broad discretion to the trial court. Id. Where . . . the destruction of a witness’ statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness. Id., 18. ‘[T]he proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule.’ Id., 19.” State v. Johnson, supra, 172.

The appropriate standard to be applied to that harmless error inquiry depends upon the particular circumstances of the case. See id., 173-75; State v. Williamson, supra, 22-23. The trial court in the present case determined that the state need only prove that it was more probable than not that the defendant was not prejudiced by the nonproduction of the tape recorded statements. The defendant contends that the trial court should have required the state to prove harmlessness beyond a reasonable doubt. The basis of the defendant’s claim is his contention that his opportunity to impeach M and T was so impaired by the nonproduction of their pretrial statements that his constitutional right to confront the witnesses against him was violated. We are not persuaded that, under the facts here presented, the defendant suffered a constitutional violation as a result of the state’s failure to produce the tape recorded statements.

We have recognized that, under certain circumstances, the state’s failure to produce material to which the defendant is entitled under General Statutes § 54-86b and Practice Book § 752 may adversely affect a defendant’s ability to cross-examine a state’s witness and thereby infringe upon his constitutional right of confrontation. State v. Johnson, supra, 173-74. In such a case, a court would be warranted in strictly applying the harmless error doctrine to require the state to prove harmlessness beyond a reasonable doubt. Id.; State v. Williamson, supra. In determining the effect of the state’s nonproduction on a defendant’s opportunity to cross-examine, we have considered such factors as the trial or reviewing court’s access to the unproduced material, the declarant’s adoption of a counterpart transcript within a short time after making the statement, and the extent to which the defendant’s conviction rested on the testimony of the witness whose pretrial statement had been destroyed. See State v. Johnson, supra, 174-75 (the fact that the witness reviewed and signed within three days a typed transcription of his statement and the fact that the defendant’s conviction did not rest solely on the testimony of that witness were major factors in applying the more probable than not standard to the harmless error inquiry); State v. Williamson, supra (the fact that the victim-witness did not review the transcription of her most detailed statement for seven months and the fact that the defendant’s conviction rested solely on the testimony of the victim-witness were major factors in determining that the stricter standard of proof would not have been unwarranted).

In the present case, T reviewed and signed the typed transcription of her tape recorded statement within five days of having given the statement. Likewise, M reviewed and signed within three days the transcription of the first tape recorded statement that she had given. Although M did not review the transcription of her second statement until the day of the hearing, more than one year after having made the statement, the defendant’s confrontation rights were not adversely affected by the lapse in time. The content of M’s second statement was limited to the procedure by which M had identified the defendant as her alleged assailant. Since the defendant’s identity was not an issue at trial, cross-examination concerning M’s second statement was of little value to the defendant. Furthermore, in the present case, the defendant was found guilty of criminal trespass in the second degree, a conviction that did not rest solely on the testimony of T, or M, or a combination of the two. The defendant admitted to having been in Chase Hall on August 2, 1986. The mode of entry used by the defendant and the other two men was confirmed by an SCSU police officer who found an open third floor window and a sneaker print on the nearby ledge. Under these circumstances, we conclude that the state’s failure to produce the tape recorded statements of M and T did not rise to the level of a denial of the defendant’s right of confrontation. Accordingly, the trial court properly determined that in order to meet its burden the state need only prove that it was more probable than not that the state’s nonproduction of the statements was harmless.

C

The defendant next claims that the trial court erroneously determined that the state had met its burden of proving harmlessness. In applying the balancing test set forth previously, we must weigh the state’s culpability in the destruction of the tape recorded statements' against the prejudice suffered by the defendant as a result of that destruction to determine whether the trial court abused its broad discretion in denying the defendant’s motions to strike. State v. Johnson, supra, 175; State v. Williamson, supra, 16. We conclude that the trial court did not abuse its discretion.

As stated previously, the New Haven police deliberately destroyed the tape recorded statements of M and T pursuant to a routine department procedure of erasing and reusing such tapes. Turning to the question of prejudice, we note that the defendant had access to numerous other sources for use during his cross-examination of M and T. “Where there are critical inconsistencies between trial testimony and prior statements, and between the prior statements themselves, a defendant may be prejudiced by the absence of the tape recording. See State v. Williamson, supra, 24-25. Where all indications are, however, that the witness has given consistent statements, we have been reluctant to find that the defendant suffered prejudice.” State v. Johnson, supra, 175-76. We first note that upon review of the transcription of T’s statement, her testimony at the pretrial hearing, and her testimony at trial, we find no inconsistencies. The defendant argued at trial and argues on appeal that the same consistency cannot be found in the various accounts of the incident given by M. While we do not disagree that M may have given inconsistent statements regarding the alleged crimes, we find that those inconsistencies concerned only the details of the events that allegedly had occurred in her dormitory room at 4 a.m. on August 2, 1986. Those inconsistencies provided the defendant with impeachment material with respect to the charged crimes of sexual assault and burglary, and undoubtedly contributed • to the defendant’s acquittal on those charges. The inconsistencies referred to by the defendant do not apply specifically to the crime of criminal trespass. The credibility of M’s testimony with respect to that crime, as affected by her inconsistent versions of what had occurred in her dormitory room, was for the jury to determine. See State v. McKnight, 191 Conn. 564, 571-72, 469 A.2d 397 (1983).

We also find significant on the issue of prejudice the fact that both T and M reviewed and adopted the transcriptions of the relevant tape recorded statements within a short time after they had given the statements. See State v. Johnson, supra, 176; State v. Santangelo, supra, 589; State v. Milum, 197 Conn. 602, 617-18, 500 A.2d 555 (1985); cf. State v. Williamson, supra, 25 (fact that transcript of tape was not reviewed by witness-victim until several months after the alleged crime was significant factor in determining that state had not proven harmlessness of nondisclosure). Given the above-cited considerations, we conclude that the trial court did not abuse its broad discretion in refusing to strike the trial testimony of M and T.

II

The defendant also challenges the trial court’s refusal to instruct the jury, as requested, on the affirmative defense to criminal trespass set forth in General Statutes § 53a-110: “It shall be an affirmative defense to prosecution for criminal trespass that ... (3) the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him to enter or remain, or that he was licensed to do so.” The defendant contends that sufficient evidence was adduced at trial to require a jury instruction on this affirmative defense. We do not agree.

“We have said that ‘[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).’ ” State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982), quoting State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982). Reasonable belief of license to enter a premises is a recognized affirmative defense to criminal trespass in the second degree. General Statutes § 53a-110 (3). An instruction on this theory of defense is required, as a matter of law, however, only when “the evidence indicates the availability of that defense.” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); see also State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983); State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979). The evidence presented at trial must be viewed in the light most favorable to supporting the defendant’s request to charge. State v. Fuller, supra, 279.

The defendant highlights the following testimony with respect to his claim that he was entitled to an instruction on the affirmative defense to criminal trespass in the second degree. The testimony of M and T revealed that on the night of August 1, 1986, they had spent approximately five hours in the company of the defendant, Fran and Jacques. M testified that, during that time, she had taken Fran to her dormitory room where they had engaged in consensual sexual activities. T testified that at Skidder’s she had discussed with a friend the fact that one could enter Chase Hall after hours by climbing onto the ledges and through the windows at the back of the building. A campus police officer confirmed at trial that this mode of entry was “frequently used” by both students and nonstudents. M also testified that she had left her door unlocked and ajar when she had gone to bed at 2:30 a.m. on August 2, 1986. Finally, T testified that upon questioning Jacques as to how he had entered the dormitory at 4 a.m. that same morning, he had responded: “Through the window like you said.” The defendant argues that from this evidence, the jury could have inferred that M and/or T had arranged for the three men to enter Chase Hall during the early morning hours of August 2,1986, for the purpose of engaging in consensual sexual activity. Accordingly, the defendant argues, the jury could have found that the defendant reasonably believed that he was licensed to enter Chase Hall.

The testimony elicited from the state’s witnesses does not support the conclusion urged by the defendant. M and T specifically testified that they had not arranged to have the men enter Chase Hall during the early morning hours of August 2, 1986. Without resorting to speculation, we cannot interpret the evidence of M’s and T’s time spent in public with the three men, M’s consensual sexual activity with one of the men, and M’s unlocked door in an otherwise locked dormitory as evidence that the defendant and/or his friends were licensed to enter Chase Hall. Jacques’ comment to T appears on its face to support the defendant’s claim; however, when viewed in its proper context, it does not evidence the license or invitation the defendant would have us believe. T’s testimony revealed that Jacques had heard mention of the window entry into the dormitory by eavesdropping on a conversation between T and her friend. We have said that “ ‘a defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible. . . .” United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976).” State v. Fuller, supra, 278. In the present case, however, no testimony was presented from which the jury could have concluded, without resorting to speculation, that the defendant reasonably believed he was licensed to enter Chase Hall. In light of the inadequate factual basis asserted by the defendant, the trial court properly refused to charge on the affirmative defense to criminal trespass.

The judgment is affirmed.

In this opinion Peters, C. J., Glass and Santaniello, Js., concurred.

Shea, J.,

with whom Callahan and Covello, Js., join, concurring. Although I agree with the remainder of the majority opinion, as well as the conclusion reached upholding the defendant’s conviction, I disagree with Part I B, which imposes on the state the burden of proving that the erasure of the tape recordings of the witnesses’ statements was probably harmless. I continue to believe that, in this instance of an intentional but not malicious destruction of evidence, as in other instances of prosecutorial failure to disclose evidence that may be exculpatory, the defendant should bear the burden of proving harmfulness by showing that the outcome of the trial would probably have been different if the missing evidence had been made available. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989); United States v. Bagley, 473 U.S. 667, 681-82, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Johnson, 214 Conn. 161, 180-81, 571 A.2d 79 (1990) (Shea, J., concurring); State v. Williamson, 212 Conn. 6, 29-30, 562 A.2d 470 (1989) (Shea, J., dissenting).

The failure of the police to preserve the tape recordings in this case violated no constitutional right of the defendant because the duty to disclose the prior statements of the witnesses for the state is based wholly upon General Statutes § 54-86b and Practice Book § 752. There is no reason to allocate the burden of proving prejudice for this nondisclosure of possibly significant evidence in a manner different from that in other instances of failure by the state to disclose relevant evidence, when no constitutional right is transgressed.

I concur in the judgment.

       General Statutes (Rev. to 1987) § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       General Statutes § 53a-102 provides in pertinent part: “(a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-108 provides in pertinent part: “(a) A person is guilty of criminal trespass in the second degree when, knowing that he is not licensed or privileged to do so, he enters or remains in a building.”

       Prior to the commencement of trial, the defendant moved to suppress this statement. The trial court denied the defendant’s motion, a ruling that is not an issue in this appeal.

       “[General Statutes] Sec. 54-86b. right of accused to examine statements. (a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.
      “(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

       “[Practice Book] Sec. 752.--production following testimony
      “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”
      “[Practice Book] Sec. 755.--failure to comply with order
      “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”
      Practice Book § 749 defines “statement” as “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       At the time the trial court made its ruling, the most recent decision concerning police destruction of witnesses’ statements was State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988). The trial court thus relied on this decision in making its ruling. During the pendency of the defendant’s appeal, we heard on certification the appeal from the Appellate Court’s decision in Williamson; State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989); and also considered an identical claim in State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990). These two cases provide the foundation for our analysis of the defendant’s claims of error with respect to the destruction of the witnesses’ statements.

       The trial court characterized the conduct of the New Haven police as “bad faith” in reliance on the definition given that term by the Appellate Court in State v. Williamson, 14 Conn. App. 108, 117, 552 A.2d 815 (1988). We have altered, however, the Appellate Court’s definition of “bad faith” in the context of General Statutes § 54-86b and Practice Book § 752 violations: “In the context of a § 752 violation ... the term ‘bad faith’ connotes a deliberate act done with intent to deprive the defense of information.” State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989). In the present case, the trial court specifically found that the erasure of the tapes was not “intentional malicious bad faith directed at this defendant in any way.” Thus, the erasure was not done in “bad faith” as we have defined that term.

       Prior to the commencement of trial, the defendant was provided copies of relevant police reports.

       The defendant did not renew his motion to strike after the testimony of T, M and Coffey. We recently refused to review claims of error with respect to destroyed statements due to such a failure to renew motions to strike. State v. Johnson, 214 Conn. 161, 169-71, 571 A.2d 79 (1990). In Johnson, the defendant presented no testimony at the pretrial hearing concerning the expected substance of the various witnesses’ trial testimony. Furthermore, the trial court specifically stated that its ruling on the admissibility of the trial testimony of the witnesses whose taped statements had been destroyed was preliminary and encouraged the defendant to renew his motion to strike after the testimony of each of the witnesses. We determined that the defendant had failed to preserve his claims of error by not renewing his motions to strike. Id. The present case is clearly distinguishable. At the pretrial hearing, the trial court heard testimony concerning the events of March 1 and 2, 1986, in addition to the procedural aspects of the making and destruction of the tapes. The trial court ruled on the admissibility of the testimony at trial and gave no indication that the ruling was preliminary in nature. Thus, the defendant adequately preserved his claim of error for appeal. See Practice Book § 4185.

       The reargument in this case focused on the question of whether the state properly bears the burden of proof when the intentional, nonmalicious destruction of discoverable statements does not rise to the level of a constitutional violation. We answered that question in the affirmative in State v. Johnson, 214 Conn. 161, 172, 571 A.2d 79 (1990), and State v.
        Williamson, 212 Conn. 6, 18, 562 A.2d 470 (1989), and adhere today to those decisions. The destruction or preservation of investigatory tapes is totally within the state’s control. If the state deliberately destroys those tapes in direct violation of the rule of law as established by statute, our rules of practice and this court, we are of the view that requiring the state then to prove the harmlessness of its act is not an unwarranted consequence.

       The defendant did not present at trial his own evidence or witnesses, but rather chose to put the state to its burden of proof on the charged and lesser included offenses. The defendant claims, however, that the evidence essential to support his affirmative defense to the crime of criminal trespass in the second degree was presented through the state’s witnesses.

       The majority opinion characterizes the destruction of the tape recordings of the witnesses’ statements as “deliberate” several times and refers in footnote 11 to a situation in which “the state deliberately destroys those tapes in direct violation of the rule of law as established by statute, our rules of practice and this court . . . . ” The only evidence concerning the circumstances under which the tape recordings were destroyed was furnished by Detective Robert Coffey, who testified that at the time of their destruction in 1986 the New Haven police department had no firm policy regarding the preservation of tapes, but that it was customary to erase them for reuse after they had been transcribed, except in “major” cases, an undefined category. It was not until April, 1988, that he became aware of a departmental policy to preserve all recordings of witnesses’ statements. Although it is undisputed that Coffey intentionally erased the tapes in order to make them available for reuse, there is no evidence that his actions were “characterized by or resulting from unhurried, careful, thorough and cool calculation and consideration of effects and consequences, ” as the word “deliberate” implies. (Emphasis added.) Webster’s Third New International Dictionary. The defendant does not claim that Coffey was aware of the rule of law established by our decision in State v. Milum, 197 Conn. 602, 615-18, 500 A.2d 555 (1985), requiring preservation of a tape recording after it has been transcribed.


source: Caselaw Access Project

author:
Peters, C. J.
      Shea, J.,

license: Public Domain

text:
    In re Edwin N.

    (13824)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued May 2
    decision released June 12, 1990

      Brian S. Carlow, assistant public defender, for the appellant (respondent).

      Cathleen M. Edwards, state’s advocate, for the appellee (state). ,

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.

   Peters, C. J.

In this appeal from an order transferring a juvenile to the adult criminal docket pursuant to General Statutes § 46b-127 (l), the issues are the formal and substantive sufficiency of the trial court’s findings in support of the transfer order. The initial petition against the respondent, Edwin N., charged him with two counts of delinquency, because of his alleged commission of murder, in violation of General Statutes § 53a-54a, and his alleged disregard of a court order for his house arrest, in violation of General Statutes § 46b-120. The trial court thereafter granted the state’s motion for the respondent’s transfer to the regular criminal docket of the Superior Court. In accordance with the provision of § 46b-127 making such a transfer order “a final judgment for purposes of appeal”; see also In re Bromell G., 214 Conn. 454, 460-61, 572 A.2d 352 (1990); the respondent has challenged the validity of the findings against him. We.determined, in accordance with Practice Book § 4023, that the respondent’s appeal should be heard in this court, and now uphold the validity of the transfer order.

Under § 46b-127, the validity of a transfer order depends upon a court’s making “written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged.” The proceedings in this case arose out of the involvement of the respondent with the death of Andre Lewis in New Haven as a result of a gun shot wound. After an evidentiary hearing in which both the state and the respondent fully participated, the trial court concluded that there was probable cause to believe that the respondent had committed the crime of murder. The court found that the respondent was fifteen years of age on the date when the alleged murder occurred. The court further found that “the victim died of a gun shot wound to the head and that probable cause exists to find that the accused child fired the weapon that inflicted the mortal wound.” The court’s final finding was that “the alleged incident followed an argument over money between the accused child and the victim.” Significantly, even though evidence was presented at the hearing that might have supported the conclusion that the shooting was unpremeditated or even accidental, the court made no explicit finding about the intent with which the respondent fired the gun that inflicted the fatal wound.

The respondent repeatedly moved, over the objection of the state, for further articulation of the trial court’s written findings of fact and conclusions of law.* ** The trial court denied his motion for articulation. When the request for articulation was renewed in this court, we granted the respondent’s motion for review but denied the relief he requested.

The respondent has raised two related challenges to the validity of the order transferring him to the regular criminal docket. He maintains that (1) the trial court’s written findings were legally insufficient to satisfy the requirements of § 46b-127 because they contained no express finding as to his intent to commit the crime of murder, and (2) there was an insufficient evidentiary basis for the trial court’s implied conclusion that the respondent specifically intended to kill the victim. Although we agree that the trial court should have made an express finding on the contested issue of intent, we are persuaded that the court’s failure to do so was harmless in light of the sufficiency of the evidence on intent presented at the hearing.

It is useful at the outset to note what is not at issue. The respondent concedes that the trial court’s written findings sufficiently address the respondent’s age and his causal implication in the victim’s death. The questions that he raises are confined to the issue of intent.

The absence of an express judicial finding that the respondent had the requisite intent to cause the death of the victim when he shot him was an unwarranted departure from the mandate of § 46b-127 for “written findings . . . that there is probable cause to believe that the child has committed the act for which he is charged.” The respondent was charged with the commission of a murder in violation of § 53a-54a. The court should have made a finding concerning his intent, because specific intent to cause the death of another is an element of the crime of murder under § 53a-54a. State v. Chace, 199 Conn. 102, 104, 505 A.2d 712 (1986); State v. Rodriguez, 180 Conn. 382, 399, 429 A.2d 919 (1980).

This court has repeatedly affirmed the significance of a transfer order in juvenile proceedings. In In re Ralph M., 211 Conn. 289, 302, 559 A.2d 179 (1989), we recognized that the decision whether to issue a transfer order, because it implicates the relinquishment of juvenile jurisdiction, is a “critically important” stage in the adjudicatory process. See Kent v. United States, 383 U.S. 541, 560-61, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). We held that, in conducting the transfer hearing, the court could “hear any evidence that it determines to be reliable, and that is material and relevant to the issue of probable cause.” In re Ralph M., supra, 307. In State v. Torres, 206 Conn. 346, 360, 538 A.2d 185 (1988), we emphasized that, in the transfer process, written findings play an important role in the implementation of the legislative policy of “shielding children from criminal liability except in clearly circumscribed situations.” We there held that, without the requisite judicial findings, a juvenile charged with the commission of murder could not be retained on the regular criminal docket for the prosecution of a charge of manslaughter once it was determined that there was no probable cause to believe that he had committed murder. Id., 358-60.

In light of these holdings, we reject the state’s contention that § 46b-127 would validate a transfer order accompanied by an entirely conclusory judicial pronouncement that there is probable cause to believe that the respondent had committed the act of murder. The point of the evidentiary hearing that the statute mandates is to enable the trial court to make the evidentiary findings that warrant depriving the juvenile of the protections to which he would otherwise be entitled. In re Ralph M., supra, 302. Further, the safeguard of an immediate right to appellate review of a transfer order would be undermined if the appellate tribunal were compelled to speculate about the factual basis upon which the trial court relied in its determination that a transfer was appropriate. Compare State v. Chiarizio, 8 Conn. App. 673, 683, 514 A.2d 370 (1986).

Although § 46b-127 requires the trial court to make “written findings” without specifying that the “findings” must be findings of fact, the well-nigh universal linkage of “findings” with “facts” justifies the interpolation of a factual element into the statutory requirement. Such a usage prevails throughout the General Statutes wherever statutes empower judges, administrative hearing officers, or arbitrators to adjudicate contested claims. See, e.g., General Statutes § 3-62f (return of escheated property); General Statutes § 4b-97 (public works arbitration); General Statutes §§ 7-473 (c) and 7-473b (d) (municipal employee labor disputes); General Statutes § 17-43a (d) (termination of parental rights); General Statutes § 22-234 (license suspension); General Statutes §§ 36-484 (f), 36-489 (c) (3), 36-490 (c) and 36-511 (regulation of investment advisors); General Statutes § 38-63 (unfair practices in insurance industry); General Statutes § 38-517 (b) (privacy in insurance contracts); General Statutes § 42-131c (unfair trade practices in trading stamps); General Statutes § 45-6 If (h) (probate termination of parental rights); and General Statutes § 45-328 (e) (guardianship). Our rules of practice similarly distinguish between “factual findings” and conclusions of law. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Had the trial court failed to make any findings of fact, we would therefore, even now, have to remand this case for the articulation that the respondent had earlier sought to obtain. The record before us, though undesirably sparse, nonetheless is sufficient to warrant an inference about the factual underpinnings of the court’s transfer order. We can deduce that an experienced trial court judge would not have found probable cause to believe that the respondent had committed murder without having impliedly found that the respondent had the requisite criminal intent to do so. The findings that the court made with respect to causality lend factual support to this conclusion. The court determined that there was probable cause to believe that the respondent killed the victim with a gun shot to the head after an argument about money. These findings could have been expressly relied upon to support a finding of probable cause to believe that the respondent specifically intended to kill the victim.

The deficiencies in the trial court’s formal written findings could in any case have caused no harm to the respondent because, despite his contention to the contrary, the record establishes a sufficient evidentiary foundation for the trial court’s implied conclusion that there was probable cause to believe that the respondent specifically intended to cause the death of the victim. Although it must transcend mere speculation, the evidentiary standard for probable cause is, of course, less demanding than that which is required to sustain a conviction at trial. State v. Patterson, 213 Conn. 708, 720, 570 A.2d 174 (1990); State v. Mitchell, 200 Conn. 323, 336, 512 A.2d 140 (1986); see also Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Dennis, 189 Conn. 429, 431-32, 456 A.2d 333 (1983). Viewing the proffered proof most favorably to the state, the court must decide whether the state’s evidence would warrant a person of reasonable caution to believe that the respondent had committed the crime with which he was charged. In this case, the critical issue was whether the respondent had the requisite specific intent. “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); State v. Chace, supra, 105; State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985).

■ Applying the appropriate standard for proof of probable cause to the evidence produced at the respondent’s transfer hearing, we have no doubt that the trial court properly concluded that the respondent specifically intended to kill his victim. The evidence demonstrates a close fit with the criteria enumerated in State v. Zdanis, supra. The respondent had a deadly weapon, which he fired at the victim’s head, at close range, after taking hold of the victim by his shirt. The shooting followed a heated argument about money. In addition, the respondent was seen fleeing the scene immediately after the shooting. Although the respondent introduced other evidence suggesting that the shooting might have been accidental or unpremeditated, the trial court was entitled to resolve the assessment of the credibility of this testimony in favor of the state. State v. Patterson, supra, 720-24.

The judgment is affirmed.

In this opinion Callahan, Glass and Covello, Js., concurred.

Shea, J.,

dissenting. I agree with the majority that there was sufficient evidence to support a finding that the respondent intended to kill the victim when he fired his gun at the victim’s head. I also agree that “[t]he absence of an express judicial finding that the respondent had the requisite intent to cause the death of the victim when he shot him was an unwarranted departure from the mandate of [General Statutes] § 46b-127 for ‘written findings . . .’ ” of probable cause.

I disagree, however, with the view of the majority that this court should plaster over this acknowledged disregard of the statute by assuming that the “trial court judge would not have found probable cause to believe that the respondent had committed murder without having impliedly found that the respondent had the requisite criminal intent to do so.” We ourselves embark upon “an unwarranted departure” from the mandate of the statute when we thus ratify the failure of the trial court to make an express finding upon this issue, which presented virtually the only factual dispute at the transfer hearing.

This is not a case in which the respondent has failed to utilize established procedures for clearing up a deficiency in the record before presenting his appeal. He sought a further articulation from the trial court pursuant to Practice Book § 4051, and when that request was denied, he sought relief for that purpose from the Appellate Court and from this court pursuant to Practice Book § 4054 with no greater success. The fact that this court has previously denied his request is no reason to continue to refuse to grant what the majority acknowledges is mandated by § 46b-127, an express finding on the issue of probable cause to believe that the respondent intended to kill the victim as an essential element of the crime of murder.

It is not too late to give the respondent what § 46b-127 entitles him to receive by way of “written findings” of probable cause. “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.” Practice Book § 4061. Rather than treat as insignificant the trial court’s “unwarranted departure” from the mandate of § 46b-127 in failing to make any finding of probable cause with respect to an essential element of the crime, this court should remand the case pursuant to § 4061 for a further articulation by the trial court. Such a procedure could be completed expeditiously and would not cause undue delay in the disposition of the appeal.

Accordingly, I dissent.

       General Statutes § 46b-127 provides in relevant part that “[t]he court shall transfer to the regular criminal docket of.the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years .... No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal.”

       The transfer provisions of General Statutes § 46b-127 pertain only to a child who has “attained the age of fourteen years.”

       Given our holding today that the statutory provision requiring written findings as a prerequisite for the transfer of a juvenile to the adult eriminal docket is a substantive rather than a merely formal requirement, it would appear unlikely that the state, in the future, should find it necessary to object to a request for an articulation, since an articulation, as the instant case demonstrates, can facilitate an appellate court’s review of the propriety of the transfer order.

       The respondent also moved for a stay of the transfer pending the outcome of his appeal. Although the trial court denied that motion as well, this court, sua sponte, stayed the transfer order in accordance with our recent decision in In re Bromell G., 214 Conn. 454, 462-63, 572 A.2d 352 (1990).


author: Hull, J.

text:
    Gerald E. Fengler et al. v. Northwest Connecticut Homes, Inc., et al.
    (13783)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued April 10
    decision released June 12, 1990

      Benson A. Snaider, for the appellants (defendants).

      Robert P. Hanahan, for the appellees (plaintiffs).
   Hull, J.

The plaintiffs, Gerald E. and Linda R. Fengler, instituted this action to recover for the alleged breach of a construction contract by the defendants, Northwest Connecticut Homes, Inc., and Mark Cooper. During the second day of trial, the plaintiffs sought to amend their complaint to add a count for breach of statutory obligations. Upon the court’s statement that the plaintiffs would be subject to payment of the defendants’ expenses incurred as a result of the late amendment, the plaintiffs declined to proceed on the amendment and completed the trial on the original complaint. The court thereafter rendered judgment in the plaintiffs’ favor on the original complaint.

The plaintiffs appealed to the Appellate Court, claiming that the trial court should not have: (1) conditioned permission to amend the complaint on the plaintiffs’ payment of the defendants’ expenses incurred as a result of the late amendment; and (2) limited the plaintiffs’ claim for damages to the written agreement between the plaintiffs and the defendants. The Appellate Court reached only the first issue, which it found for the plaintiffs and thus set aside the trial court’s judgment and remanded the case for a new trial. Fengler v. Northwest Connecticut Homes, Inc., 19 Conn. App. 280, 562 A.2d 77 (1989).

We granted certification on the defendants’ petition, limited to the following questions: (1) “Did the Appellate Court err in concluding that the trial court had no authority to condition the allowance of an amendment to a complaint adding a second count for breach of [statutory obligations] upon the payment by the plaintiffs] of additional expenses occasioned by the late amendment and interruption of the trial?” and (2) “Did the Appellate Court err in concluding that the absence of such an amendment was so prejudicial as to require that the judgment upon the original complaint be set aside?” We answer the first of these questions in the affirmative and, therefore, reverse the decision of the Appellate Court. The case is remanded to the Appellate Court for consideration of other issues that, although raised by the plaintiffs’ appeal, were not reached by that court.

The following procedural facts are relevant to this certified appeal. The plaintiffs’ original complaint alleged a breach of contract arising from the defendants’ failure to complete certain repairs on the plaintiffs’ newly constructed home. On the second day of trial, the plaintiffs sought to amend their complaint by adding a second count that alleged a breach of the implied statutory warranty of fitness under General Statutes §§ 47-118 and 47-119. The defendants objected to the amendment.

During the colloquy that followed, the court stated to the plaintiffs’ counsel: “Now, in the midst of this trial you want to amend the complaint, which is going to force a further delay in the disposition of this matter.” The court noted that certain Practice Book and statutory provisions contemplated the circumstances created by the late amendment. Practice Book § 176 provides in pertinent part: “If the amendment occasions delay in the trial or inconvenience to the other party, the court may award costs in its discretion in his favor.” General Statutes § 52-130 provides in pertinent part: “[I]n any case when a party amends or alters any part of the pleadings or pleads anew, if it occasions any delay in the trial or inconvenience to the other party, he shall be liable to pay costs at the discretion of the court.” Given these provisions, the court inquired of the defendants’ counsel about any extra attorney’s fees that would be incurred if the court were to allow the amendment and continue the trial. Defense counsel estimated such fees at approximately $2500 to $3500. The court then stated: “[T]he Court would feel if there was shown to the satisfaction of the Court that there was additional expense occasioned by this situation that the defendant would be entitled to those costs.” The court noted that such an award would be made whether there was a favorable or unfavorable ruling. Rather than agree to pay such costs, the plaintiffs declined to proceed with the motion to amend and made, instead, an offer of proof as to what evidence they would have proffered had the motion to amend unconditionally been granted.

We note at the outset that the first certified question is somewhat inartfully drawn in its reference to the payment of “additional expenses” caused by the late amendment. Although the court did on occasion use the term “expenses,” it is clear from the record that the trial court and counsel were basically concerned with additional counsel fees. We conclude, therefore, in order to avoid further muddying of the waters, not to expand the first reserved question, as is our prerogative; State v. Torrence, 196 Conn. 430, 433-34, 493 A.2d 865 (1985); but rather to refine the reserved question by substituting for the term “additional expenses” the term “additional costs, including attorney’s fees.”

The Appellate Court concluded that “[i]t is apparent from a plain reading of [Practice Book § 176 and General Statutes § 52-130] that the trial court may award attorney’s fees once an amendment has been made by a party if it causes delay in the trial or inconvenience to the other party.” Fengler v. Northwest Connecticut Homes, Inc., supra, 282. In applying § 176 and § 52-130 to the facts of the present case, however, the Appellate Court concluded that the rules do not “grant the trial court the authority to impose the payment of such fees as a condition precedent to allowing a party to amend [its] complaint during trial.” Id. According to the Appellate Court, therefore, the trial court in the instant case “had the discretion to allow or disallow the plaintiffs’ amendment, but [it] could not condition the amendment upon the payment of counsel fees.” Id. While we agree with the Appellate Court that the rules authorize the trial court to award attorney’s fees incurred as a result of a late amendment, we do not agree that the ruling of the trial court in the instant case constituted an abuse of its discretion.

The Appellate Court stated in a rather conclusory fashion that the rules provide that the trial court may award attorney’s fees when an amendment made by a party causes delay in the trial or inconvenience to the other party. The reasons for this conclusion deserve some further discussion. While we cannot embellish the guidepost of plain meaning relied upon by the Appellate Court, we rely on three additional reasons that support the conclusion that the term “costs” as used in § 176 and § 52-130 is not limited to traditional common law and statutory costs. First, § 176 and § 52-130 provide that the court may award such costs in its “discretion.” An examination of General Statutes § 52-257, entitled “[f]ees of parties in civil actions,” reveals that most of the awards are automatic assessments, not involving the discretion of the court. The principal exceptions to this general rule are subsection (d) concerning minor specific matters and subsection (e) reserving to the court its time-honored discretion in taxing costs in actions in which equitable relief is granted. Second, the provision for costs that the court may award in its discretion against an amending party does not depend upon whether that party prevails on the issues. This is in marked contrast to the general cost provisions in Practice Book §§ 406 through 427 and § 52-257. Finally, the party moving to amend, if he prevails, would still be entitled to his customary costs. In light of these considerations, we conclude that the purpose of § 176 and § 52-130 is to include attorney’s fees among the costs that may be assessed against the amending party.

The trial court properly relied on these rules in informing the plaintiffs that they would be assessed for the additional attorney’s fees that resulted from the late amendment. That the court “conditioned” its permission to add the amendment on payment of such costs is of no consequence. The trial court had the authority to authorize an award of costs, including attorney’s fees, in conjunction with its discretionary ruling granting the plaintiffs’ belated request to amend. By not assessing the costs at the time the court ruled on the amendment, the court preserved for the plaintiffs the opportunity to challenge, at a later time, the specific amount of the costs that the plaintiffs would be assessed.

The procedure adopted by the court is preferable to granting the motion to amend and subsequently, without advance warning, holding a hearing to assess the amount of the costs to be awarded. The practicality of this procedure is demonstrated by the fact that, after having been advised by the court of a possible liability of $2500 to $3500 for attorney’s fees, the plaintiffs, who sought only $6000 in damages beyond those conceded by the defendants at trial, did not press the amendment further. The rule and the statute, therefore, operated in a very efficient manner in this day of suffocating court dockets.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       H & S Contractors, Inc., and Energy Homes, Inc., agreed to construct a residential home on land that they were to convey to the plaintiffs. The defendants allegedly assumed the obligations of H & S Contractors, Inc., and Energy Homes, Inc. Sometime thereafter, the defendants agreed in writing to complete certain work on the plaintiffs’ house. The trial court limited the plaintiffs’ claim for damages to the written agreement and did not allow the plaintiffs to attempt to prove all the damages claimed under the initial construction contract. See Fengler v. Northwest Connecticut Homes, Inc., 19 Conn. App. 280, 281, 562 A.2d 77 (1989).

       Given our disposition of the first certified question, we need not reach the second question.


text:
    Circuit-Wise, Inc. v. Commissioner of Revenue Services
    (13772)
    Shea, Callahan, Glass, Covello and Hull, Js.

      Argued March 8
    decision released June 12, 1990

      David P. Atkins, with whom was Bette L. Bono, for the appellant (plaintiff).

      PaulM. Scimonelli, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Hull, J.

This appeal involves a constitutional challenge to the Hazardous Waste Assessment statute, General Statutes § 22a-132. Pursuant to this statute, the defendant, the commissioner of revenue services, assessed taxes against the plaintiff, Circuit-Wise, Inc. The plaintiff protested the assessment, which protest the defendant rejected. The plaintiff thereafter sought de novo judicial review of the assessment.* The case was tried to a state trial referee who rendered judgment for the defendant and dismissed the plaintiffs appeal. From this judgment the plaintiff appealed to the Appellate Court. We subsequently transferred the case to ourselves pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The trial court’s memorandum of decision reveals the following facts. The plaintiff is a manufacturer. of printed circuit boards for the automotive and computer industries. By-products generated by the plaintiff’s manufacturing activity are classified as “hazardous waste.” These by-product wastes are transported off-site and are then either disposed of in a regulated facility or recycled and resold in their reprocessed state. Federal and state statutes and regulations require that generators of hazardous waste, such as the plaintiff, prepare a manifest that lists all hazardous waste substances shipped from their facilities. Pursuant to § 22a-132, the defendant assessed the plaintiff for taxes on the hazardous waste products for which the plaintiff had filed a manifest for the period March, 1983, through December 31, 1984. Upon the defendant’s rejection of the plaintiff’s protest of the assessment, the plaintiff instituted the present action.

The plaintiff challenged at trial the constitutionality of § 22a-132. The plaintiff first argued that the statute was violative of the equal protection guarantees of the state and federal constitutions, because it taxed some but not all hazardous substances, thereby creating classifications that bear no rational relationship to the statute’s stated purpose. Specifically, the plaintiff claimed that by taxing substances deemed to be “hazardous waste” and not taxing other “hazardous substances,” the statute creates an unconstitutionally underinclusive classification. The plaintiff claimed in the alternative that because the statute taxes all hazardous wastes, including the wastes that are recycled and reintroduced into the stream of commerce, the statute operates in an arbitrary and capricious manner and is thereby violative of the due process and equal protection guarantees of the state and federal constitutions.

The court concluded that § 22a-132 was not unconstitutional, either on its face or as applied to the plaintiff. The court’s decision was based on the premise that, notwithstanding the express revenue raising provisions of § 22a-132, the purpose of the statute was “clearly for regulation and not for revenue.” The court stated that regulation pursuant to the police power “is not subject to the constitutional restrictions applicable to the taxing power.” The policy of the state, according to the court, is to control and manage hazardous waste from the time of its generation until the time of its safe disposition. Accordingly, the court stated that “[hazardous waste is a subject of compelling state interest in the exercise of its police power in duly safeguarding the health, safety and welfare of the people.” The court gave no credence to the plaintiff’s claim that the classification in § 22a-132 was underinclusive in its coverage, stating that there is “no fundamental right to endanger the public health or safety or to pollute the environment, and that it would be repugnant to reason and justice to maintain that one party is justified in doing so because another party is doing likewise.” The court also found that “[a]s regards a generator of hazardous waste there is no reasonable distinction between the hazardous waste that ultimately is disposed of in a regulated land-fill, and the hazardous waste that proceeds to recycling or reclamation. The actual or potential hazard is present in both processes, and the classification is consistent and has a rational relationship to the state and legislative purpose of Chapter 445 of the general statutes in safeguarding the health and safety of the public and safety and welfare of the environment.” The court then concluded that the statute created no unreasonable classification so as to deny the plaintiff its constitutional rights. The plaintiff did not move the trial court under Practice Book § 4051 to articulate its memorandum of decision concerning its conclusory statements of constitutional law.

On appeal the plaintiff challenges: (1) the court’s conclusion that § 22a-132, in taxing “hazardous wastes” but not other “hazardous substances,” does not violate the equal protection guarantees of the federal and state constitutions; (2) the court’s failure to address whether the classification established in § 22a-132 has any rational relation to the expressed revenue raising purpose of § 22a-132; and (3) the court’s conclusion that § 22a-132, by taxing all hazardous waste entered on a manifest, including that sent for recycling, does not violate the due process and equal protection guarantees of the federal and state constitutions. We consider the first and second claims combined to constitute only one issue and will treat them accordingly.

I

We turn first to the plaintiffs claim that § 22a-132 establishes an unconstitutional classification in violation of the equal protection guarantees of the federal and state constitutions. In support of its claim, the plaintiff refers to the following testimony presented at trial. The plaintiff purchases various raw or virgin chemical materials from suppliers to accomplish the plating and etching operations that are part of its manufacturing process. These chemicals are classified under federal statute and regulations as “hazardous materials” in that they exhibit one or more of the standard characteristics of such materials: corrosivity, toxicity, reactivity and ignitability. New chemical byproducts are produced by the plaintiffs manufacturing process. These by-products are classified as “hazardous waste” under the federal Resource Conservation and Recovery Act of 1976. The plaintiff presented testimony at trial indicating that many of the characteristics of “hazardous waste” are identical to “hazardous materials.” The plaintiffs expert testified that in their original form, the hazardous materials supplied to the plaintiff were as dangerous or more so than the hazardous waste produced by the plaintiff. This testimony was unrefuted by the defendant.

As the plaintiff correctly points out, pursuant to § 22a-132, a generator of “hazardous waste” incurs a tax when it includes that waste on a manifest, while a producer of hazardous materials, not subject to the manifest requirement, is not assessed such a tax. The plaintiff argues that the history of § 22a-132 and its terms disclose that the purpose of the statute is to provide funds for the emergency spill response fund established under General Statutes § 22a-451. 6Section 22a-451, however, is concerned not only with hazardous waste, but with a variety of matters wholly unrelated to such waste. The plaintiff claims, therefore, that the practical effect of § 22a-132 is to assess a generator of hazardous waste for a fund that pays for the clean-up of numerous substances produced and shipped by parties who escape taxation completely. Accordingly, the plaintiff argues that § 22a-132 is violative of equal protection. We are unpersuaded.

We note at the outset that we disagree with the trial court’s conclusion that § 22a-132 is primarily a regulatory statute. Regulation of the management and disposal of hazardous waste is controlled by an intricate web of interrelated state and federal laws and regulations. Although enforcement of the waste assessment may have an incidental regulatory fallout, we conclude that § 22a-132 is primarily a tax statute.

In order to analyze the constitutionality of this statute, we must first detail the principles applicable to equal protection analysis. “ ‘When a statute is challenged on equal protection grounds, whether under the United States constitution or the Connecticut constitution, the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. In re Griffiths, 413 U.S. 717, 721, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 30, 93 S. Ct. 1278, 36 L. Ed. 2d 16, reh. denied, 411 U.S. 959, 93 S. Ct. 1919, 36 L. Ed. 2d 418 (1973); Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Harper v. Virginia State Board of Elections, 383 U.S. 663, 667, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge. Trimble v. Gordon, 430 U.S. 762, 767, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). . . .

“ ‘Under the rational basis test, “[t]he court’s function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way.” Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957); see New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976); McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 315, 417 A.2d 343 (1979). For our purposes here the test is the same under both the federal and state constitutions. Caldor’s, Inc. v. Bedding Barn, Inc., supra, 314; Horton v. Meskill, 172 Conn. 615, 639, 376 A.2d 359 (1977).’ Ryszkiewicz v. New Britain, 193 Conn. 589, 596-99, 479 A.2d 793 (1984).

“Moreover, there is ‘the established principle that those who challenge the constitutionality of a state statute bear the heavy burden of demonstrating beyond a reasonable doubt that the presumption of its validity has been overcome. See, e.g., Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968). A party challenging a tax statute on the grounds of equal protection bears an even greater burden because “[a]s this court emphasized in Kellems v. Brown, supra, 487, quoting Madden v. Kentucky, 309 U.S. 83, 88, 60 S. Ct. 406, 84 L. Ed. 590 [1940], ‘ “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which [the United States Supreme] Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” ’ ” Miller v. Heffernan, [173 Conn. 506, 509-10, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978)]. Nonetheless, even for the purposes of taxation, the legislature does not have an unlimited power to create classifications. The classifications that it selects cannot be arbitrary but “ ‘must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ ” (Citations omitted.) Allied Stores v. Bowers, 358 U.S. 522, 527, 79 S. Ct. 437, 3 L. Ed. 2d 480 (1959); see United Illuminating Co. v. New Haven, 179 Conn. 627, 636-37, 427 A.2d 830 (1980); Kellems v. Brown, supra, 490. Recognizing that any plan of taxation necessarily has some discriminatory impact; San Antonio Independent School District v. Rodriguez, [supra, 41]; United Illuminating Co. v. New Haven, supra, 641; we have previously stated the operative test for the validity of a tax statute to be the following: “ ‘As long as some conceivable rational basis for the difference exists, “a classification is not offensive merely because it is not made with mathematical nicety.” ’ ” (Emphasis in original.) (Citations omitted.) United Illuminating Co. v. New Haven, supra, 640-41.’ Gunther v. Dubno, 195 Conn. 284, 291-92, 487 A.2d 1080 (1985).” Harbor Ins. Co. v. Groppo, 208 Conn. 505, 508-11, 544 A.2d 1221 (1988).

It is undisputed that § 22a-132 provides for an assessment against a generator of hazardous waste required to file a manifest, while not extending that assessment to generators or shippers of “hazardous material” not subject to the manifest requirement. We are thus faced with the question of whether there is any conceivable rational basis for this classification. We look first to General Statutes (Rev. to 1983) § 22a-114 which states the policy underlying chapter 445, entitled “Hazardous Waste”: “Legislative finding; policy of the state. The general assembly finds that improper management of hazardous wastes has contaminated the water, soil and air of the state thereby threatening the health and safety of Connecticut citizens; that the economic benefits to the state from industry are jeopardized if hazardous waste disposal facilities are not available in Connecticut; that the safe management of hazardous wastes, including state involvement, is mandated by the Federal Resource Conservation and Recovery Act of 1976 (42 USC 6901 et seq.) and implementing regulations; that the siting of hazardous waste disposal facilities is in the best interest of Connecticut’s citizens and that the public should participate in siting decisions. Therefore the general assembly declares that it is the policy of the state to assure the siting of hazardous waste disposal facilities so that the health and safety of Connecticut’s citizens and the environmental and economic interests of the state are protected. The purpose of this chapter is to establish a process for the siting of hazardous waste facilities that will protect the health and safety of Connecticut citizens and assure responsible economic development and to have that siting process be at least as strict as that required by federal law.” We also note that General Statutes § 22a-115 (1) states that “ ‘[hjazardous waste’ means any waste material, except by-product material, source material . . . which may pose a present or potential hazard to human health or the environment when improperly disposed of, treated, stored, transported, or otherwise managed . . . . ”

The finding of the general assembly as articulated in § 22a-114 forcefully attributes the contamination of the water, soil and air of the state, threatening the health and safety of Connecticut citizens, to hazardous wastes. No mention is made in this powerful statement of state policy of any such threat to our citizens from hazardous materials. It is clear that this policy deliberately did not extend to hazardous materials, because the definition of “hazardous waste” contained in § 22a-115 specifically excludes from that definition “source material.” It is also of significance that those persons required, pursuant to § 22a-132 (a), to pay the assessment include a broad spectrum of those involved in the handling of hazardous waste: (1) a generator of hazardous waste required to file a manifest, such as the plaintiff in this case; (2) a treatment facility required to file a manifest for hazardous wastes resulting from their treatment process; and (3) a generator of hazardous waste shipping that waste to treatment or disposal facilities located in the state. The entire statutory construct concerns environmental contamination that may arise from hazardous waste.

We need look only to the plaintiff’s brief to ascertain a very evident conceivable rational basis for the distinction between hazardous wastes and hazardous materials. The plaintiff states that “[t]he underlying purpose of the manifest requirement is simply to enable state and federal regulatory bodies to track individual shipments of hazardous waste ‘to assure that’ such shipments are ‘designated for treatment, storage or disposal in, and arrive at . . . facilities . . . for which a permit has been issued.’ 42 U.S.C. § 6922 (5). See also 45 Fed. Reg. 86969 (Dec. 31, 1980) (amending 40 C.F.R. § 262.10 and § 264.71).” Additionally, the plaintiff states that “the only possible justification for singling out hazardous wastes apart from hazardous material for special regulation would be the special risk inherent in substances that are discarded: dumping into sites which lack proper permits or which otherwise lack controls to prevent or minimize long term harm to the environment.”

The need to “track” shipments of hazardous waste to assure that they end up in a licensed treatment facility is obviously based on the economic reality that the cost of the properly regulated disposal of such'waste may encourage producers of the waste to seek illegal disposal methods with resultant environmental damage to the state and its citizens. We take judicial notice of widespread disastrous instances of such illegal disposal within this state and throughout the nation. By contrast, as the plaintiff admits, the manifest requirements do not apply to hazardous materials, not designated as “wastes,” since such shipments are made for commercial or industrial use. The economic pressure tempting producers of hazardous waste to “cut corners” in its disposal simply do not apply to shippers of materials, though hazardous, that are being shipped for commercial or industrial use. Rather, economic common sense dictates that hazardous materials be delivered to the intended users undamaged in any way.

The legislature, in enacting § 22a-132, allocated liability for funding of the emergency spill response fund to those parties whose production of hazardous wastes contributes to the contamination of the water, soil and air of the state. Stephen Hitchcock, director of hazardous materials management of the Connecticut department of environmental protection, in commenting on the bill which became § 22a-132, stated that the proposed bill was a good one because “costs associated with hazardous wastes should be paid by those producing the waste.” Conn. Joint Standing Committee Hearings, Environment, Pt. 4,1982 Sess., p. 794. This basis for the classification contained in this statute accords entirely with the legislative finding concerning hazardous waste set forth in § 22a-114.

As we stated previously, “ ‘ “[t]he broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . . ” Madden v. Kentucky, [supra, 87-88].’ San Antonio Independent School District v. Rodriguez, supra, 40-41. . . . ‘It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S. Ct. 337, 55 L. Ed. 369 (1911)]. It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety.’ (Emphasis in original.) Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S. Ct. 370, 60 L. Ed. 679 (1916).” United Illuminating Co. v. New Haven, supra, 641-42.

We conclude that the determination of the trial court, that the plaintiff had not proven beyond a reasonable doubt that § 22a-132 was violative of the federal and state guarantees of equal protection of the laws, was correct.

II

The plaintiff claims in the alternative that even if the classification created by § 22a-132 withstands constitutional scrutiny, its application to hazardous waste sent for recycling operates in an arbitrary and capricious manner in violation of the state and federal constitutional guarantees of equal protection and due process. We do not agree.

“The equal protection and the due process provisions of both [the state and federal] constitutions have the same meaning and the same limitations. Miller v. Heffernan, supra, 516-17; Horton v. Meskill, [supra, 639]; Kellems v. Brown, [supra, 485]; Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968); People v. Santiago, 51 App. Div. 2d 1, 10, 379 N.Y.S.2d 843 (1975). Under any and all of these provisions, an act regulating economic activity must bear a reasonable relationship to a proper legislative purpose in a manner that is neither arbitrary nor discriminatory. Carroll v. Schwartz, 127 Conn. 126, 130, 14 A.2d 754 (1940). 'The court’s function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional requirements of due process and equal protection.’ Pierce v. Albanese, [supra, 249].” Caldor’s, Inc. v. Bedding Barn, Inc., supra, 314-15.

We concur with the following finding of the trial court: “As regards a generator of hazardous waste there is no reasonable distinction between the hazardous waste that ultimately is disposed of in a regulated land-fill, and the hazardous waste that proceeds to recycling or reclamation. The actual or potential hazard is present in both processes, and the classification is consistent and has a rational relationship to the state and legislative purpose of Chapter 445 of the general statutes in safeguarding the health and safety of the public and safety and welfare of the environment.” We conclude that the legislature could well have determined that the danger of dumping hazardous waste on the way to a legitimate recycling operation justified the imposition of the hazardous waste assessment on such shipments as well as wastes otherwise disposed of. Accordingly, the application of the assessment to the plaintiffs reclaimed wastes is so connected to the general purposes of hazardous waste management in Connecticut that it does not violate the equal protection or due process clauses of the federal and state constitutions.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 22a-132 provides in pertinent part: “hazardous waste assessment, (a) There shall be paid to the commissioner of revenue services by (1) a generator of hazardous waste required to file a manifest pursuant to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), as from time to time amended, and regulations adopted by the department of environmental protection, (2) a treatment facility required to file a manifest for hazardous wastes resulting from their treatment process and (3) a generator of hazardous waste shipping hazardous waste to treatment or disposal facilities located in the state, an assessment of (A) five cents per gallon of metal hydroxide sludge from wastewater treatment of electroplating or metal finishing operations and six cents per gallon of any other hazardous waste entered on a manifest in gallons, (B) one-half of one cent per pound of metal hydroxide sludge from wastewater treatment of electroplating or metal finishing operations and three-quarters of one cent per pound of any other hazardous waste entered on a manifest in pounds or (C) ten dollars per cubic yard of metal hydroxide sludge from wastewater treatment of electroplating or metal finishing operations and twelve dollars for any other hazardous waste entered on a manifest in cubic yards. . . .”
      This statute was amended, effective July 3, 1989, by No. 89-365 of the 1989 Public Acts.

       General Statutes § 12-33 provides in pertinent part: “Any town or company aggrieved by the action of the commissioner [of revenue services] may, within one month from the time of such action, make application in the nature of an appeal therefrom to the superior court of the judicial district in which such applicant is located, which shall be accompanied by a citation to said commissioner to appear before said court.”

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

       General Statutes § 22a-132 (d) provides in pertinent part: “The revenue collected in accordance with this section shall be deposited in the emergency spill response fund established under section 22a-451”

       General Statutes § 22a-451 (d) provides: “There is established a revolving fund to be known as the emergency spill response fund, for the purpose of providing money for (1) the containment and removal or mitigation of the discharge, spillage, uncontrolled loss, seepage of filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes including the state share of payments of the costs of remedial action pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 USC 9601 et seq.), as amended; (2) provision of potable drinking water pursuant to section 22a-471; (3) completion of the inventory required by section 22a-8a; (4) the removal of hazardous wastes that the commissioner deems to be a potential threat to human health or the environment; (5) the accomplishment of the purposes of sections 22a-134aa to 22a-134hh, inclusive, except that the amount expended for the purpose of this subdivision shall not exceed eighty thousand dollars per year and (6) (A) the provision of short-term potable drinking water pursuant to subdivision (1) of subsection (a) of section 22[a]-471 and the preparation of an engineering report pursuant to subdivision (2) of subsection (a) of said section when pollution of the groundwaters by pesticides has occurred or can reasonably be expected to occur; (B) the study required by Special Act 86-44 and (C) as funds allow, education of the public on the proper use and disposal of pesticides and the prevention of pesticide contamination in drinking water supplies. The amount expended under subdivision (6) of this subsection shall not exceed the sum of the amount credited to the emergency spill response fund from the fees collected pursuant to sections 22a-66b to 22a-66j, inclusive, and section 22a-54a, fifty per cent of the amount credited therein from the fees collected pursuant to subsection (g) of section 22a-50, and one-third of the amount credited therein from the fees collected pursuant to (i) subsection (f) of section 22a-54 and (ii) subsection (c) of section 22a-56. Any money recovered pursuant to subsections (a) and (c) of this section shall be deposited in the general fund and credited to the fund established under this section and shall be used to meet any contractual obligations incurred by the commissioner pursuant to subsection (b) of this section for such containment and removal or mitigation.”

       “[B]y-product material” in this definition does not refer to or exempt the waste generated by the plaintiffs process.

         We are not persuaded by four cases cited by the plaintiff for its claim that General Statutes § 22a-132 is so underinclusive in its coverage as to offend equal protection guarantees. In Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), the court found that the application of a zoning regulation to a proposed group home for the mentally retarded violated the applicant’s equal protection rights because there was not a rational basis for treating such housing differently than other care and multiple dwelling facilities. The court concluded that the regulation “appears to us to rest on an irrational prejudice against the mentally retarded . . . .” Id., 450. In Williams v. Vermont, 472 U.S. 14, 23, 105 S. Ct. 2465, 86 L. Ed. 2d 11 (1985), the court invalidated a Vermont automobile use tax, because it was applied arbitrarily. In Brown v. Barry, 710 F. Sup. 352, 356 (D.D.C. 1989), the court found a regulation prohibiting the issuance of vending permits to bootblacks, while allowing such permits for other street vendors, unconstitutional on equal protection grounds. The court, applying the rational basis test, could find no plausible connection between the uniqueness of a bootblack and the purpose of the law. Finally, in Long Island Lighting Co. v. Cuomo, 666 F. Sup. 370, 422 (N.D.N.Y. 1987), appeal dismissed, 888 F.2d 230 (2d Cir. 1989), the court found that the application of a restriction to a power company’s rate base that applied only to privately owned utilities which were sole owners of a nuclear power plant and not to nuclear power plants owned by more than one party, when measured against the purposes of the statute, was “so under-inclusive that it must be deemed irrational” and hence a violation of the plaintiff’s equal protection rights. Id., 423. The present case is clearly distinguishable in that we have articulated the rational relationship between the classification challenged and the purpose of the statute.

       During the relevant tax period, approximately 53 percent of the plaintiff’s manifested hazardous waste was returned to the stream of commerce after reprocessing.

       Public Acts 1989, No. 89-365, § 4, effective July 5,1989, amended General Statutes § 22a-132 to provide that any hazardous waste that is recycled shall not be subject to assessment.