author: Arthur H. Healey, J. Shea, J.,

text:
    State of Connecticut v. Willie L. Harrell
    (11852)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued December 13, 1985
    decision released March 25, 1986

      Charles E. Oman, certified legal intern, with whom were Timothy H. Everett and, on the brief, Mark Soboslai, Bernadette Conway and Mona Camhe, certified legal interns, for the appellant (defendant).

      Edmund C. A. Tiryakian, special deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Julia DiCocco Dewey, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Willie L. Harrell, was convicted, after a jury trial, of burglary in the second degree with a firearm, in violation of General Statutes § 53a-102a, and attempted robbery in the first degree, in violation of General Statutes §§ 53a-49 (a) and 53a-134 (a) (4). The defendant appeals from the judgment of conviction on these charges.

The defendant raises three issues on appeal. He claims that: (1) the trial court abused its discretion in denying his motion in limine to prevent impeachment by the use of evidence of prior convictions; (2) the ruling on the motion in limine effectively precluded the exercise of his state and federal constitutional right to testify; and (3) the trial court erred in its jury instructions on identification. We find no error.

The jury reasonably could have found the following facts relevant to this appeal: On March 20, 1981, at approximately 7 p.m., the Crawford family returned to their Guilford home from a restaurant and found an unfamiliar car parked in their circular driveway. John Crawford, the father, parked behind the vehicle and he and his wife Catherine exited their car and approached the other vehicle, a red and black Chevrolet. Their three children, ages 12,11, and 9, remained in the back seat of their car. No one was in the Chevrolet. The Craw-fords heard the sound of breaking glass and decided to leave the area. Before they could do so, the defendant approached them from the side of the house, ordered Catherine Crawford to “get [her] hands up,” and then ordered the family into their house. He held a flashlight in his left hand, but he kept his right hand in his pocket, telling them that he had a “pistol.” The Crawford family, however, never saw a weapon. John Crawford turned the lights on in the foyer of the house but the defendant ordered him to turn them off. The children remained in the kitchen of the home while the defendant questioned their parents in the foyer about valuables. The defendant did not take the stereo or television, the small amount of cash, or the credit cards that the Crawfords offered him. Throughout the five to ten minute confrontation, John Crawford was unable to make out the defendant’s features because the defendant was shining a flashlight into his eyes. He was able, however, to determine that the intruder was a black male, approximately six feet tall. Several times the defendant gestured and said that “Crazy Tommy” was with him, that “Crazy Tommy” was uncontrollable and he ordered “Tommy” to “come up.” The defendant became nervous and concerned that someone had seen his license plate. Without taking any of the Crawfords’ property, the defendant started to leave. As he approached his car, he turned to the left and called: “Come up, Tommy. It is okay.” No one ever saw a second individual. After the defendant was in his car, friends of the Crawfords drove into the circular driveway and blocked his exit. The defendant yelled to have that car moved out of his way and Catherine Crawford ran to the car, removed a girl from the car and told the girl’s father to leave. Both drivers then drove out of the driveway.

Michael, the twelve year old son of Catherine and John Crawford, memorized the license plate number and color of the burglar’s car (“red [with] black roof”) and, once in the kitchen, wrote this information on his hand with a pen. Catherine Crawford also memorized the license plate number. Michael and Catherine were able to give a description of the defendant to the police who arrived at their home immediately afterward. By using the license plate number memorized by Michael, the police were able to determine that the vehicle was registered to the defendant. At a photo array four days later, Michael and Catherine independently selected the defendant’s photo as the man who had burglarized their home.

At trial, after the state had rested, the defendant made a motion for a judgment of acquittal, which the trial court denied. The defendant then filed a written motion in limine requesting that, if he should testify, the court prohibit the state from using for impeachment purposes the defendant’s prior convictions in 1971 for two counts of robbery with violence and in 1976 for attempted burglary in the third degree. Before argument on the motion, defense counsel orally amended his motion so that it included a total of four prior convictions, two counts of robbery with violence and one count each of forgery and attempted false pretenses. The release date from incarceration for the two 1971 robbery convictions was June 29, 1973, which was “nine years, three months, one day” from the date the motion was argued in court. The trial court denied the motion. The defendant did not testify, and the jury returned guilty verdicts.

I

The defendant’s first claim of error is that the trial court’s ruling that the defendant could be impeached with his two prior convictions for robbery with violence was an abuse of discretion because of their prejudicial impact and remoteness in time to the present crimes. A criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue. General Statutes § 52-145 (b). See State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982); Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965).

“A trial court’s decision denying a motion to exclude a witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion.” State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984); State v. Braswell, supra; State v. Bitting, 162 Conn. 1, 10-11, 291 A.2d 240 (1971). This court has identified three factors that should be analyzed in order to determine whether a prior conviction is to be admitted: “(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time.” State v. Nardini, supra, 522.

We recognize that “[wjhere the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” Id.; see State v. Carter, 189 Conn. 631, 642-43, 458 A.2d 379 (1983). “There is, of course, no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried when that prior conviction is offered to attack his credibility.” State v. Binet, supra, 622. The trial court specifically noted, after the state’s case-in-chief and prior to argument on the motion in limine, that the case “boil[ed] down at this point to a pure question of credibility. That being, was the defendant there that night or was he not.” While there is some similarity between the defendant’s two prior convictions for robbery with violence and burglary in the second degree and attempted robbery in the first degree, this similarity, standing alone, does not necessarily create prejudice which outweighs probative value. “In moving to bar introduction of prior convictions a defendant in a criminal case bears the burden of demonstrating the specific harm that will occur if the convictions are introduced.” State v. Braswell, supra, 308. The trial court must undertake a balancing test to determine if the probative value of the prior convictions outweighs any prejudicial impact. “ ‘This balancing of intangibles —probative values against probative dangers—is so much a matter where wise judges in particular situations may differ that a lee-way of discretion is generally recognized.’ McCormick, Evidence, pp. 319-320.” State v. Bitting, supra, 10; State v. Nardini, supra, 522, 528. As in State v. Braswell, supra, “the record indicates that the defendant’s argument in support of his motion amounted to little more than a perfunctory recitation of the prior conviction, a conclusory statement as to its prejudicial effect, and a request for a ruling.”

While in this case the defendant also argued the third Nardini factor, the remoteness in time of the conviction, the trial court, well within its discretion and in considering all the factors, determined that “remoteness is not really involved here.” Acknowledging that the rule in Connecticut is moving closer to the federal ten year rule, the trial court deemed a nine year old release date to satisfy the remoteness in time factor. See State v. Nardini, supra, 526. In addition, the trial court concluded that “the prejudice is [not] that great,” specifically noting that “the larceny which is the underlying crime in any robbery does go directly to the credibility of the robber or larcener . . . .” See, e.g., State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984); State v. Nardini, supra, 526. As we have noted, “crimes involving larcenous intent imply a general disposition toward dishonesty,” and convictions for this type of crime “obviously bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission.” State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984). Thus, robbery with violence is a crime which is relevant to the defendant’s character for truthfulness and veracity.

The trial court sufficiently reflected upon and weighed the three factors enunciated in Nardini and its ruling on the motion in limine cannot be said to have been an abuse of discretion.

II

The defendant’s second claim is that the trial court’s ruling on his motion in limine effectively precluded him from exercising his constitutional right to testify as guaranteed by article first, § 8, of the state constitution and the sixth and fourteenth amendments to the federal constitution. We do not agree. We recognize that a defendant may be faced with the dilemma of either testifying and facing the possibility of impeachment by prior convictions or not taking the stand and thus not personally being able to present his version of the events to the jury. Nevertheless, it has been recognized that the constitutional right to testify does not carry with it a right to prohibit impeachment by prior convictions. See McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971); Spencer v. Texas, 385 U.S. 554, 561, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967); Brown v. United States, 356 U.S. 148, 155, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958); People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979); State v. Kelley, 413 A.2d 300, 303 (N.H. 1980). In McGautha, the United States Supreme Court said: “It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. . . . Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.” McGautha v. California, supra, 215. “A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics.” Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980).

The defendant claims that his decision not to testify at trial was directly related to the trial court’s ruling on the motion in limine. As a result of the ruling, the defendant argues, he was prevented from exercising his fundamental right to present a defense, specifically his alibi defense. The state argues that the trial court’s ruling denying the defendant’s motion in limine is not reviewable on appeal if the defendant does not testify at trial. The state argues that the ruling on a motion in limine is merely provisional, an “advisory, tentative indication of what the court is likely to do if faced with the same situation during trial . . . thereby allowing a defendant a more intelligent exercise of his fifth amendment rights” and allowing him to “avert the possibility of impeachment, if he so chooses.” The state also claims that there is “no indication whatsoever” on the record that the defendant represented to the trial court that his decision on whether to testify hinged on the court’s ruling on the motion in limine. The defendant, in his reply brief, claims that the statement in his written motion in limine that he was “desirous of testifying in his own defense” is a sufficient indication that the defendant intended to testify.

For the purposes of this appeal and because of our disposition of the first issue, we will follow the ruling of Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), prospectively only. That ruling is not to be made applicable to our disposition of this case. In the case before us, the defendant was faced with possible impeachment by the introduction of evidence of his convictions of four prior felonies. On appeal, he alleges a constitutional error because the ruling, at least as to the two robbery convictions, caused him to forego testifying. While this court has previously reviewed on appeal trial courts’ rulings on motions in limine on the admissibility of prior convictions; see State v. Binet, supra, 621; State v. Iasevoli, 188 Conn. 325, 326-27, 449 A.2d 996 (1982); State v. Nardini, supra, 529; we have decided to follow the holding of the United States Supreme Court in Luce v. United States, supra. The Luce court, in an opinion written by Chief Justice Burger, held that to “raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” Luce v. United States, supra, 43. The reasons for requiring the defendant to testify are several. If the defendant testifies at his trial and then challenges the trial court’s ruling on the admissibility of impeachment evidence, the reviewing court “would then have had a complete record detailing the nature of [the appellant’s] testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury’s verdict.” Id., 41. In addition, Luce acknowledged that a reviewing court is particularly “handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true [where a court is called upon] to weigh the probative value of a prior conviction against the prejudicial effect to the defendant.” Id. Therefore, to accomplish this balancing, “the court must know the precise nature of the defendant’s testimony, which is unknowable when . . . the defendant does not testify.” Id.

Although we follow Luce prospectively, reference to the defendant’s trial demonstrates why it is judicious to do so. The defendant did not testify at his trial because, as he now claims, he did not want to be impeached with evidence of his prior crimes. On appeal, he challenges the admissibility of only the two robbery convictions. A reviewing court is unable to determine accurately that the defendant’s decision not to testify was solely the result of the ruling as to the robbery convictions and not because of the ruling as to his convictions for forgery and attempted false pretenses. There was scant evidence that the defendant would have offered any testimony had the motion been granted and no evidence at all that the trial court was unwilling to consider altering the ruling on the basis of the defendant’s actual trial testimony. “Any possible harm flowing from a [trial] court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the [trial] judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Id., 41-42. “Because an accused’s decision whether to testify ‘seldom turns on the resolution of one factor’ ... a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify.” Id., 42.

We follow Luce prospectively in order that those defendants who have relied on previous decisions of this court that did not require a defendant to testify will not be prejudiced by this rule. We look to the three factors outlined in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971), to demonstrate that a retroactive application of the Luce holding would be substantially unjust. See Linkletter v. Walker, 381 U.S. 618, 639, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965)(holding that the rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 [1961], does not apply retroactively to state court convictions which were already final before the decision was published). Our ruling today satisfies the first factor delineated in Chevron because it “establishes] a new principle of law . . . by overruling clear past precedent on which litigants may have relied . . . .’ ” Chevron Oil Co. v. Huson, supra, 106; see State v. Johnson, 188 Conn. 515, 518A, 450 A.2d 361 (1982). The second factor is “ ‘whether retrospective operation will further or retard its operation.’ ” Chevron Oil Co. v. Huson, supra, 106-107. The Ninth Circuit case of United States v. Givens, 767 F.2d 574, 578 (9th Cir. 1985), is instructive on this second factor. Cf. United States v. Dunbar, 767 F.2d 72 (3d Cir. 1985) (appeals court applied holding of Luce retroactively for the defendant). The facts of Givens are analogous to the facts of the case before us. In Givens, the defendant’s trial preceded the United States Supreme Court’s decision in Luce. At his trial, the defendant sought to preserve for appellate review the claim of improper impeachment with a prior conviction and did so as required “by the law of the [Ninth] Circuit” at the time of his trial. United States v. Givens, supra, 577, 578. The defendant did not testify at trial. The Ninth Circuit stated that although “application of the Luce principle to the present case arguably would further the purpose of the rule by providing the trial court with concrete testimony on which to base its ruling . . . the first and third factors militate so strongly against retroactive application that they outweigh the second factor.” Id., 578. The third Chevron factor is whether applying the new decision retroactively will produce substantial inequitable results. Chevron Oil Co. v. Huson, supra, 107. As did the court in Givens, we refuse here to impose a “subsequently-created [requirement] for preserving a claim on appeal on a defendant who did all that was necessary to comply with the law applicable at the time of his trial.” United States v. Givens, supra, 579; see Reed v. Reincke, 155 Conn. 591, 596, 236 A.2d 909 (1967); Chykirda v. Yanush, 131 Conn. 565, 569, 41 A.2d 449 (1945). To do otherwise would produce a substantially inequitable result.

Ill

The defendant’s final claim is that the trial court erred in failing to give the requested “model” Telf aire instruction on identification. United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). The defendant claims that the trial court granted his request to charge on this issue but failed to give the requested instruction. He claims that the failure to instruct on the Telfaire charge constituted reversible error because it violated his right to an “adequately instructed jury.” The defendant also argues that this failure to charge violated Practice Book § 852 and constituted reversible error. We do not agree.

“When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.” State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). “The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978). The defendant concedes that Telfaire instructions “need not be given verbatim to ensure that the attention of the jury is properly guided.” The instruction given by the trial judge covered the substance of the written request. While the instruction did not delineate specific factors for the jury to consider in assessing identification testimony in such detail as in Telfaire, it did caution the jury to “consider carefully whether or not that witness is accurate in his belief and in his testimony.” It told the jury that the “vagaries” of eyewitness identification were “well-known” and that the jury should receive such testimony “with caution” and consider it “carefully.” In focusing the jury’s attention to such testimony, the court also instructed it to “scrutinize with care all such eyewitness identifications.” The jury was also charged to “consider what opportunity each person had to make an observation, whether or not that person had seen the defendant before and all of the other circumstances surrounding such observation.”

Further, we do not agree with the defendant’s contention that identification was the “sole material element of the crimes in substantial dispute.” Two witnesses, Catherine Crawford and her son Michael, were independently able to select the defendant from a photographic array as well as to make an in-court identification at trial. The factual circumstances of this case indicate that this is not a case that exhibits “the special difficulties often presented by identification testimony that would require additional information be given to the jury in order ... to repose confidence in their ability to evaluate the reliability of the identification.” United States v. Telfaire, supra, 556. The eyewitnesses were not “uncertain, unclear or inconsistent.” State v. Harden, supra, 322. The defendant’s claim that the eyewitnesses’ description of the defendant to the police as “cleanshaven” was inconsistent with subsequent photographic and courtroom identifications of the defendant who had facial hair does not, in and of itself, mandate more detailed instructions. There was extensive cross-examination of the eyewitnesses by defense counsel as to their ability to see and identify the individual who committed the robbery. We note that in State v. McKnight, 191 Conn. 564, 582, 469 A.2d 397 (1983), the defendant had also requested the “model” Telfaire instruction. In McKnight, the trial court did not adopt verbatim the Telfaire instruction but did give an instruction which “adequately covered the dangers of misidentification.” State v. McKnight, supra, 583. As in McKnight, the charge as given here was adequate to address the “dangers of misidentification” under the facts of this case, especially when the main focus of the trial was a “pure question of credibility.” The specific instructions given to the jury were a correct statement of the law, and our review indicates that the charge as a whole fairly presented the case to the jury so “that injustice was not done under the law to the legal rights of the defendant.” State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980); State v. Manley, 195 Conn. 567, 586, 489 A.2d 1024 (1985); see State v. McKnight, supra, 584.

There is no error.

In this opinion Dannehy, Santaniello and Callahan, Js., concurred.

Shea, J.,

concurring. I disagree with part I of the opinion, which finds no error in the denial of the motion in limine that sought to prevent the state from using the defendant’s two 1971 convictions for robbery with violence to impeach him. Under the balancing test we have approved; State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970); the prejudicial effect of these crimes was quite substantial in view of their similarity to the offenses charged in the present case. State v. Carter, 189 Conn. 631, 642-44, 458 A.2d 379 (1983). “Where the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” State v. Nardini, supra, 522. The probative value of the robbery convictions, however, was slight, not only because their age barely falls within the ten year federal limitation we have referred to as a “rough bench mark”; State v. Nardini, supra, 526; Fed. R. Evid., rule 609 (a); but also because of the minimal significance of these convictions as reflecting upon the credibility of the defendant in comparison to his convictions in 1976 for forgery and attempted larceny by false pretenses, which were also available for impeachment.

The forgery and false pretense convictions clearly involved dishonesty and falsehood and, therefore, were highly significant upon the credibility of the defendant. State v. Carter, supra, 644. The slight additional significance on credibility the remote convictions for robbery may have had was clearly outweighed by the substantial prejudice their use entailed because of their similarity to the crimes on trial. Since the substantial prejudicial effect of the robbery convictions cannot be gainsaid and their probative value on the issue of the defendant’s credibility is only marginal at best, a proper application of the balancing test, with all due deference to trial court discretion, plainly required exclusion of those convictions from evidence.

Although I would find error in the refusal of the trial court to bar the use of the robbery convictions, I am persuaded that the error was harmless. The applicable standard for this nonconstitutional error is the probability of a different outcome. State v. Randolph, 190 Conn. 576, 588-89, 462 A.2d 1011 (1983). “The erroneous admission of the [conviction] was harmful only if the improper [evidence] was likely to have affected the jury's verdict.” State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982). The testimony that two witnesses, the mother and her son, had separately observed and memorized the license plate on the car found to have been registered in the name of the defendant, as well as their independent selection of him as the offender from photo arrays that are unchallenged, is overwhelming evidence of guilt that more than adequately satisfies this standard.

Accordingly, I concur in the result.

       General Statutes § 53a-102a provides in relevant part: “(a) A person is guilty of burglary in the second degree with a firearm when he commits burglary in the second degree as provided in section 53a-102, and in the commission of such offense he uses or is armed with and threatens to use or displays or represents by his words or conduct that he possesses a pistol, revolver, rifle, shotgun, machine gun or other firearm. No person shall be convicted of burglary in the second degree and burglary in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-134 (a) (4) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. ...”

       A motion in limine “in a broad sense [refers] to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984).

       “MOTION IN LIMINE
      “Defendant in the above-entitled action moves this Court for an order prohibiting the use of prior felony convictions, to wit, two counts of robbery with violence in 1971 and criminal attempt at burglary in the third degree in 1976, to impeach his credibility should he testify. Defendant, who is desirous of testifying in his own defense, argues that the simitarily [sic] of those felony convictions is too close in substance to the instant crimes charged so as to cause prejudice far in excess of the probative value on credibility they might carry.
      “Alternatively, defendant moves this court to order that mention be made only of the fact that the defendant stands convicted of three felonys [sic], prohibiting mention of what those felonys [sic] are.”

       Despite the fact that the defendant’s motion states that one of the convictions he wished to have excluded was a 1976 conviction, it is not at issue here. Although the defendant’s motion in limine included his prior convictions for forgery and attempted false pretenses, he does not raise as error on this appeal the trial court’s ruling as to the admissibility of those two prior convictions. He conceded during oral argument on the motion that the prior convictions for forgery and attempted false pretenses “would have a very strong bearing on credibility.” We do not review, therefore, the trial court’s ruling as to these crimes.

       The defendant’s four prior convictions were all for felonies and carried possible terms of imprisonment of more than one year.

       In State v. Nardini, 187 Conn. 513, 524, 447 A.2d 396 (1982), we noted that rule 609 of the federal rules of evidence attempts to accommodate “these conflicting views of human nature” concerning the impact on a jury of prior conviction evidence. In that regard, we note that “[ajbout forty states have taken a position similar to Fed. R. Evid. 609, providing for the exercise of discretion in the admission of evidence of most prior convictions. See 3 J. Weinstein & M. Berger, Evidence, par. 609 [12], at 609-109 to 609-137 (1982 & Supp. 1984).” Commonwealth v. Maguire, 392 Mass. 466, 468, 467 N.E.2d 112 (1984).

       The defendant’s alibi, that two hitchhikers that he had picked up had stolen his automobile early on the evening of the robbery and that he had called his girlfriend and asked her to report the theft to the police, did come in through the testimony of his girlfriend and the arresting police officer to whom he had given this alibi story.

       The defendant cites State v. Iasevoli, 188 Conn. 325, 328 n.3, 449 A.2d 996 (1982), as supporting his claim that there was a sufficient indication that he wanted to testify at his trial.

        Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), construed federal rule of evidence 609 (a) which provides: “General Rule.—For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.”
      While we do not have this rule specifically articulated in our procedure, its amenability to our practice and the rationale of the Luce court in construing it is persuasive so that we have determined to follow Luce.

       “The charge requested by the defendant emphasized four basic considerations: (1) the capacity and opportunity of the witnesses to observe the offender; (2) whether the identification made by the witnesses was from their own recollection; (3) the failure or inconsistency of the identification; and (4) the credibility of the witnesses.” State v. McKnight, 191 Conn. 564, 582 n.16, 469 A.2d 397 (1983).

       After the instructions were given to the jury and the jury was excused, the following discussion took place: “Mr. Sturman: Your Honor, I am going to take an exception to your Honor’s not including in total the Telfaire instruction.
      “The Court: Very well. I don’t think I mentioned on the record that granting both of your requests of charge as charged [sic].”

       Practice Book § 852 provides in pertinent part: “If a request to charge is granted, the judicial authority shall apply the proposition of law to the facts of the case. A principle of law should be stated in but one request and in but one way. Requests attempting to state in different forms the same principle of law as applied to a single issue are improper.”

       The trial court charged the jury as follows: “You have heard testimony from eyewitnesses in this case. The vagaries of eyewitness identifications are well known and you should receive with caution any identification testimony from an eyewitness and consider carefully whether or not that witness is accurate in his belief and in his testimony. You should scrutinize with care all such eyewitness identification. You should consider what opportunity each person had to make an observation, whether or not that person had seen the defendant before and all of the other circumstances surrounding such observation. Eyewitness identification is sometimes unreliable but its weight like the weight of any testimony is ultimately for you to decide.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Willie J. Fuller
    (12105)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued January 7
    decision released March 25, 1986

      John Watson, assistant public defender, with whom was Joette Katz, public defender, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, were Arnold, Markle, state’s attorney, and Laura Ingersoll, legal intern, for the appellee (state).
   Callahan, J.

The defendant was charged in an amended information with robbery in the first degree in violation of General Statutes § 53a-134 and was found guilty by a jury. The trial court sentenced him to imprisonment for twelve years, suspended after eight years. He appeals from the judgment rendered on the verdict. We find error.

The only issues we need consider on appeal are the defendant’s claims that the trial court erred by failing to instruct the jury: (1) that it could consider the threat of the imminent use of physical force upon a third person as an element of the defense of duress; and (2) that it was the state’s burden to disprove duress, beyond a reasonable doubt. When we are reviewing a trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” State v. Anonymous (1977-9), 34 Conn. Sup. 612, 616, 380 A.2d 7 (1977); see State v. Cassino, 188 Conn. 237, 239, 449 A.2d 154 (1982); State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980).

The defendant was arrested as a result of a robbery which occurred in New Haven in the early evening of September 8, 1982. The victim, Tracy Serfilippi, was employed as a pizza deliveryman. On the evening of the robbery, he was making deliveries in a jeep when, unable to locate an address, he stopped and asked the defendant, whom he knew by sight, for directions. The defendant got into the front passenger seat and went with the victim. The two were unsuccessful in making the delivery and returned to the corner of Congress and Hallock Streets where they had originally met. At this point, Raymond Beverly, who was acquainted with the defendant, but not with the victim, got into the rear seat. All three then drove to the area of Sylvan Avenue, where Beverly left the jeep for a few minutes. When he returned and resumed his seat, he produced a gun and waved it about, pointing it at both the defendant and the victim. The defendant testified that Beverly was “wild” and acting “crazy” and that he feared that Beverly might shoot. Pleading with Beverly not to shoot, the defendant reached over and took money from the victim and threw it in the rear seat. He claimed that he did so because the victim was not moving fast enough and he thought Beverly was going to shoot him.

The defendant also testified that he had not planned the robbery with Beverly and that he had tried to tell the victim that he was not involved, but that the victim was hysterical and would not listen. The defendant did not dispute that the victim had been robbed and that he had participated in the robbery. He maintained, however, that he had been coerced into doing so and offered a defense of duress.

Needless to say, the victim’s account of what occurred differed substantially from that of the defendant and was considerably less laudatory of the defendant’s efforts and motivation than the version recited above. The victim did, however, testify that the defendant told Beverly not to shoot.

The defendant filed a written request to charge concerning his claimed defense of duress in which he asked the trial court to charge the entire text of General Statutes § 53a-14 and also to instruct the jury that it was the burden of the state to disprove the defense of duress beyond a reasonable doubt. The trial court charged as to the defense of duress and read a major portion of General Statutes § 53a-14 to the jury. However, it omitted the words “or a third person,” and thereby removed from the jury’s consideration the defendant’s claim that his participation in the robbery was coerced by the threatened imminent use of physical force upon the victim as well as upon himself. The trial court also failed to instruct the jury that it was the burden of the state to disprove the defense of duress beyond a reasonable doubt. See General Statutes § 53a-12. Although the defendant duly excepted, the trial court did not expand on its charge.

Duress is a legally recognized defense in this state; State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979); and the legislature by statute has provided that the threatened imminent use of physical force upon a third person may constitute duress. See General Statutes § 53a-14. The state contends that there was insufficient evidence that the defendant was coerced by any threat of physical force directed toward the victim so as to require the court to charge that the defense of duress could be predicated on the threatened imminent use of physical force upon a third person. We disagree.

“When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.” Id., 707. If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. Id., 707-708. “[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). “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. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). Where the legislature has created a legally recognized defense, in this case duress, this fundamental constitutional right includes a properjury instruction on the elements of the defense of duress so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt. See id., 660-61.

The defendant testified that Beverly had been “wild,” had acted “crazy” and had waved a gun around, pointing it at both him and the victim, and that he had been afraid that Beverly might shoot. He also testified that he had taken the money from the victim and had thrown it in the rear seat because he had thought Beverly might shoot the victim. If the defendant’s testimony is taken in the light most favorable to supporting his request to charge, as it must be; State v. Arroyo, supra, 430; it might have provided sufficient evidence for the jury to find that the defendant participated in the robbery because he was coerced by the threatened imminent use of physical force upon Serfilippi as well as upon himself. The court’s charge, however, prevented the jury from giving any consideration to the threatened imminent use of physical force upon the victim as motivation for the defendant’s participation in the robbery. Since there was evidence to support the defendant’s request to charge, the failure of the trial court to include any reference to “a third person” in its jury instructions deprived the defendant of the opportunity to present a legally recognized defense. “ ‘[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ ” State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). Because it is reasonably possible that, in this instance, the trial court’s charge did not perform that function but rather misled the jury, we find error. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982).

The defendant also assigns as error the failure of the trial court to instruct the jury that it was the state’s burden to disprove the defense of duress beyond a reasonable doubt. The trial court did charge the jury that, in order to convict the defendant of robbery, the state had to prove his intent to commit that crime beyond a reasonable doubt. The state’s position is that, since duress would negate intent, the court’s charge effectively instructed the jury that it was the state’s burden to disprove duress beyond a reasonable doubt. We disagree.

In its instructions, the trial court did not relate duress to intent or explain to the jury that duress negated intent or that, if the state proved intent beyond a reasonable doubt, it disproved duress beyond a reasonable doubt. Without such an instruction, the jury was left to its own devices to determine the relationship between intent and duress. That is a question on which there exists a difference of opinion. “Whether duress is inconsistent with specific intent raises broad philosophical issues concerning the nature of voluntary action for purposes of criminal responsibility and the appropriate conditions for holding a person morally blameworthy. Some view duress as precluding the mens rea required for criminal culpability. [Citations omitted.] However, others contend that duress does not preclude a finding of the voluntariness required for criminal responsibility because the defendant, though motivated by an impulse to save himself or another from serious harm, nonetheless forms an intention to commit a crime and chooses to act upon that intention.” (Emphasis omitted.) United States v. Mitchell, 725 F.2d 832, 835 (2d Cir. 1983). A jury should not be called upon to resolve such an esoteric philosophical question at the expense of the defendant. An instruction, in accordance with General Statutes § 53a-12, that duress was a defense to the crime charged and that it was the state’s burden to disprove it beyond a reasonable doubt would have enabled the jury to make a reasoned and guided assessment of the role of duress in the case. We are not persuaded that simply instructing the jury that it was the state’s burden to prove intent beyond a reasonable doubt adequately informed the jury that it was the state’s burden to disprove duress beyond a reasonable doubt.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-14. duress as defense. In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

       “DEFENDANT’S REQUEST TO CHARGE:
      “DEFENSE THEORY OF THE CASE: DURESS, § 53a-[141
      “In this case, the defense maintains that Mr. Fuller is not guilty because he acted as he did only under duress. Duress is a valid defense under our law which the State must disprove beyond a reasonable doubt. Section 53a-14 of our statutes states that:
      “In any prosecution for [an] offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness [. . . ] would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
      “In other words, if you find that Mr. Fuller engaged in actions constituting a robbery in the first degree, you still must find him not guilty unless the prosecution proves beyond a reasonable doubt that he was not acting under duress. To disprove duress, the state must prove beyond a reasonable doubt, first, that Mr. Fuller’s actions were not coerced by the use or threatened imminent use of physical force upon himself or a third party; and second, that a person of reasonable firmness would have been unable to resist this force or threatened force.
      “Since the State has the burden of disproving duress beyond a reasonable doubt, you must find Mr. Fuller not guilty unless you are convinced beyond a reasonable doubt that he was not acting under duress, as I have defined that term for you. If you have a reasonable doubt as to whether Mr. Fuller was acting under duress, you must find him not guilty.”

       “[General Statutes] Sec. 53a-12. defenses; burden of proof, (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.
      “(b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”


author: Santaniello, J.

text:
    State of Connecticut v. Dwight K. Fullwood
    (11245)
    Peters, C. J., Healey, Dannehy, Santaniello and Covello, Js.
    Argued November 14, 1985
    decision released April 1, 1986

      John R. Williams, with whom, on the brief, were Sue L. Wise and Beth Merkin, law student intern, for the appellant (defendant).

      Robert J. Enright, special assistant state’s attorney, with whom were Carl Schuman, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, and Edward F. Spinella, former assistant state’s attorney, for the appellee (state).
   Santaniello, J.

After a trial by jury, the defendant, Dwight Fullwood, was found guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 and was sentenced to a term of not less than four nor more than eight years. He appeals claiming that the court, by prohibiting him from effectively impeaching the complaining witness on cross-examination, violated his state and federal constitutional rights to confrontation. We find no error.

The jury could reasonably have found the following facts. On July 28, 1979, the victim spent most of the evening in the company of some friends visiting an acquaintance at his apartment. During the course of the evening she drank some wine. After her companions left, she remained with her host until he fell asleep. She then left the apartment and decided to walk to her home on Franklin Avenue where she was living with her mother and brothers. While she was walking home, a man subsequently identified as the defendant drove up and offered her a ride. He asked her if she “wanted to smoke a joint” before she went home. She agreed, and they drove to his apartment in East Hartford. Upon arrival at the parking area near his apartment, he asked her to “come upstairs with him,” but she resisted and said she wanted to wait for him in the car. He grabbed her and forcibly brought her upstairs.

Once in the apartment, the defendant undressed himself. The victim testified that before she knew it, “he had me by my hair, and he was trying to make me give him oral sex.” She tried to escape, but the defendant picked her up, covered her mouth, and dragged her into the bathroom. He undressed her and told her that he wanted them to shower together. He got into the shower, but when she screamed, he struck her twice in the face, dragged her into the bedroom and raped her. After he had left the room, she grabbed a towel, covered herself and ran from the apartment. A woman in a nearby apartment offered help and called the police. Later that night at the police station, the victim positively identified the defendant as the man who had raped her. At trial, she again made a positive identification of the defendant.

On direct examination, the victim testified that she was presently residing with her mother on Franklin Avenue in Hartford, when, in fact, she was being held at the Niantic correctional center. During cross-examination, defense counsel made an offer of proof outside of the presence of the jury in which he alleged that the witness had lied about her residence. He requested permission to impeach her credibility using the “lie,” but the state objected claiming that she had testified truthfully and that her incarceration was irrelevant to the issue of credibility. The court sustained the objection and restricted cross-examination accordingly.

The defendant’s sole claim on appeal is that the trial court, by prohibiting the defendant from attempting to impeach the complaining witness on cross-examination on the topic of the witness’ address, violated his constitutional rights as guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. “Although it was not raised at trial, we will address this claim because ‘the Sixth Amendment’s right of an accused to confront the witnesses against him is ... a fundamental right . . . .’ Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977); see State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).” State v. Rawls, 198 Conn. 111, 114 n.4, 502 A.2d 374 (1985). The defendant claims that his counsel was precluded from showing that the victim had “lied” on direct examination and that this issue was relevant to the witness’ credibility and motive to testify.

“ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. . . .’ ” (Emphasis in original.) Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), quoting 5 Wigmore, Evidence (3d Ed. 1940) § 1395, p. 123. The defendant’s right to confrontation is preserved, if, through cross-examination, defense counsel is “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, supra, 318. “ ‘The defendant’s right to cross-examination ... is not absolute and is subject to reasonable limitation. . . .’ State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). ‘Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.’ State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).” State v. Jackson, 198 Conn. 314, 318-19, 502 A.2d 865 (1986). The trial court may, for instance, properly exclude inquiry on cross-examination where the evidence is irrelevant or immaterial. State v. Jackson, supra, 318; State v. Reed, 174 Conn. 287, 303-304, 386 A.2d 243 (1978).

We turn first to the defendant’s argument that he should have been permitted to cross-examine the victim to show that she had lied in her direct testimony. The victim’s testimony on direct examination concerning her residence was as follows:

“Q. And where do you presently live in Hartford?

“A. [On] Franklin Avenue.

“Q. And who do you live there with?

“A. My mother.

“Q. Do you live there with anyone else besides your mom?

“A. My brothers.” (Emphasis added.)

The defendant claims that he wanted to cross-examine her on where she lived to show the jury that she actually lived in Niantic at the time. He claims that this line of inquiry was relevant to the issue of credibility. Our reading of the record indicates, however, that the witness responded truthfully to the questions that were posed. It was reasonable for the witness to have said that she lived in Hartford for two reasons. First, Hartford was her primary residence. A college student asked about where he or she lived would ordinarily respond with a home address and not with a temporary dormitory address. Likewise, a traveling salesman if asked that same question, would provide his home address and not his temporary hotel address. Second, she was asked where she lived “in Hartford.” Her answer, “[On] Franklin Avenue” was an appropriate response. Thus, when the trial court ruled that defense counsel could not pursue the issue on cross-examination, it was merely excluding irrelevant inquiry concerning her residence that had no bearing on her credibility. Such a limitation on cross-examination is not violative of the defendant’s constitutional right to confrontation.

The defendant also argues that the trial court erred in restricting inquiry into the victim’s residence because her incarceration was probative of her motive to testify. He claims that she may have testified against him in order to gain favorable treatment in the pending prosecution against her.

We recognize that cross-examination concerning motive, interest or bias is a matter of right and may not be unduly restricted. State v. Milum, 197 Conn. 602, 609, 500 A.2d 555 (1985); State v. Vitale, supra, 402. If the defendant does not specifically request cross-examination on the issue of motive, interest or bias, however, he may waive his right to confront the witness on those issues. See State v. Rawls, 198 Conn. 111, 119, 502 A.2d 374 (1985). This is so because he cannot be heard to complain when he chose not to cross-examine the witness in this respect. State v. Reed, 174 Conn. 287, 300, 386 A.2d 243 (1978).

During trial, the defendant had the opportunity to cross-examine the victim extensively on her motive to testify, but he never raised the issue. In argument to the court during his offer of proof, the defendant did not question the witness’ motive, and the court’s ruling on the matter did not preclude the defendant from later raising the issue. When the witness mentioned during cross-examination that she was in Niantic prior to trial, the defendant clearly had the opportunity to pursue the point, yet he chose not to. Under the circumstances, we conclude that the defendant waived his right to confront the witness on this issue. See State v. Rawls, supra, 118, State v. Reed, supra.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: CLASS B FELONY: ONE YEAR NOT SUSPEND ABLE. (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.”

       The witness’ references to Niantic were as follows:
      “Q. Is your memory better today than it was the other day?
      “A. Yes.
      “Q. Why?
      “A. Because I put a lot of thoughts in it. I was thinking about it in Niantic.
      * ** *
      “Q. Did you talk to anyone yesterday?
      “A. No. Yes. At Niantic. They asked me what I had to go to court for, and I said a rape charge.”


author: Peters, C. J.

text:
    Mary Jane Jones v. Charles Edward Jones
    (11036)
    Peters, C. J., Shea, Santaniello, Callahan and Moraghan, Js.
    Argued February 11
    decision released April 1, 1986

      Dennis G. Ciccarillo, for the appellant (defendant).

      Christopher C. Noble, for the appellee (plaintiff).
   Peters, C. J.

The only issue in this appeal is the scope of the statute that permits the Superior Court to exercise personal jurisdiction over a nonresident defendant with regard to the support of children. The trial court rendered a decree of divorce on a complaint filed by the plaintiff, Mary Jane Jones, without then having personal jurisdiction over the defendant, Charles Edward Jones. Ten years later, when the defendant had been served with actual notice of the pendency of a motion to open and modify the judgment, the court amended its judgment to order the defendant to make periodic child support payments to the plaintiff, Mary Jane Jones, and to provide medical insurance for the benefit of their child. The defendant appeals from this judgment.

The underlying facts are undisputed. In 1966, the plaintiff married the defendant in New Britain, Connecticut. In December of that year, the plaintiff gave birth to a daughter. Shortly thereafter the couple separated. The plaintiff remained in Connecticut with the child while the defendant left the state without informing the plaintiff of his destination.-

In 1970, still ignorant of the defendant’s whereabouts, the plaintiff initiated divorce proceedings in Connecticut Superior Court. The court made several unsuccessful attempts to notify the defendant of the pendency of the action. Having determined that further efforts to contact the defendant would be futile, the court held a full hearing, and, pursuant to General Statutes (1958 Rev.) § 46-17, on February 24, 1971, rendered a judgment declaring the parties divorced. In the defendant’s absence, the court awarded custody of the minor child to the plaintiff but made no order concerning child support.

In 1981, after having located the defendant in Oregon, the plaintiff moved that the trial court reopen the 1971 judgment and order the defendant to pay child support. The trial court scheduled a hearing on the motion and ordered that the defendant be notified. An Oregon court officer served notice upon the defendant, who then filed a motion to dismiss for lack of jurisdiction to grant the plaintiffs request. The trial court, Covello, J., denied the motion, finding that the relevant long-arm statute, General Statutes § 46b-46, permitted the court to exercise jurisdiction and that the court’s assertion of jurisdiction did not violate the defendant’s constitutional rights. On September 22,1981, the court, Bernstein, J., modified the 1971 judgment to require the defendant to pay the plaintiff $40 per week in child support and to maintain medical insurance for his child. This order was prospective only and did not compel the defendant to reimburse the plaintiff for expenses previously incurred in support of the child.

On appeal, the defendant claims that the trial court erred in construing General Statutes § 46b-46 to afford the court statutory authorization to exercise personal jurisdiction over him in 1981. He contends that, by virtue of the notice requirement of § 46b-46 (b), a court’s lack of personal jurisdiction at the time of the rendering of a decree of dissolution of marriage constitutes a noncurable deficiency that forever precludes personal jurisdiction to modify the decree to impose a support obligation. We disagree.

Our analysis of the defendant’s argument can usefully begin by clarifying what is not at issue in this case. The plaintiff does not claim that the defendant had notice of the divorce proceedings in 1971 or that, absent such notice, the court then had the authority to order the defendant to support his child. See Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972); Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173 (1960); Beardsley v. Beardsley, 144 Conn. 725, 726, 137 A.2d 752 (1957). The defendant does not challenge the validity of the divorce decree itself. See LaBow v. LaBow, 171 Conn. 433, 439, 370 A.2d 990 (1976); Mazzei v. Cantales, 142 Conn. 173, 176, 112 A.2d 205 (1955). In contesting the court’s jurisdiction to order him now to make child support payments, the defendant relies solely on the terms of § 46b-46 (b), whose constitutionality he does not challenge. With respect to § 46b-46 (b), finally, the defendant concedes that the plaintiff has satisfied the statute’s requirements concerning residency and domicile, and that he received actual notice of the pending modification.

What is at issue is the construction to be afforded to § 46b-46 (b) which allows a court, in matrimonial matters, to “exercise personal jurisdiction over the nonresident party as [to] matters concerning . . . support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section.” (Emphasis added.) Subsection (a) confers jurisdiction upon a court to deal with complaints for dissolution, annulment or legal separation when the defendant is a nonresident or his whereabouts are unknown. Subsection (a) describes the procedures that are to be followed to give such a nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint either if the nonresident party has received such notice or if a reasonable effort to afford him notice has been made. The defendant maintains that the reference in subsection (b) to “actual notice under subsection (a)” necessarily means notice within the time frame of subsection (a), so that the statute authorizes support orders only in conjunction with dissolution orders that follow upon a court’s determination that a nonresident defendant has received actual notice. Although this is one possible construction of the reference to subsection (a), we are not persuaded that it is the correct one.

Although we have not previously had the occasion to examine § 46b-46 (b) (1), we must take as our point of departure the well established principle that stautes providing for parental support and maintenance of minor children are to be broadly construed. See Guille v. Guille, 196 Conn. 260, 266, 492 A.2d 175 (1985); Faraday v. Dube, 175 Conn. 438, 443, 399 A.2d 1262 (1978). The legislature has conferred upon courts the power to provide for the support of children, not only when a decree of dissolution is entered, but at any time. See General Statutes §§ 46b-56, 46b-84 and 46b-86; see Van Patten v. Van Patten, 176 Conn. 29, 404 A.2 879 (1978); Yates v. Yates, 155 Conn. 544, 235 A.2d 656 (1967); Krasnow v. Krasnow, 140 Conn. 254, 99 A.2d 104 (1953); Bailey v. Mars, 138 Conn. 593, 600, 87 A.2d 388 (1952); Lilley v. Lilley, 125 Conn. 339, 343, 5 A.2d 849 (1939); Kelsey v. Green, 69 Conn. 291, 298, 37 A. 679 (1897). This court has only recently held that § 46b-86 (a), which permits a divorce decree to contain a nonmodification clause, was not intended to change the common law rule that precluded divorcing parents from enforcing contractual limits upon their children’s ongoing right to parental support. Guille v. Guille, supra, 266-67. In light of this history of statutory construction, it is appropriate for us to assume that, in enacting a long-arm statute with respect to family matters, the legislature intended to exercise its full constitutional power, limited only by the constraints of due process, over nonresidents being sued for nonsupport of their children. See Frazer v. McGowan, 198 Conn. 243, 249, 502 A.2d 905 (1986); Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983); see also World Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 92, 97-98, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977); Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945).

From this perspective, we conclude that the defendant has read § 46b-46 (b)’s reference to “actual notice under subsection (a)” too narrowly. That requirement does not necessarily imply a linkage between the timing of a dissolution decree and an order for child support. It is more likely that the legislature intended by the reference to interpolate into subsection (b) the procedural rules for notification that are contained in subsection (a). Needing to provide instructions for the manner in which notice should be given to a nonresident defendant against whom a nonsupport claim is pending, the legislature intended to incorporate by reference the applicable rules already set out in subsection (a) for complaints for dissolution, annulment or legal separation. Such a construction finds support in the legislative history of § 46b-46 (b), which was enacted in order to “benefit] spouses and children . . . who are residents of Connecticut.” 18 S. Proc., Pt. 3, 1975 Sess., p. 1477 (remarks of Senator David H. Neiditz). The defendant’s proposed construction, which would reward a nonresident defendant for having successfully eluded a process server at the time of a dissolution action, would frustrate this legislative purpose.

While it is true that the legislature has enacted a number of statutes designed to provide access to support for Connecticut children, the existence of theoretically available alternate remedies for the plaintiff is no reason to construe § 46b-46 (b) narrowly. In light of the past history of the relationship between the parties, it is fanciful to suggest that the plaintiff can rely on General Statutes § 46b-61 or 46b-84, which depend upon finding the defendant in this state. Recourse to the Uniform Reciprocal Enforcement of Support Act; General Statutes § 46b-180 et seq.; would impose upon the plaintiff the burden of pursuing the defendant in Oregon. In any event, that act specifically states that “[t]he remedies [therein] provided are in addition to and not in substitution for any other remedies.” General Statutes § 46b-181. None of these statutes in any way evidences a legislative intention to foreclose modification of a divorce decree once personal jurisdiction has been obtained over a nonresident parent.

In holding that § 46b-46 (b) permits the court to modify a dissolution judgment to require a nonresident defendant to pay child support if the nonresident had actual notice of the modification proceedings, we reach a result that is consistent with that reached by courts that have faced similar questions in other jurisdictions. See Gill v. Gill, 56 Ill. 2d 139, 306 N.E.2d 281 (1974); Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659 (1925); Effland v. Effland, 171 Kan. 657, 237 P.2d 380 (1951); Kaestner v. Kaestner, 228 Mo. App. 1043, 58 S.W.2d 494 (1933); Lam v. Lam, 86 Nev. 908, 478 P.2d 146 (1970); see also Wiles v. Wiles, 211 Or. 163, 315 P.2d 131 (1957); but see Hutton v. Dodge, 58 Utah 228, 231, 198 P. 165 (1921). The defendant has cited no recent case to the contrary, and we have discovered none. The trial court’s order of modification in this case was authorized by our statute.

There is no error.

In this opinion the other judges concurred.

       The court attempted to inform the defendant of the pendency of the action by publishing notification in The Hartford, Times for two successive weeks.

       “[General Statutes (1958 Rev.)] Sec. 46-17. order of notice, when complaint may be continued. On a complaint for divorce when the adverse party resides out of or is absent from the state or the whereabouts of the adverse party is unknown to the plaintiff, any judge or clerk of the supreme court of errors or of the superior court or any county commissioner may make such order of notice as he deems reasonable. Such notice having been given and proved to the court, such court may hear such complaint if it finds that the defendant has actually received notice that the complaint is pending, and, if it does not appear that the defendant has had such notice, the court may hear such case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.”
      This statute was the predecessor of General Statutes § 46b-46 (a).

       “[General Statutes] § 46b-46. . . . NOTICE TO NONRESIDENT PARTY. JURISDICTION OVER NONRESIDENT FOR ALIMONY AND SUPPORT, (a) On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.
      “(b) The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”

       During Senate proceedings in 1975 that led to the enactment of § 46b-46 (b), Senator David H. Neiditz indicated that the bill was patterned after a similar Illinois statute then in force. 18 S. Proc., Pt. 3,1975 Sess., p. 1477. That statute provided that: “Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just . . . .” 111. Rev. Stat., c. 40, § 19 (1975); see Gill v. Gill, 56 Ill. 2d 139, 306 N.E.2d 281 (1973) (court that lacked personal jurisdiction over defendant when it granted divorce decree validly ordered defendant to pay child support when it subsequently gained personal jurisdiction over him).


author: Shea, J.

text:
    The Metropolitan District v. Town of Barkhamsted
    (12670)
    Peters, C. J., Healey, Shea, Santaniello, and Callahan, Js.

      Argued January 9
    decision released April 1, 1986

      Wesley W. Horton, with whom were David L. Fineberg and David B. Losee, for the appellant (defendant).

      BourJce G. Spellacy, with whom were Karen P. Blado, Michael J. Whelton and, on the brief, Katherine C. Callahan, for the appellee (plaintiff).

      Charles Bauer and Ernest A. Inglis, Jr., filed a brief as amici curiae.
   Shea, J.

The principal issue on this appeal after certification from a decision of the Appellate Court is the determination of the proper basis for the valuation of water supply land owned by the plaintiff, the Metropolitan District (hereinafter the district), and located in the town of Barkhamsted (hereinafter the town), for the purpose of the tax assessment lists of 1979, 1980 and 1981. We granted certification to review the judgment of the Appellate Court setting aside the judgment of the Superior Court, which had reduced the town’s assessment of the district’s property situated within the town from $8,922,660 to $8,351,280 for each list. We affirm the judgment of the Appellate Court.

The decision of the Appellate Court fully describes the underlying facts, which are not in dispute. Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 485 A.2d 1311 (1984). In 1979, the town assessed 6628 acres of water supply land owned by the district, a specially chartered municipal corporation, at $1900 per acre. The district appealed to the town’s board of tax review. The board refused to modify the assessment and the plaintiff appealed to the Superior Court. See General Statutes § 12-119. The appeal was heard by a state trial referee, exercising the powers of the Superior Court, who concluded that the value of the property was $1800 per acre. The town consented to the reduction of its $1900 per acre figure to the court’s valuation. The district appealed to the Appellate Court, claiming error in the referee’s application of the property tax assessment provision contained in its charter.

The district was created in 1929 by a special act of the General Assembly. 20 Spec. Acts 1204, No. 511. The act, as amended, is commonly referred to as the Charter of the Metropolitan District (hereinafter the charter). The charter provides that water supply land situated in nonuser towns be “assessed for taxation at the average assessed valuation per acre of the improved farming land in such town.” See part I of this opinion, infra.

The Appellate Court enunciated a definition of “improved farmland” under the charter and concluded that the Superior Court’s failure to define that term invalidated its valuation because it had no proper standard by which to weigh the evidence of value presented at trial. The Appellate Court defined “improved farmland” as land that “has been altered, changed or developed from its natural state, in a not inconsequential manner, in order to enhance or promote its use as farmland.” Metropolitan District v. Barkhamsted, supra, 73. The court set aside the judgment of the Superior Court and ordered a new trial to determine the value of “improved farmland” in the town in accordance with this definition.

We granted certification to review the judgment of the Appellate Court in respect to two issues: “(1) the definition of ‘improved farmland’ under [General Statutes] § 12-76 and [the] related charter provision of the Metropolitan District, and (2) the claimed implied repeal of the charter provision by [General Statutes] § 12-76. ” In our review of these certified issues we focus on the judgment of the Appellate Court, not of the Superior Court. The only questions we need consider are those raised by the petition for certification, and we will ordinarily consider these issues in the manner in which they have been framed in the Appellate Court. See Practice Book § 3154; Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139 (1986); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

I

A brief statutory history of General Statutes § 12-76 and the district’s charter is essential to our review of the Appellate Court’s decision. In West Hartford v. Board of Water Commissioners, 44 Conn. 360 (1877), we held that a reservoir owned by a municipal corporation in another town was not subject to taxation in the town where the reservoir is situated. The General Assembly’s dissatisfaction with the result of this case prompted adoption of the original version of General Statutes § 12-76, which provided: “Land owned or taken by any municipal corporation, for the purpose of creating or furnishing a supply of water for its use or benefit, shall be liable to taxation, and shall be set in the list in the town where such land is situated, to the corporation owning or controlling such water supply, at a valuation which would be fair for said land if used for agricultural purposes: provided, however, that no such land shall be liable to taxation, or set in any list as aforesaid, wherever the inhabitants of the town in which the said land is situated have the right to the use of such water supply upon the same terms and conditions as the inhabitants of such municipal corporation, and when such town actually uses the same.” (Emphasis added.) Public Acts 1879, c. 79. Subsequently, in 1913, the legislature deleted the language “at a valuation which would be fair for said land if used for agricultural purposes” and substituted “at the average assessed valuation per acre of the improved farming land in said town. ” (Emphasis added.) Public Acts 1913, c. 156.

In 1929, the Metropolitan District was created by a special act of the General Assembly. 20 Spec. Acts 1204, No. 511. Initially, the act contained no provision establishing a tax valuation standard for its water supply property. The act was, however, subsequently amended by borrowing language virtually identical to the 1913 amendment to § 12-76, that “all land taken for any of said purposes shall be set in the list for taxation in the town in which said land is situated, to The Metropolitan District, and assessed for taxation at the average assessed valuation per acre of the improved farming land in such town.” (Emphasis added.) 21 Spec. Acts 655, No. 505, § 14; 25 Spec. Acts 1162, No. 444, § 10.

In 1963, the pertinent portion of the present General Statutes § 12-76 was amended to provide: “[S]uch land shall be liable to taxation and shall be assessed in the town in which such land is situated to the corporation owning or controlling such water supply at what would be its fair market value were it improved farm land.” (Emphasis added.) Public Acts 1963, No. 490, S 10.

II

We agree with the Appellate Court that the trial court did not define the phrase “improved farmland.” This omission, as the Appellate Court concluded, rendered its determination of the value of the district’s property invalid because the court did not utilize a proper standard in evaluating the evidence of value presented at trial. “[T]he fundamental issue in the case was never considered.” Metropolitan District v. Barkhamsted, supra, 68.

Each witness at trial employed a different definition of “improved farmland.” The town assessor, Mary Ringuette, defined it as land “able to have a tractor go through and plant crops.” The town’s expert appraiser, James C. Oles, defined “improved farmland” as “prime crop land cleared, the absolute best farmland there is.” The district’s project manager, Leon C. Kirk, did not explicitly define the term but did opine that any available farmland in the town would fall within the purview of “improved farmland.” It is apparent that the trial court simply adopted the testimony of Oles, which was based upon sales of improved farmland, “the absolute best farmland there is” under his definition, in other towns in Litchfield county.

In order to fulfill the statutory mandate of assessing the district’s property at the average assessed valuation of the improved farmland in the town, it is essential, as the Appellate Court concluded, to define the term “improved farmland” so that whatever land in the town satisfies that definition can be identified and its “average assessed valuation” ascertained. The Appellate Court found that none of the valuation standards used at the trial complied with the charter criterion for assessing the district’s land. The pertinent provision of the charter provides that the district’s property shall be assessed “at the average assessed valuation ... of the improved farming land in such town.” “ ‘[T]he word “shall” must be assumed to have been used with full awareness of its ordinary meaning.’ Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980). ‘Shall’ is a word ordinarily creating a mandatory duty. Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967).” Metropolitan District v. Barkhamsted, supra, 69-70. The Appellate Court noted that the charter is devoid of any specific definition of “improved farmland,” “improved” or “farmland.” Id., 71. “ ‘Where a statute or regulation does not define a term, it is appropriate to focus upon its common understanding as expressed in the law and upon its dictionary meaning. The Hearst Corporation v. State Department of Assessments & Taxation, 269 Md. 625, 308 A.2d 679 (1973).’ Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979).” Metropolitan District v. Barkhamsted, supra, 72; see Doe v. Manson, 183 Conn. 183, 186-87, 438 A.2d 859 (1981).

The Appellate Court looked to General Statutes § 1-1 (q) for the definition of the term “farming.” Activities included within this statutory definition of farming are cultivation of the soil, dairying, forestry and raising any agricultural or horticultural commodity. Evidently, “ ‘farmland’ includes land used for a broad range of purposes . . . .” Metropolitan District v. Barkhamsted, supra, 71 n.10. The Appellate Court aptly reasoned that land used to conduct any of these “farming” activities delineated in § 1-1 (q) is “farmland.” See Johnson v. Board of Tax Review, 160 Conn. 71, 273 A.2d 706 (1970).

The Appellate Court then considered dictionary definitions and common usage in order to define the word “improve”: “ ‘[T]o increase the value of (land or property) by bringing under cultivation, reclaiming for agriculture or stock raising, erecting buildings or other structures, laying out streets, or installing utilities as sewers (improved farmland).’ (Emphasis in original.) The same dictionary defines ‘reclaim’ in part as follows: ‘[T]o rescue from a wild or uncultivated state: make fit for cultivation or use.’ ” Metropolitan District v. Barkhamsted, supra, 72, quoting Webster, Third New International Dictionary; see Builders Land Co. v. Martens, 255 Iowa 231, 233-34, 122 N.W.2d 189 (1963); State v. Babcock, 186 Minn. 132, 135, 242 N.W. 474 (1932).

Because the charter uses a technical term, “improved farmland,” clearly associated with the farm industry, that term “should be accorded the meaning which [it] would convey to an informed person in the . . . trade or business.” Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 475, 217 A.2d 698 (1966); Manchester v. Manchester Police Union, 3 Conn App. 1, 9, 484 A.2d 455 (1984). Therefore, in an effort to define the word “improved” the Appellate Court also relied on an assessor’s reference manual definition of “improvement”: “ ‘[a]nything done to raw land with the intention of increasing its value. Thus, a structure erected on the property constitutes one very common type of improvement, although other actions, such as those taken to improve drainage, are also improvements. . . .’International Association of Assessing Officers, Improving Real Property Assessment, A Reference Manual, p. 425.” Metropolitan District v. Barkhamsted, supra, 72-73.

Applying the dictionary definitions and common parlance of “improve” to the definition of “farming” as contained in General Statutes § 1-1 (q), we agree with the Appellate Court that the term “improved farmland” in the district’s charter refers to land that has been altered or developed from its natural state in order to enhance or promote its use for farming. See Lentz v. Dostal, 212 Wis. 81, 85, 249 N.W. 174 (1933) (parcel of land was “improved farm property” within statute where pasture was under plow, and remaining woodland cleared of brush). While this definition is clearly a matter of law, the application of this standard to a particular parcel of land is a question of fact for the trial court. The trial court must consider, by reference to the definition enunciated by the Appellate Court, whether sufficient improvements have been made to particular land to justify its classification as “improved farmland.”

The town argues that its appraiser’s standard of “prime crop land cleared” is the most appropriate definition because that will result in tax revenue at a rate commensurate with the highest quality farmland. We recognize that the purpose of the taxing provisions of the charter is to ensure that towns not sharing in the use of water supply property do not lose the tax revenue from the land taken for the reservoirs. See Meriden v. Board of Tax Review, 161 Conn. 396, 403, 288 A.2d 435 (1971); Norwalk v. New Canaan, 85 Conn. 119, 81 A. 1027 (1911). We point out that the Appellate Court’s definition would encompass “prime crop land cleared,” as such land is certainly improved by virtue of being cleared, but is not restricted to such land. In view of the broader definition of “farming” in § 1-1 (q), we do not believe that the legislature intended to limit the definition of “improved farmland” solely to land specially suited to cultivation. The objective of preserving the tax base of a town when its land is taken for the purpose of supplying water to other municipalities does not require that the town be compensated far in excess of the lost revenue by valuing each acre of the water supply property, regardless of its potential as quality farmland, at a figure applicable only to the most desirable parcels of farmland in the town. The charter provision refers to the “average assessed valuation . . . of the improved farming land,” indicating a realization on the part of the legislature that “improved farming land” in the town would not be of uniform value for farming. The implicit assumption in this formula was that each acre of water supply land had a potential for improvement as farmland that would never be achieved because the land had been taken for the purpose of a water supply, thus depriving the town of tax revenue it would ordinarily have realized. This assumption would have been wholly unrealistic if it were based on the notion that each acre of water supply land had a potential for improvement as “prime crop land cleared, the best farmland there is.” A tax formula so wholly divorced from reality would have imposed an unfair tax burden on the customer towns served by the district, going far beyond the legitimate purpose of compensating the town for revenue it would normally have received. The Appellate Court’s definition of “improved farmland” is consistent with the legislative policy of fair compensation to nonuser municipalities and effectively balances the competing interests of the taxing town and the district’s customers.

Ill

The town also claims that the provisions of General Statutes § 12-76, rather than those of the charter, apply to the district’s water supply property. The essential difference in the two provisions is that the charter specifically requires that water supply land be valued in comparison to that of other improved farmland located in the same town, while the valuation procedure under the terms of § 12-76 is not so limited. The relevant charter provision provides that water supply land shall be assessed “at the average assessed valuation ... of the improved farming land in such town.” (Emphasis added.) In 1963, the relevant portion of § 12-76 was changed to provide that water supply property of a municipal corporation located in another municipality whose inhabitants do not have the right to use the water, is “assessed . . . at what would be its fair market value were it improved farm land.” Public Acts 1963, No. 490, § 10. The town claims that this amendment repealed the tax assessment provision of the district’s charter by implication. As did the Appellate Court, we disagree.

We have consistently expressed our disfavor of repeals by implication. Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521, 468 A.2d 574 (1983); Powers v. Ulichny, 185 Conn. 145, 153, 440 A.2d 885 (1981); Hirschfeld v. Commission on Claims, 172 Conn 603, 606, 376 A.2d 71 (1977); Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 591, 227 A.2d 413 (1967). Nevertheless, it is a well established principle of statutory construction that subsequent enactments of the legislature are presumed to repeal earlier inconsistent ones to the extent that they are in conflict. Southern Connecticut Gas Co. v. Housing Authority, supra; Beccia v. Waterbary, 185 Conn. 445, 458, 441 A.2d 131 (1981); C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980). “A special and local statute, providing for a particular case or class of cases, is not affected by a statute general in its terms, broad enough to include cases embraced in the special law, unless the intent to repeal or alter is manifest.” State ex rel. Wallen v. Hatch, 82 Conn. 122, 124, 72 A. 575 (1909); Miller v. Eighth Utilities District, 179 Conn. 589, 593, 427 A.2d 425 (1980); Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 454-55, 280 A.2d 344 (1971). “ ‘There is no rule which prohibits the repeal by implication of a special or specific act by a general or broad one. The question is always one of legislative intention, and the special or specific act must yield to the later general or broad act, where there is a manifest legislative intent that the general act shall be of universal application notwithstanding the prior special or specific act.’ 50 Am. Jur. 565, Statutes, § 544.” East Haven v. New Haven, 159 Conn. 453, 468, 271 A.2d 110 (1970).

The town argues that unless the charter is construed to permit the assessor to consider the value of property in other towns, the charter and § 12-76 are incompatible because the charter does not provide for the case in which there is no “improved farmland” in a town in which property of the district is situated. Therefore, the gravamen of the town’s claim of repeal by implication is the assertion that § 12-76 provides for a situation not contemplated by the charter. We refuse to equate this potential, unprovided-for situation with a “manifest intent to repeal or alter” the charter on the part of the legislature in enacting the 1963 amendment to § 12-76. In all instances except where no qualifying farmland exists within a town, the charter can operate in an arena independent from § 12-76.

“ ‘If courts can by any fair interpretation find a reasonable field of operation for both statutes without destroying or perverting their evident meaning and intent, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect. [Citations omitted.]’ Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536 (1957).” Metropolitan District v. Barkhamsted, supra, 63-64. The Appellate Court concluded that “[r]ather than an essential repugnancy, the two methods of assessment can live together compatibly as two different but related methods of achieving the same objective.” Id., 64. The charter has independent application with respect to the water supply land of the district, while General Statutes § 12-76 is applicable to any other municipal water company or municipality owning water supply land. Id., 64; see Baker v. Baningoso, 134 Conn. 382, 385, 58 A.2d 5 (1948); Lamberti v. Stamford, 131 Conn. 396, 401, 40 A.2d 190 (1944).

We agree with the Appellate Court that there is “nothing in the legislative history of the charter and General Statutes § 12-76 to display a manifest intent that the charter provision is repealed by the later general statute.” Metropolitan District v. Barkhamsted, supra, 64. Because the charter and General Statutes § 12-76 can logically be given concurrent application, the charter provision was not repealed by implication in the adoption of the 1963 amendment to General Statutes § 12-76. Under the charter, the assessment standard is not the fair market value of the district’s land as “improved farmland” based upon the value of land outside Barkhamsted but the actual average assessment used for improved farmland in the town. In light of our conclusions, we agree with the Appellate Court that this case must be remanded for a determination of the average assessed valuation of the “improved farmland” located within the town of Barkhamsted in order to compute properly the district’s tax liability.

The judgment of the Appellate Court is affirmed.

In this opinion the other judges concurred.

       While the charter used the term “farming land,” General Statutes § 12-76 uses the term “farm land.” We agree with the Appellate Court that these two terms are synonymous. Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 56 n.6, 485 A.2d 1311 (1984). In this opinion we adopt the use of “farmland,” in order to comport with the opinion of the Appellate Court.

       The Appellate Court found in favor of the town that the provisions of General Statutes §§ 12-107a through 12-107e are inapplicable to the assessment of the district’s land. Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 65-68, 485 A.2d 1311 (1984). Essentially, these statutes enable owners of “farm land” to be free from the pressure to sell their property caused by high tax rates based on increasing market value created by the advent of residential and commercial development. Id. Under this scheme, qualifying “farm land” is valued based on its current use, without regard to any potential use of the property. Meriden v. Board of Tax Review, 161 Conn. 396, 403, 288 A.2d 435 (1971). This issue is not before us because the district did not file with this court a cross petition for certification under Practice Book § 3141. State v. Torrence, 196 Conn. 430, 434 n.6,493 A.2d 865 (1985).

       In 1982, the General Assembly extended the language of General Statutes § 12-76 to include land owned by municipal water districts created by special act. Public Acts 1982, No. 82-452, § 1. General Statutes § 12-76 now provides in relevant part: “Land owned or taken by any municipal corporation, including any metropolitan district established under provisions of the general statutes or any special act . . . shall be assessed . . . at what would be its fair market value were it improved farm land, notwithstanding the provisions of . . . any special act.”

       The town also claims that the Appellate Court’s definition of “improved farmland” is contrary to our decision in Norwalk v. New Canaan, 85 Conn. 119, 125-27, 81 A. 1027 (1911). In Norwalk, this court concluded that certain items comprising components of a municipal water supply corporation (i.e., dam, underground pipes, etc.) were not taxable under General Statutes § 12-76 because they did not constitute “[l]and owned or taken ... for the purpose of creating or furnishing a supply of water.” Nor-walk, however, is inapplicable to the present case because it involves the definition of “water supply land” under § 12-76 and not that of “improved farmland” under the district’s charter.