author: Shea, J.

text:
    State of Connecticut v. Milton Green
    (12562)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued February 10
    decision released April 5, 1988

      Ernest F. Teitell, with whom were David Golub and, on the brief, Leora Hermann and Robert N. Chatigny, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attoney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict and Richard F. Jacobson, assistant state’s attorneys, for the appellee (state).
   Shea, J.

The defendant was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c. In his appeal from the judgment he claims that the trial court erred: (1) in denying his motion to suppress the oral statements he made on April 14, 1983, to the Bridgeport police; and (2) in failing to instruct the jury that attempted robbery was a lesser included offense of felony murder. We conclude that the trial court erred both in admitting the oral statements of the defendant made on April 14,1983, to the Bridgeport police, and in failing to instruct the jury that attempted robbery, in the circumstances of this case, was a lesser included offense of felony murder. We find error and remand the case to the trial court for a new trial.

From the evidence at trial the jury could reasonably have found the following facts. The defendant, Milton Green, approached Charles Belcher and Jeffrey Tate on the evening of April 9,1983, and asked them if they wanted to make some money. Tate testified that he had inferred from the defendant’s conversation at that time that the defendant wanted the three to commit a robbery. The three walked to Reservoir Avenue in Bridgeport. There they saw Dean Brush, who had just delivered a pizza. Tate asked Brush for a ride. After Brush agreed, the defendant, Tate, and Belcher entered Brush’s automobile. The defendant handed a gun to Tate, who put the weapon to Brush’s head. Brush stopped his car, and grabbed the gun away from Tate. The defendant and Brush then struggled for control of the gun; during this struggle inside the car one shot went off, which struck Brush. Both continued struggling, and eventually their fight moved from inside the car to the ground outside of the car. Finally, Belcher hit Brush in the face, and the defendant grabbed the gun. The defendant moved back four to five feet, and shot Brush three times. The defendant, Tate and Belcher then ran from the scene. A Bridgeport police officer, William Heckley, discovered the deceased victim. Harold Carver, a forensic pathologist, performed an autopsy and at the trial testified that Brush had died as a result of four bullet wounds.

I

The defendant claims he was denied his right to due process, and his privilege against self-incrimination, in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, because the court, McKeever, J., denied his motion to suppress two oral statements he had made on April 14, 1983, to the Bridgeport police despite the failure of the police to advise the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). This ruling was adopted by the trial court, Callahan, J., as the law of the case. See State v. Hoffler, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978); State v. Mariano, 152 Conn. 85, 91, 203 A2d 205, cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1964). In view of our conclusion,that both of these statements were inadmissible under the federal constitutional principles established in Miranda, we need not consider the defendant’s state constitutional arguments, nor his claim that the state failed to satisfy its federal and state constitutional burden of proving that these two oral statements were voluntarily made. We will consider separately the admissibility of the two oral statements, and then will examine whether their erroneous admission was harmful.

A

On April 11, 1983, Detective Leo Krusinski of the Bridgeport police department received an anonymous phone call from a person who claimed that the defendant was involved in or had knowledge about the murder of Brush. Krusinski and Detective Michael DeCarlo spoke with the defendant the following day. The defendant told Krusinski and DeCarlo that he had been in the area of Reservoir Avenue shortly before the homicide took place and had seen people talking to Brush. The defendant agreed to go to the police station the next day, and to give a statement to the police. On April 13, the defendant failed to appear at the police station. Krusinski called the defendant, who informed the detective that he did not have a ride. Krusinski and DeCarlo offered him a ride and the defendant accepted. The defendant spent three and one-half hours at the police station, and gave a statement implicating Kyle Freeman in the murder of Brush. The defendant then left the police station, but later returned at the request of the police to identify Freeman. Krusinski and DeCarlo checked out an alibi provided by Freeman, and became convinced that he had no part in the murder of Brush. The defendant then gave a second statement on April 13,1983, to Krusinski. The defendant stated that he was present during the murder of Brush, but that he had nothing to do with its commission. He implicated Tate and Belcher in the murder of Brush.

The police did not give Miranda warnings to the defendant when he made these two statements on April 13, 1983. Krusinski and DeCarlo both testified that they did not consider the defendant to be a suspect at that time. The police allowed the defendant to leave the police station after he had made his second statement on April 13, 1983, and they told him that he was not under arrest. The defendant concedes that he was not in custody on April 13, 1983, that the police were not obligated to give him Miranda warnings on that day, and that the two statements he made on that day were properly admitted at his trial.

The defendant contends, however, that the oral statements he made to the police on April 14, 1983, were obtained in violation of Miranda. The police arrested both Tate and Belcher between 12:30 p.m. and 1 p.m. on April 14,1983. Both told the police that the defendant had been a participant in the robbery, and had been the person who had shot and killed Brush. The police informed George Ganim, the defendant’s attorney, that they wished to ask the defendant further questions in connection with the murder of Brush. The defendant and his father arrived at the police station at approximately 2 p.m. that same day. The defendant’s father told Krusinski and Inspector Anthony Fabrizi that the defendant had not told the police the complete truth the night before, and that the defendant knew more about the murder of Brush. At this time, the defendant, his father, Krusinski and Fabrizi were standing in a hallway.

The defendant was then taken into a line-up room by Krusinski and Fabrizi while his father remained outside in the hallway. The defendant maintains that these two police officers deliberately separated him from his father to help them elicit incriminating statements from him. Fabrizi admitted during cross-examination by the defendant’s counsel, “I asked [the defendant’s father] to stay outside [of the line-up room].” The defendant’s counsel asked Fabrizi, “Why didn’t you invite the father in?” Fabrizi answered, “We find in investigations that the presence of a parent sometimes can impede an admission against interest by a family member. Interviews are conducted alone, not with family members present.” The defendant’s counsel then asked, “So, you intentionally kept the father out; isn’t that correct?” Fabrizi responded, “Yes, if you want to characterize it as intentionally, yes.”

The defendant argues that he was in custody as soon as the police deliberately separated him from his father, and that the police were obligated to provide him with Miranda warnings at that time. We conclude that the defendant was in custody when he was separated from his father, and led into the line-up room. “Two conditions must exist before a criminal suspect is entitled to Miranda warnings: (1) the defendant must be in the custody of law enforcement officials; and (2) the defendant must be subjected to interrogation.” State v. Burak, 201 Conn. 517, 531, 518 A.2d 639 (1986). A person is in custody only if a reasonable person would have believed he was not free to leave. State v. Hoeplinger, 206 Conn. 278, 286-87, 537 A.2d 1010 (1988). “We must look at the totality of the circumstances of the questioning in order to determine whether a ‘reasonable person’ would have construed those circumstances as placing him in a custody situation.” Id., 287. On April 14, 1983, the defendant was sixteen years old, and had never been convicted of a crime. The police never told the defendant on April 14, 1983, that he was free to leave. The state maintains that the defendant knew that he was free to leave at any time after Krusinski and Fabrizi brought him into the line-up room because the police had allowed him to leave the police station the previous day on two occasions. We might agree with the state’s argument in this regard if the defendant had been an adult, or if he had greater experience with the criminal justice system. In light of both the defendant’s youth and his inexperience with the police, we hold that the defendant was in custody based on the totality of the circumstances despite the fact that the police never told the defendant that he was under arrest.

The state maintains that, even if the defendant was in custody after he was separated from his father and brought into the line-up room, the police were not required to give him Miranda warnings at that time because the defendant was not subjected to an “interrogation.” State v. Burak, supra. “[Sjince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Emphasis omitted.) Rhode Island v. Innis, 446 U.S. 291, 301-302, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). It is undisputed that before the defendant made any statements to the police on April 14, 1983, Tate and Belcher had told Fabrizi of the defendant’s participation in the crime and that Fabrizi separated him from his father to elicit “admissions against interest” from him. The defendant did not begin to make incriminating statements on that date until after Fabrizi told him, “I’m aware that you have given a statement yesterday; however, is there something else you want to tell us about this thing because it doesn’t fit with, what we know.” The defendant continued to deny that he had participated in the crime, but for the first time admitted that he had returned to the scene after the shooting had started to prevent Tate from shooting Brush again. The defendant denied firing any shots, but stated that the gun had gone off during a struggle with Tate over the gun, with a bullet striking Brush in the thigh. He denied having any intent to kill Brush. Fabrizi’s comments were reasonably likely to elicit an incriminating response, and, therefore, we conclude that the police subjected the defendant to a custodial interrogation. We hold that the court, McKeever, J., erred in refusing to suppress the first oral statement made by the defendant on April 14, 1983, to the police.

B

After the first interrogation on April 14, 1983, the police called the defendant’s father and mother into the interrogation room. The police had not yet advised the defendant of his Miranda rights. The defendant repeated the explanation he had given during the first interrogation earlier that day, but revealed in addition that he had injured his leg during a struggle with Brush.

The state’s brief fails to address the defendant’s contention that his second oral statement to the police on April 14, 1983, was obtained in violation of Miranda v. Arizona, supra. The defendant argues that it was clear once he had admitted that he was present after the shooting began and had “accidently” shot Brush during his alleged struggle with Tate, that the police would not have let him leave the station. The state has not challenged the validity of this assertion. We conclude that the defendant was clearly in custody after he made his first oral statement. There is no question but that the second statement was affirmatively elicited by Fabrizi, who asked the defendant “to repeat what he had said in front of his father and mother.” We conclude that the defendant’s second statement on April 14, 1983, was obtained through custodial interrogation and, therefore, that the police should have informed him of his Miranda rights before he made that second statement. We hold that the court, McKeever, J., erred in failing to suppress the second oral statement made by the defendant on April 14, 1983.

C

When an error is of constitutional significance the state has the burden of showing that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24-26, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). The state has not contended in its brief or at argument that, if this court should conclude that the two oral statements made by the defendant April 14, 1983, were erroneously admitted, the error, nevertheless, was harmless beyond a reasonable doubt. Since the defendant at trial testified in accordance with his April 13,1983 statement that although he was present during the crime, he was not involved in its commission, his improperly admitted April 14,1983 statements that implicated him in the robbery as well as the shooting cannot be regarded as harmless under the constitutional standard. Accordingly, we must conclude that the state has failed to meet its burden in this regard. We hold, therefore, that the erroneous admission of the two oral statements made on April 14, 1983, constituted harmful error.

II

The final claim of the defendant is that the trial court, Callahan, J., erred in refusing to instruct the jury on the lesser included offense of attempted robbery under General Statutes § 53a-49. This issue is likely to arise during a retrial of the defendant on the charges in the case at bar, and, therefore, we shall review this claim.

The defendant argues that the evidence at the trial would have entitled the jury to believe that he had agreed to participate in a robbery of Brush and had committed a substantial step in furtherance of the crime by entering Brush’s automobile, but then terminated his involvement in the planned crime. The defendant testified that while he was in Brush’s car he told Tate not to do anything to Brush. The defendant argues that if the jury believed that he had changed his mind about committing the robbery of Brush, it could have found him guilty of attempted robbery, but not guilty of felony murder because it would have found that Brush’s death did not occur in the course or in the furtherance of a crime in which the defendant was still participating. See State v. Feltovic, 110 Conn. 303, 309-11, 147 A. 801 (1929); People v. Marwig, 227 N.Y. 382, 387, 125 N.E. 535 (1919).

At a charge conference prior to the conclusion of the trial, the defendant requested that the trial court instruct the jury on the lesser included offense of attempted robbery. After hearing argument on the request, the trial court refused to give any such instruction, and subsequently rejected the defendant’s written request to charge on attempted robbery.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we held: “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” The state does not dispute that the defendant satisfied the second and third conditions of the Whistnant test. The second condition was satisfied because one could not commit felony murder in the manner charged in this grand jury indictment without first committing the lesser included offense of attempted robbery. The third condition was met because the jury could have found that the defendant entered Brush’s car for the purpose of committing a robbery and, on that basis, could have convicted him of attempted robbery under § 53a-49.

The state argues that the defendant has failed to comply with the first condition of the Whistnant test. We have held that a proposed instruction is not “appropriate” under Whistnant unless it contains a complete statement of the essential facts and law justifying the charge in the form requested. State v. Ostroski, 201 Conn. 534, 557, 518 A.2d 915 (1986); State v. McIntosh, 199 Conn. 155, 160, 506 A.2d 104 (1986). We need not discuss the adequacy of the defendant’s request, however, because a revised request will undoubtedly be submitted at the new trial we have ordered.

The state also points out that the defendant in his request to charge specifically made a request that the trial court not charge on the affirmative defense to felony murder under § 53a-54c. The state maintains that a defendant is not entitled to an instruction on attempted robbery unless he also requests a charge on the affirmative defense to felony murder under § 53a-54c. The state relies in this regard on State v. Bond, 201 Conn. 34, 38, 513 A.2d 95 (1986): “A defendant accused of felony murder who does not claim the benefit of the statutory affirmative defense is generally not entitled to an instruction on the lesser offense which underlies the charge of felony murder. This is so because, assuming the element of causation is not in dispute, guilt of the lesser offense constitutes guilt of felony murder. State v. Morin, 180 Conn. 599, 604-10, 430 A.2d 1297 (1980). A defendant who claims the benefit of the affirmative defense, however, says, in effect, that ‘although I may have participated in the underlying crime, I did not cause the homicidal act or know that any of my fellow participants was armed with a deadly weapon.’ Should the jury find satisfied the four requirements of the affirmative defense, then they would be justified in finding the defendant not guilty of felony murder, but guilty of the underlying offense.” (Emphasis in original.)

The defendant argues that the rationale of Bond is inapplicable because he contends that he terminated his involvement in the attempted robbery before potential deadly force was used or threatened. See State v. Feltovic, supra; People v. Marwig, supra. We agree with the defendant’s argument that, if the jury believed that the defendant had committed a substantial step in furtherance of a planned robbery, such as enlisting Tate and Belcher for that purpose, but had immediately terminated his involvement in the attempt upon entering Brush’s automobile, then he would have no vicarious felony murder liability for Tate’s or Belcher’s subsequent homicidal acts. See State v. Feltovic, supra; People v. Marwig, supra. Thus, in such a state of facts, whether or not the defendant could satisfy the four requirements of the affirmative defense for felony murder under § 53a-54c, the state could not convict him of felony murder, because the murder would not have occurred during or in furtherance of his attempted robbery.

Lastly, the state argues that, since the defendant denied any involvement in the crime, he was not entitled to an instruction on the lesser included offense of attempted robbery because he did not satisfy the fourth condition of Whistnant. In State v. Manley, 195 Conn. 567, 579, 489 A.2d 1024 (1985), we concluded: “It is not at all improper that the defendant, requesting a lesser included offense instruction, bear an obligation, weak though it may be, to demonstrate that there is evidence ‘sufficiently in dispute’ to warrant giving the requested instruction. See Rouse v. United States, 402 A.2d 1218, 1221 (D.C. App. 1979); Day v. United States, 390 A.2d 957, 962 (D.C. App. 1978). The fourth condition of Whistnant specifically requires that the ‘proof’ be ‘sufficiently in dispute.’ Such proof is ‘sufficient’ when it is ‘marked by [a] quality [such as] to meet with the demands, wants or needs of a situation . . . .’ Webster, Third New Internatinal Dictionary. In the Whistnant context, therefore, the proof is ‘sufficiently in dispute’ where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal.”

The fact that a defendant denies having any involvement in a crime, however, does not necessarily preclude him from obtaining an instruction on a lesser included offense if there are facts in evidence that would reasonably support such an instruction. See State v. Burge, 195 Conn. 232, 235, 242-45, 487 A.2d 532 (1985) (lesser included offense instruction required despite defendant’s reliance on alibi defense); State v. Harris, 189 Conn. 268, 271-75, 455 A.2d 342 (1983) (same). The defendant testified that after he had entered Brush’s automobile he told Tate, “don’t do nothing crazy.” The defendant then testified, “[Tate] didn’t say nothing, so I figured it was, you know, all right.” This evidence was sufficient to support the defendant’s request for an instruction on the lesser included offense of attempted robbery. Accordingly, we hold that if the defendant produces similar testimony at the new trial and files a proper request, the jury should be instructed upon the lesser included offense of attempted robbery.

There is error, the judgment is set aside and the case is remanded to the trial court for a new trial.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assualt in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation AS defense, (a) 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.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a comlete and voluntary renunciation of his criminal purpose.”

       “The Grand Jurors within and for said Judicial District accuse MILTON GREEN of the City of Bridgeport in said Judicial District, of the crime of Felony Murder in that on the 9th day of April, 1983 at approximately 8:30 p.m. at 60 Pitt Street, Bridgeport, in said Judicial District, the said MILTON GREEN acting either alone or with one or more persons, did attempt to commit robbery, and in the course of and in furtherance of such crime or of flight therefrom, he or another participant did cause the death of DEAN BRUSH in violation of Section 53a-54c of the Connecticut General Statutes.”

       See footnote 1, supra.

       See footnote 1, supra.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Connecticut Bank and Trust Company, N.A. v. Victor Incendy et al.
    (13092)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.

      Argued December 2, 1987
    decision released April 5, 1988

      Ross G. Fingold, with whom, on the brief, were Leonard M. Bieringer and Edward C. Taiman, Jr., for the appellant (plaintiff).

      William F. Gallagher, with whom, on the brief, was Evelyn A. Barnum, for the appellees (named defendant et ah).
   Callahan, J.

The plaintiff, Connecticut Bank and Trust Company, N.A. (CBT), filed the instant appeal from a judgment of the trial court, Lewis, J., rendered in accordance with the findings and report of an attorney state trial referee, Isadore M. Mackler. The appeal was transferred from the Appellate Court to this court, pursuant to Practice Book § 4023. It presents two interrelated issues of first impression for this court. First, whether notice given by a creditor to a debtor of a public sale of repossessed collateral which complies with General Statutes § 42a-9-504 (3) is sufficient notice for a subsequent private sale of the same collateral after the public sale has proven unsuccessful. Second, if notice of the sale is not sufficient, what is the effect of such insufficiency on the right of a creditor to obtain a deficiency judgment.

The relevant facts are not in dispute. On June 5, 1974, Connecticut Electric Products, Inc. (CEP), a manufacturer of plastic injected molded products, executed a promissory note in the amount of $103,500, which was made payable to CBT. To secure the note, CEP gave the bank security interests in CEP’s inventory, accounts receivable, and machinery and equipment. As part of the financing arrangement, Victor Incendy and Jeanette Incendy, who were the officers and sole owners of the capital stock in CEP, personally executed a written guaranty to the bank guaranteeing payment of the note and all other moneys advanced to CEP by CBT. To secure the note and as part of their guaranty, the Incendys executed a mortgage deed to the bank on real estate they owned in Norwalk. The mortgage deed was recorded in the Norwalk land records on June 7, 1974.

On June 5, 1974, the same day CEP executed the promissory note, CBT entered into an agreement with Thomas Industries, Inc. (Thomas), a company experienced in liquidating heavy machinery and equipment. Thomas agreed that, in the event of a default by CEP, it would pay to CBT not less than $145,000, minus amounts due to prior lienholders, in return for the right to dispose of the collateral in accordance with the Uniform Commercial Code.

Soon thereafter, CEP defaulted on the note. In November, 1974, CBT took possession of the collateral by a peaceable entry onto CEP’s premises and contacted Thomas to effect its disposition. Thomas made arrangements for a public auction of the collateral to be held on January 25, 1975, on CEP’s premises and publicly advertised the auction in a trade publication and by circulating brochures within the trade. The Incendys were given proper notice of the public auction and, in fact, attended. All of CEP’s machinery and equipment were sold at the auction with the exception of one injection plastic molding machine and three horizontal molding presses. These four machines were withdrawn from the auction block allegedly because the bids received were insufficient to pay prior liens held by the Pennwait Corporation and ITT Industrial Credit, Inc. The total proceeds realized from the public auction were $46,585.

Sometime after January 25, 1975, Thomas shipped the four unsold machines on consignment to the Gavlick Machinery Corporation (Gavlick), a used machinery dealer located in Bristol, for resale. The first time CBT became aware of the transfer to Gavlick was on April 8, 1975, when it received an accounting from Thomas indicating that two of the four machines had been sold for a total of $41,500. 6CBT was informed that the remaining two machines had been sold for a total of $64,500 when it received a final report and accounting from Thomas in February, 1976. It is undisputed that the defendants did not receive any notice from CBT that the four machines had been sent to Gavlick for resale nor did they receive notice of a time after which the machines would be sold. The defendants did not know that a final disposition of the machinery had occurred until after CBT had initiated this lawsuit.

On December 18, 1979, CBT first made a written demand on the Incendys to pay the balance due and owing on the note which they had personally guaranteed. The defendants failed to honor the demand and CBT instituted this action on November 17, 1981, seeking to obtain a deficiency judgment against the Incendys and to foreclose its mortgage on their Nor-walk real estate. In response, the defendants asserted, inter alia, a two count special defense of equitable recoupment. Count one alleged that CBT had wrongfully misrepresented and concealed the actual date of the defendants’ default. Count two alleged that CBT had failed to comply with the Uniform Commercial Code in that it had failed to provide the defendants with reasonable notice of the sale of the machines, and to dispose of the collateral in a commercially reasonable manner. The defendants also filed a counterclaim that asserted the same allegations as count one of their equitable recoupment special defense.

The matter was tried before an attorney state trial referee. The referee’s report contained extensive and detailed findings of fact, which the parties do not dispute, and was accompanied by a nineteen page memorandum of decision. The referee recommended that judgment enter for CBT on the defendants’ counterclaim, and that judgment enter for the defendants on CBT’s complaint. With regard to CBT’s action, the referee found that it had failed to comply with the notice requirements of General Statutes § 42a-9-504 (3) regarding the private sale of the four machines remaining unsold after the public auction. The referee further found that the private sale had not been conducted in a commercially reasonable manner and the amount received at the sale was therefore presumed to equal the balance of the debt owed, thus denying CBT a deficiency judgment.

Thereafter, the trial court, Lewis, J., adopted the findings and recommendations of the trial referee and rendered judgment in accordance therewith. On appeal, CBT challenges the trial court’s rulings that the notice of the private sale was insufficient, and that the private sale was held in a commercially unreasonable manner. We find no error.

I

The first issue raised by CBT is whether the court erred in holding that the notice of the public sale was insufficient for purposes of the subsequent private sale of the collateral by Gavlick. It argues generally that notice of the unsuccessful public sale was sufficient notice for the subsequent private sale of the debtor’s collateral because it complied with the “Letter and Spirit of the Uniform Commercial Code.” We disagree.

The rights of a creditor or secured party to take possession of collateral after default and to dispose of it in a commercially reasonable manner are specifically provided for under the Uniform Commercial Code of this state. See General Statutes §§ 42a-9-503 and 42a-9-504 (1). Prior to disposition, however, the code specifically requires that “[u]nless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor. ...” (Emphasis added.) General Statutes § 42a-9-504 (3). It is thus clear from a reading of § 42a-9-504 (3) that a debtor must be given reasonable notice of “any private sale,” and not just private sales that occur in the absence of a prior unsuccessful public sale of the same collateral. CBT does not dispute the fact that no notices of the sales by Gavlick were ever given. Rather, it argues that proper notice of the public auction constituted sufficient notice of the subsequent private sale.

Although this court has not previously addressed this issue, two lower courts in Connecticut have, as have the courts of a number of other jurisdictions. The cases of Hertz Commercial Leasing Corporation v. Dynatron, Inc., 37 Conn. Sup. 7, 427 A.2d 872 (Super. Ct. 1980), and Savings Bank of New Britain v. Booze, 34 Conn. Sup. 632, 382 A.2d 226 (App. Sess. 1977), both involved the repossession and subsequent disposition of collateral by a creditor after the debtor’s default. In each of those cases the creditor notified the debtor that the collateral would be sold at a public sale that would be held at a specified time, date and place. In Savings Bank of New Britain v. Booze, supra, 632-33, the creditor withdrew the collateral, an automobile, from the auction block because the bids received were insufficient. In Hertz Commercial Leasing Corporation v. Dynatron, Inc., supra, 9, the collateral was not sold at auction for reasons not apparent in the decision. Nevertheless, in each case the collateral was subsequently sold by the creditors without providing additional notice to the debtors. In both cases the courts held that the respective creditors had failed to comply with the notice requirements of § 42a-9-504 (3) because they had failed to give the debtors specific notice of the subsequent private sales. Hertz Commercial Leasing Corporation v. Dynatron, Inc., supra, 12; Savings Bank of New Britain v. Booze, supra, 635-36.

This view is unanimously supported by the decisions of other jurisdictions that have addressed the issue in factually similar situations. In each case noted, the court held that the creditor’s failure to have given notice of a subsequent private sale of unauctioned collateral amounted to noncompliance with the notice requirements of § 9-504 (3) of the Uniform Commercial Code, despite the fact that the debtor had received proper notice of a prior unsuccessful public sale. See In re Lucas, 28 Bankr. 366, 370 (S.D. Ohio 1982); Randolph v. Franklin Investment Co., 368 A.2d 1151, 1155-56 (D.C. 1977); Staley Employee Credit Union v. Christie, 111 Ill. App. 3d 165, 167-68, 443 N.E.2d 731 (1982); National Boulevard Bank of Chicago v. Jackson, 92 Ill. App. 3d 928, 930, 416 N.E.2d 358 (1981); Spillers v. First National Bank of Arenzville, 81 Ill. App. 3d 199, 204-205, 400 N.E.2d 1057 (1980). The basic rationales for these holdings are that (a) the mandatory nature of the notice provisions of § 9-504 (3) of the Uniform Commercial Code require that when a creditor elects the remedy of repossession and subsequent sale, it is the creditor’s obligation to notify the debtor and it is the creditor’s burden to establish the reasonableness of such notice, and (b) the notice provisions were specifically adopted for the benefit of the debtor, to protect the debtor’s interest in his statutory right to redeem the collateral, thereby helping to ensure that the best possible price will be obtained for the collateral, that the sale will be conducted in a commercially reasonable manner, and that the debtor will immediately be placed on notice of the possibility of a deficiency for which he may ultimately be held liable.

CBT contends, however, that in this instance, the notice of the public sale complied with the notice requirements of § 42a-9-504 (3) regarding a private sale because it gave the defendants “notification of the time after which” the collateral was to be disposed. This identical argument was specifically rejected in Staley Employee Credit Union v. Christie, supra. There the court held: “Notice of a public sale to take place on [a specific date], at [a specific time], and at a particular place is not notice ‘of the time after which a private sale or other intended disposition is to be made.’ ”Id., 167. It has also been held that simply making a debtor aware of an impending sale of its collateral at some time in the future is not sufficient notice of a private sale. See In re Lucas, supra; Colorado Leasing Corporation v. Borquez, 738 P.2d 377, 379 (Colo. App. 1986); Spillers v. First National Bank of Arenzville, supra, 202-203.

We think that this view accords with the purposes of the notice provisions of the Uniform Commercial Code. Accordingly, we find that CBT did not comply with § 42a-9-504 (3) when it failed to provide a separate notice to the debtors of the private sales by Gavlick of the collateral in question.

II

CBT next claims that, despite the absence of a proper notice, the sales of the four machines were, nevertheless, conducted in a commercially reasonable manner, thus entitling it to a deficiency judgment. Specifically, it argues that the sales by Gavlick were commercially reasonable because: (1) CBT made a good faith attempt to dispose of the collateral to the parties’ mutual best advantage; (2) the collateral was sold through recognized dealers; and (3) the price obtained for the four machines exceeded the amounts bid at the public auction. These arguments assume that CBT is entitled to a deficiency judgment despite its failure to comply with the notice requirements of the code.

As indicated in the state trial referee’s proposed memorandum of decision, there are three divergent views regarding the right to recover a deficiency judgment when the creditor fails to provide the required notice for the disposition of the collateral. These three lines of authority were most recently reviewed in the Connecticut Superior Court decision of Tennant Co. v. Martin’s Landscaping, Inc., 40 Conn. Sup. 475, 480-83, 515 A.2d 665 (1986). The three views are characterized as (1) the set-off rule, (2) the absolute bar rule, and (3) the rebuttable presumption rule. Id.

Under the set-off rule, a minority view, a secured party who fails to give notice to the debtor as required by § 42a-9-504 (3) may, nevertheless, obtain a deficiency judgment subject to a reduction or set-off under General Statutes § 42a-9-507 (1) for any loss suffered by the debtor as a result of the secured party’s failure to comply with the code. Id., 482. Under this rule, it is the debtor’s burden to show that a violation of the code has occurred and that a loss resulted therefrom. See Mercantile Financial Corporation v. Miller, 292 F. Sup. 797, 801 (E.D. Pa. 1968); Valley Mining Corporation, Inc. v. Metro Bank, 383 So. 2d 158, 163-65 (Ala. 1980); McIlroy Bank & Trust v. Seven Day Builders, 1 Ark. App. 121, 130, 613 S.W.2d 837 (1981); Wilmington Trust Co. v. Conner, 415 A.2d 773, 777 (Del. Super. 1980); Crowder v. Allied Investment Co., 190 Neb. 487, 490, 209 N.W.2d 141 (1973); see also J. White & R. Summers, Uniform Commercial Code (2d Ed.) § 26-15, p. 1133 n.188; 10 A.L.R.4th 432, 432-37, § 5; 1A M. Bender, Uniform Commercial Code Service, Secured Transactions § 8.06 [2], p. 8-122 n.12. It does not seem just, however, to require the debtor to prove that he suffered a loss when it was the creditor who failed to adhere to the code.

The absolute bar rule holds that a secured party who fails to comply strictly with the notice provisions of the code is absolutely barred from recovering a deficiency judgment even when the disposition of the collateral was otherwise made in a commercially reasonable manner. Tennant Co. v. Martin’s Landscaping, Inc., supra, 480-81, and authorities cited therein; see also J. White & R. Summers, supra, § 26-15, p. 1128 nn.167-70; 1A M. Bender, supra, § 8.06 [2], pp. 8-119-8-120 n.9; 10 A.L.R.4th 420-22, § 3; 59 A.L.R.3d 409-12, § 3. These jurisdictions treat the notification requirements of § 9-504 (3) of the Uniform Commercial Code as a mandatory condition precedent to a secured creditor’s right to recover a deficiency, and thus require strict statutory compliance. Barbree v. Allis-Chalmers Corporation, 250 Ga. 409, 412, 297 S.E.2d 465 (1982); Herman Ford-Mercury, Inc. v. Betts, 251 N.W.2d 492, 496 (Iowa 1977); First National Bank of Maryland v. DiDomenico, 302 Md. 290, 297, 487 A.2d 646 (1985). These jurisdictions take the view that the purposes for which the code was adopted can only be fostered by absolutely barring the recovery of a deficiency judgment unless the code is strictly complied with. See Staley Employee Credit Union v. Christie, supra, 168; Rock Rapids State Bank v. Gray, 366 N.W.2d 570, 573-74 (Iowa 1985); DeLay First National Bank v. Jacobson Appliance, 196 Neb. 398, 408-409, 243 N.W.2d 745 (1975).

In rejecting the application of the absolute bar rule, the Nebraska Supreme Court stated: “No sound policy requires us to inject a drastic punative element into a commercial context.” Cornett v. White Motor Corporation, 190 Neb. 496, 501, 209 N.W.2d 341 (1973). We agree. The absolute bar rule is extremely harsh and appears to ignore the second part of § 9-504 (3) that was also designed to protect the debtor’s interests. That portion provides: “Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. ” (Emphasis added.) Under the absolute bar rule, a disposition of collateral, conducted in the most commercially reasonable manner possible, that realized a price in excess of the existing fair market value for the collateral but less than the amount of the debt owed, would deprive the secured party of a deficiency judgment, even when such a price was obtained solely as a result of the good faith efforts of the secured party. We believe that such a result would not comport with the general purposes of article nine of the Uniform Commercial Code and would encourage debtors in default to walk away from their obligations. See Clark Leasing Corporation v. White Sands Forest Products, Inc., 87 N.M. 451, 455, 535 P.2d 1077 (1975).

We, therefore, adopt what we think is the better view and that applied by the trial referee below and by two lower courts of this state, which is known as the “rebut-table presumption” rule. See Tennant Co. v. Martin’s Landscaping, Inc., supra, 483; Savings Bank of New Britain v. Booze, supra. Under this rule, a secured party who has failed to give proper notice to the debtor is not absolutely barred from recovering a deficiency judgment. Rather, in the absence of proper notice, a presumption arises in favor of the debtor that the collateral was worth at least the amount of the debt. The burden then shifts to the secured party to establish by a preponderance of the evidence the amount that should reasonably have been obtained through a sale conducted in accordance with the “commercially reasonable” requirements of the code. Tennant Co. v. Martin’s Landscaping, Inc., supra, 481-83, and authorities cited therein; Savings Bank of New Britain v. Booze, supra; Weiner v. American Petrofina Marketing, Inc., 482 So. 2d 1362, 1365 (Fla. 1986); Levers v. Rio King Land & Investment Co., 93 Nev. 95, 99, 560 P.2d 917 (1977); Clark Leasing Corporation v. White Sands Forest Products, Inc., supra, 456; see also J. White & R. Summers, supra, § 26-15, pp. 1132-33 n.187; 1A M. Bender, supra, § 8.06 [2], pp. 8-120-8-121 n.10; 10 A.L.R.4th 422, 422-32, § 4.

To meet this burden the secured party must demonstrate that each and every aspect of the sale was conducted in a “commercially reasonable” manner. See General Statutes § 42a-9-504 (3). Generally, this requires evidence of such things as the amount of advertising done, the number of people contacted, normal commercial practices in disposing of the particular collateral, the length of time between the repossession and the sale, whether any deterioration in the collateral has occurred, the number of bids received, and the price obtained. See Farmers Equipment Co. v. Miller, 252 Ark. 1092, 1099, 482 S.W.2d 805 (1972); National Boulevard Bank of Chicago v. Jackson, supra, 930; Clark Leasing Corporation v. White Sands Forest Products, Inc., supra, 454; Vic Hansen & Sons, Inc. v. Crowley, 57 Wis. 2d 106, 113-15, 203 N.W.2d 728 (1973).

The record before this court is devoid of evidence demonstrating that the private sales by CBT through Gavlick were conducted in a commercially reasonable manner. In fact, the record lacks any evidence regarding the actual sales themselves. The only facts apparent from the record are that the four machines were sold by Gavlick, which was a used machinery dealer, sometime between January 25, 1975, and February, 1976, for a total value of $106,000. Charles O. Poulin, the president of CBT from 1973 to 1978, testified that he did not know how, to whom, or when the four machines had been sold. In fact, he testified that he had received no notices prior to the actual sales. He only became aware of the disposition of the machinery by way of the accountings filed by Thomas Industries, Inc., in April, 1975, and February, 1976, that stated simply the amounts realized from the sales. The accountings did not specify the date of the sales, to whom the machinery was sold, or which of the four machines were sold on what occasion.

In addition, Thomas Gagliardi, the president of Thomas Industries, Inc., testified at trial that he had no knowledge of how Gavlick disposed of the collateral. The only thing he recalled was that the machines were shipped to Gavlick on consignment sometime after the public auction. Gagliardi was not even sure whether the machines had been shipped to Gavlick together or separately. It must also be noted that CBT failed to call as a witness any representatives of Gavlick to establish the details of the sales.

CBT argues that it proved that the disposition of the machines was accomplished in a commercially reasonable manner simply because they were sold through Gavlick, which was a recognized used machinery dealer. We disagree. General Statutes § 42a-9-507 (2) provides in relevant part: “If the secured party . . . has otherwise sold [the collateral] in conformity with reasonable commercial practices among dealers in the type of property sold, he has sold in a commercially reasonable manner.” (Emphasis added.) Contrary to CBT’s claim, this portion of § 42a-9-507 (2) does not create an irrebuttable presumption that collateral has been disposed of in a commercially reasonable manner, where the only fact known is that the collateral was disposed of by a dealer. Rather, § 42a-9-507 (2) also requires the collateral to have been sold “in conformity with reasonable commercial practices among dealers in the type of property sold.” As previously stated, CBT has presented no evidence to indicate by what method or to whom Gavlick sold the machines. Additionally, CBT failed to establish the reasonable commercial practices among used equipment dealers for the disposition of injection molding machines, or Gavlick’s prior experience in disposing of machines of this type.

Accordingly, we find that the trial court did not err in holding that CBT failed to demonstrate that the private sales of the four machines had been conducted in a commercially reasonable manner as required by § 42a-9-504 (3).

Alternatively, CBT argues that the details regarding the method and manner of the private sales of the collateral are irrelevant here because the prices ultimately obtained were fair given the fact that they exceeded the amounts bid at the public sale. In addition, CBT argues that “price is the single most important factor in determining whether a section 9-504 sale has been commercially reasonable.”

While the price received at the sale of the collateral is important and one of the relevant factors in determining whether the sale was commercially reasonable, alone it is insufficient to establish that the sale was commercially reasonable or to establish the reasonable value of the collateral sold. National Boulevard Bank of Chicago v. Jackson, supra, 931; Hall v. Owen County State Bank, 175 Ind. App. 150, 163, 370 N.E.2d 918 (1977); DeLay First National Bank & Trust Co. v. Jacobson Appliance, supra, 407-408; First National Bank of Bellevue v. Rose, 188 Neb. 362, 364, 196 N.W.2d 507 (1972); Levers v. Rio King Land & Investment Co., supra, 98; 1A M. Bender, supra, § 8.04 [2] [a], p. 8-79. Rather, “ ‘it is only where the sale is conducted according to the requirements of the code [i.e., commercially reasonable] that the amount received or bid at a sale of collateral is evidence of its true value in an action to recover a deficiency.’ Universal C.I.T. Credit Corporation v. Rone, 248 Ark. 665, 669, 453 S.W.2d 37, 39-40 (1970).” Hall v. Owen County State Bank, supra; see also Clark Leasing Corporation v. White Sands Forest Products, Inc., supra. In any event, the burden rests upon the secured party to establish the fair market value of the collateral at the time of the sale by presenting credible and objective evidence of the value other than the price received or the opinions of its own agents and employees. Farmers State Bank of Leeds v. Thompson, 372 N.W.2d 862, 866 (N.D. 1985), citing State Bank of Towner v. Hansen, 302 N.W.2d 760, 767 (N.D. 1981); see also Weaver v. O’Meara Motor Co., 452 P.2d 87, 92-93 (Alaska 1969); Hall v. Owen County State Bank, supra; 59 A.L.R.3d 361, 373, 374.

In the case at hand, the only evidence CBT presented, other than the price received, was the testimony of Thomas Gagliardi, who was the president of Thomas Industries, Inc. Gagliardi testified that, in his opinion, which was based upon his knowledge and experience as an auctineer of heavy machinery and on conversations he had with the manufacturer of the machines prior to trial, the $105,000 received by Gavlick represented the “fair liquidation value” of the four machines given the conditions that existed in the plastics industry in January, 1975.

To the contrary, the defendants offered the testimony of Victor Incendy in an attempt to establish that the value of the machines was actually $175,000 to $180,000. Incendy referred to the three conditional sales contracts entered into between CEP and the Stokes Equipment Division of the Pennwalt Corporation covering CEP’s purchases of the four machines in question.* The three sales contracts dated April 7,1972, July 28, 1972, and March 5,1973, respectively, indicate the following cash prices that CEP paid for the four machines: $72,600 for two 900-782-3 New Stokes Model 175H 10XL Horizontal Molding presses; $54,400 for one 900-784-7 New Stokes Model 375-H-25 Horizontal Molding press; and $49,000 for one New Stokes 300H25 Horizontal Injection Molding Machine. Thus, the total cash price CEP paid for the four machines when they were new was $176,900. Incendy also testified that, as of February, 1975, the two 900-782-3 presses, to which he made $30,000 in modifications, had a combined value of $80,000 to $90,000 and that the remaining two machines had a combined value of approximately $130,000.

In addition, Incendy also testified that in March, 1975, he purchased four other used plastic injection molding machines in pursuit of a new business and paid a total cash price of $142,000 for them. Incendy stated that these four machines were much older, made by different manufacturers, and were of inferior quality to the Stokes machines because of their construction, engineering and operation, with the major difference being that one group operated hydraulically while the other group operated mechanically. At the close of his testimony, he stated that, at the time of the public auction in January, 1975, the four Stokes machines disposed of by Gavlik were worth a total of $175,000 to $180,000.

After having considered the conflicting evidence regarding the values of the machines, the trial referee held that it “was unable to determine the fair market value or the fair or reasonable value of the collateral at the time of the sale,” because the opinions of Gagliardi and Incendy “were not adequately reinforced by independent evidence which would afford them sufficient weight for acceptance by the trier.” Consequently, the trial referee concluded that CBT had not met its burden of proof that the sales were “commercially reasonable” so as to overcome the presumption that the value of the collateral was worth at least the amount of the debt. We agree.

“ ‘The determination of value by a [trial] court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in the light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it.’ [Citations omitted.] .... It is axiomatic that the determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 183, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985); see also Turgeon v. Turgeon, 190 Conn. 269, 274-75, 460 A.2d 1260 (1983); Griffin v. Nationwide Moving & Storage co., 187 Conn. 405, 422-23, 446 A.2d 799 (1982).

Here, the trial referee was presented with two divergent opinions that were approximately $70,000 apart and only marginally supported. Gagliardi admitted during his testimony that he was only “reasonably” familiar with molding machines as they existed in 1974 and that he was unaware of their actual 1974 costs. He further testified that the manufacturer of the machines, with whom he spoke prior to trial, had difficulty in establishing the 1974 values because of the difficulty in going back ten years into its files. In addition, his opinion stated that the $105,000 received by Gavlick was the fair liquidation value as of January, 1975, given the market conditions existing in the plastics industry. We first note that two of the machines were sold sometime before April, 1975, and the remaining two sometime before February, 1976. No one testified as to the market conditions after January, 1975, and, in fact, Gagliardi’s testimony could lead one reasonably to infer that the conditions in the plastics industry later became more favorable to disposing of the machines at a better price. He had testified that the adverse effects of the oil embargo of 1973 on the plastics industry lessened within three years and that, possibly, the prices for such machines stabilized even earlier. Thus, the conditions of the plastics industry were unclear when the four machines were actually sold. Accordingly, we cannot find that the trial referee erred in concluding that CBT had failed to present sufficient evidence to overcome the presumption that the value of the collateral was equal to the amount of the debt. This conclusion is further supported in light of the conflicting evidence of value presented by Incendy.

Therefore, we hold that CBT failed to demonstrate what the reasonable value of the machines was at the time of the sales or that the sales of the machines were conducted in a commercially reasonable manner. Thus the trial court properly denied the deficiency judgment sought by CBT.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 42a-9-504 (3) provides: “secured party’s RIGHT TO DISPOSE OP COLLATERAL AFTER DEFAULT; EFFECT OF DISPOSITION. . . .
      “(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received, before sending his notification to the debtor or before the debtor’s renunciation of his rights, written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”

       Subsequent to the execution of the promissory note and the guaranty, CBT advanced the additional sums of $6000 on July 23,1974, and $10,000 on September 13,1974, to CEP. There is no dispute that these sums were covered by the Incendys’ guaranty.

       The amount was originally $150,000 but was changed by agreement to $145,000.

       In March, 1975, CBT paid to Pennwait Corporation and ITT Industrial Credit, Inc., a total of $92,585.81 to satisfy their liens on the four machines. In return, Pennwait Corporation and ITT Industrial Credit, Inc., assigned their interests to CBT. Thus CBT obtained first lienholder status in these machines.

       In the accounting, Thomas also informed CBT that it desired to sell the remaining two machines prior to January 1, 1976, due to a slump in the market for injection molding machines caused by the oil embargo.

       CBT took no action between December 18, 1979, and November 17, 1981, because it was awaiting the results of a prior foreclosure action in which it had been cited because of its mortgage on the Incendys’ real estate.

       The defendants also pleaded, as a special defense, the running of the six year statute of limitations. This defense was denied by CBT and was not pressed below. The trial referee deemed the defense to have been abandoned and neither party has raised this issue on appeal.

       The defendants have not appealed the rendering of the judgment for plaintiff on their counterclaim.

       General Statutes § 42a-9-507 (1) and (2) provide: “secured party’s LIABILITY FOR FAILURE TO COMPLY WITH THIS PART. (1) If it is established that the secured party is not proceeding in accordance with the provisions of this part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten per cent of the principal amount of the debt or the time price differential plus ten per cent of the cash price.
      “(2) The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner. The principles stated in the two preceding sentences with respect to sales also apply as may be appropriate to other types of disposition. A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.”

       Gagliardi testified earlier that the plastics industry experienced a difficult period of uncertainty because of the oil embargo that occurred in 1973. Manufacturers of molding machines began to experience surpluses in their inventories of new equipment because plastics are made from petroleum which was in short supply. Gagliardi indicated that Thomas Industries, Inc., was therefore concerned about the prices it could obtain for the four machines at that time.

       The three contracts were attached to the Assignment Agreement executed between CBT and the ITT Industrial Credit, Inc., and Pennwalt Corporation under which CBT attained first lienholder status in the four machines by paying off the amounts owed to ITT/Pennwalt.

       One machine was made in 1954, the other three in the 1960s.

       The attorney state trial referee found both Gagliardi and Incendy competent for purposes of voicing an opinion regarding the reasonable values of the machines at the time of their sales. We agree because experts and owners of property are competent to testify as to the value of the property. See Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982).


text:
    State of Connecticut v. Jose Vilalastra
    (13160)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued February 2
    decision released April 5, 1988

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., and Franks. Maco, assistant state’s attorneys, for the appellant (state).

      Judy Ann Stevens, for the appellee (defendant).
   Shea, J.

A jury found the defendant guilty of the crimes of possession of cocaine with intent to sell, a violation of General Statutes § 2 la-277 (a), possession of marihuana, a violation of General Statutes § 21a-279 (c), possession of cocaine, a violation of General Statutes § 21a-279 (a), and possession of drug paraphernalia, a violation of General Statutes § 21a-267 (a). On the defendant’s appeal from the judgment of conviction, the Appellate Court determined that the trial court had erred in allowing two police officers, as expert witnesses, to give opinion testimony concerning the defendant’s intent to sell cocaine. State v. Vilalastra, 9 Conn. App. 667, 521 A.2d 170 (1987). The Appellate Court’s conclusion in this regard affected only the conviction for possession of cocaine with intent to sell. The state, after this court had granted certification, appealed from the Appellate Court’s judgment reversing in part the judgment of the trial court. We conclude that the trial court did not err in admitting the expert testimony of Detective James Honis. We also conclude that the trial court did err in admitting a portion of Detective Paul Lengyel’s expert testimony, but we determine that this error was harmless in nature. Accordingly, we reverse the judgment of the Appellate Court and remand the case to that court with direction to reinstate the judgment of the trial court.

Although the facts that the jury could reasonably have found are set forth in State v. Vilalastra, supra, we summarize those pertinent to the issues in this appeal. Pursuant to a search warrant, the Bridgeport police department searched the defendant’s apartment in the city of Bridgeport. Officer Honis, during his search of the bedroom, uncovered a brown pouch in the headboard of the bed. The pouch contained eight bags of white powder, which later proved to be cocaine. The police found a black plastic grinder and a spoon, both having traces of cocaine, in a small sitting room. A brown bottle labeled “Lactose,” containing white powder and traces of cocaine, was found in the same area. Six photographs with traces of cocaine, a box of plastic bags, a box of aluminum foil and $801 in cash were also discovered. Charles Reading, a toxicologist, testified that the cocaine in the eight packets was 83 percent pure, and that its total weight was about nine-tenths of an ounce.

I

The only issue presented by this appeal is whether the Appellate Court was correct in concluding that the trial court erred in allowing Honis and Lengyel, as expert witnesses, to give opinion testimony concerning the defendant’s intent to sell cocaine and that such error was not harmless under the standard applicable to constitutional errors. We note initially that the Appellate Court concluded that “[t]he trial court did not err in finding that the police officers possessed a special skill related to the matter in issue and that they qualified as expert witnesses.” State v. Vilalastra, supra, 679. The defendant does not challenge the Appellate Court’s conclusion in that regard.

Honis was asked by the state’s attorney, “Assume the fact that has been testified to that State’s Exhibit F has 83 percent cocaine .... I am asking you how that would affect your opinion you have previously given for the purpose for which it was possessed.” Honis responded that “[i]t would be my opinion that cocaine that is 83 percent [pure] would be cut down, would be cut with say some lactose, to be knocked down to a lesser purity.” He testified in addition that cocaine commonly seized on the street “runs three, five or eight percent purity.”

The state’s attorney asked Lengyel, “Would you [be] able to formulate an opinion based on your training and experience and the facts as I gave you, whether or not the items found . . . were possessed for either personal use and consumption or with the intent to sell and or dispense?” After the trial court had overruled the defendant’s objection that this question was “purely speculative and conjectural and goes to the ultimate issue that the jury has to determine on the first count,” Lengyel replied, “My opinion is that this would be used for sale, not personal use.”

The Appellate Court “conclude[d] that it was error for the trial court to allow the police officers to give opinion testimony on the defendant’s intent to sell narcotics.” State v. Vilalastra, supra, 681. In reaching this conclusion, the Appellate Court relied on “[t]he limitation placed upon the scope of expert testimony by Connecticut case law, taken in conjunction with the prohibition set forth in § 704 (b) of the Federal Rules of Evidence . . . .’’Id.

To the extent that the Appellate Court may have rested its decision on rule 704 (b), it was applying a rule of evidence that was without force even in the federal courts at the time of trial. The trial of this case took place from August 15 to August 22, 1984. Rule 704 (b) did not become effective in the federal courts until October 24,1984. We note initially that the Federal Rules of Evidence are not binding on our courts, although they are often influential in shaping our evidentiary rules. See State v. McCarthy, 197 Conn. 166, 173, 496 A.2d 190 (1985). Newly enacted statutes are generally given only prospective effect unless there is clear evidence that the legislature intended to give the statute retroactive effect. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 232-33, 477 A.2d 988 (1984). In those cases in which our courts choose to follow the Federal Rules of Evidence, those rules should ordinarily have only a prospective effect. Our conclusion that the Appellate Court should not have retroactively applied rule 704 (b) to the case at bar is consistent with legislative action in this evidentiary area. As the Appellate Court noted, rule 704 (b) served as the model for Public Acts 1985, No. 85-605, which became effective on October 1, 1985. General Statutes § 54-86i; State v. Vilalastra, supra, 681 n.4. There is no evidence in the legislative history or the text of this statute that the legislature sought to give it retroactive effect. Accordingly, we need not decide whether General Statutes § 54-86Í would bar the testimony given by either Honis or Lengyel in this case.

We also conclude that the Appellate Court erred when it determined that the opinion testimony of Honis was inadmissible because of the “limitation placed upon the scope of expert testimony by Connecticut case law.” State v. Vilalastra, supra, 681. An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. State v. Donahue, 141 Conn. 656, 667, 109 A.2d 364 (1954), appeal dismissed and cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955). “Experts can [however,] sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954). Geraty v. Kaufman, 115 Conn. 563, 572, 162 A. 33 (1932). Expert opinion on the ultimate issue in professional negligence cases is routine. Pisel v. Stamford Hospital, 180 Conn. 314, 430 A.2d 1 (1980).” C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.17.3, p. 186. In State v. Johnson, supra, 562, a police officer, who had been qualified as having expert knowledge of the mechanics of the numbers game, “was asked to express his opinion as to the significance of the numbers written on [certain] cards.” The officer expressed his opinion concerning the numbers after the trial court had overruled an objection by the defendant “that any answer which the witness might give would, in effect, be a usurpation of the function of the court to determine what significance, if any, should be attributed to the numbers.” Id. We held: “Only through an expert’s opinion could the court intelligently make a finding as to the purpose, if any, of the writings. The situation was of such a nature as to require an expert to express an opinion on the precise question upon which the court ultimately had to pass. Lentine v. McAvoy, 105 Conn. 528, 533, 136 A. 76 [1927]; St. George Pulp & Paper Co. v. Southern New England Telephone Co., 91 Conn. 563, 570, 100 A. 358 [1917]. The court did not abuse its discretion in admitting [the police officer’s] testimony.” Id., 563.

The Appellate Court acknowledged that “[w]here the issue is intent to sell narcotics, a police officer, testifying as an expert, may give an opinion as to the quantity of narcotics which a dealer might possess or the manner in which a drug might be transported by a dealer. State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972); State v. Williams, 169 Conn. 322, 334, 363 A.2d 72 (1975).” State v. Vilalastra, supra, 680. The case of State v. Williams, supra, cited by the Appellate Court, is especially pertinent to the case at bar: “The police officer was asked whether it would be usual or unusual to find a person who is only a narcotics user in possession of as many as forty-five bags of heroin at a time. The defendant objected on the grounds that the question called for an answer in speculation and that it was also irrelevant and immaterial. The witness answered that it would be highly unusual. The defendant was charged not only with possession but also with intent to sell. Specific intent is usually proven by circumstantial evidence. State v. Sul, 146 Conn. 78, 87, 147 A.2d 686 [1958]. State v. Nathan, 138 Conn. 485, 488, 86 A.2d 322 [1952]. One of the circumstances relevant to such specific intent in this case was the amount of heroin possessed by the defendant. State v. Avila, 166 Conn. 569, 577, 353 A.2d 776 [1974]. It was proper for the state to offer evidence to aid in determining the questions in issue, and particularly through a police officer who qualified as an expert on the habits of narcotics users. State v. Grayton, [supra]; State v. Grosso, 139 Conn. 229, 233, 93 A.2d 146 [1952]. Any objection to this officer’s testimony would go to its weight rather than to its admissibility. State v. Grayton, supra.”

Honis’ testimony was similar to that given by the officer in State v. Williams, supra. Honis was asked by the state’s attorney, “Assume the fact that has been testified to that State’s Exhibit F has 83 percent cocaine. . . . I am asking you how that would affect your opinion you have previously given for the purpose for which it was possessed.” Honis responded, “It would be my opinion that cocaine that is 83 percent would be cut down, would be cut with say some lactose, to be knocked down to a lesser purity.” The state’s attorney then asked, “Based on your training and experience and investigations in the field, could you explain why?” Honis then answered that cocaine commonly seized on the street “runs three, five or eight percent purity.” There is no significant difference between Honis’ testimony and that of the police officer in State v. Williams, supra, that narcotics users did not usually possess as many as forty-five bags of heroin at a time. Honis did not testify that he thought that the defendant had the intent to sell the cocaine found in the defendant’s apartment. We conclude that Honis’ testimony concerning the customary practice of cocaine dealers was properly admitted by the trial court and that the Appellate Court erred when it determined otherwise.

We agree, however, with the Appellate Court’s conclusion that the trial court erred in permitting the state’s attorney to ask Lengyel, “Whether or not the items found . . . were possessed for either personal use and consumption or with the intent to sell and or dispense.” The state’s attorney could have solicited Lengyel’s opinion concerning whether these items are commonly used by drug sellers, but it was improper to inquire whether in Lengyel’s expert opinion the defendant was a drug seller or user based on the items found.

We recognize that there is considerable authority in other jurisdictions to support the state’s contention that the trial court did not err in permitting the state’s attorney’s disputed question and Lengyel’s response.

“[I]n a majority of state courts an expert may state his opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion are met.” C. McCormick, Evidence (3d Ed.) § 12, p. 30. Some jurisdictions have even permitted a police officer, who qualified as an expert witness, to testify that in his opinion a defendant had possessed certain drugs with the intent to sell. State v. Carreon, 151 Ariz. 615, 729 P.2d 969 (Ct. App. 1986); Hinnant v. United States, 520 A.2d 292 (D.C. App. 1987); Commonwealth v. Johnson, 358 Pa. Super. 435, 517 A.2d 1311 (1986).

“However, there is something rather offensive in allowing an investigating officer to testify not simply that a certain pattern of conduct is often found in narcotics cases, leaving it for the jury to determine whether the defendant’s conduct fits the pattern, but also that such conduct fitted that pattern, at least when other inferences could have been drawn not unreasonably although perhaps not as reasonably as that to which the expert testified.” United States v. Brown, 776 F.2d 397, 401 (2d Cir. 1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1793, 90 L. Ed. 2d 339 (1986). Nevertheless, the court in United States v. Brown, supra, concluded that a police officer, who qualified as an expert, could give opinion testimony indicating that the defendant had acted as a “steerer” in a drug sale.

“Under Fed. R. Evid. 702, expert testimony is admissible if it ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’ The subject of the expert testimony here, i.e., the clandestine manner in which drugs are bought and sold, is unlikely to be within the knowledge of the average layman. United States v. Johnson, 575 F.2d 1347, 1361 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S. Ct. 1214, 59 L. Ed. 2d 454 (1979).” United States v. Carson, 702 F.2d 351, 369 (2d Cir.), cert. denied sub nom. Mont v. United States, 462 U.S. 1108, 103 S. Ct. 2465, 77 L. Ed. 2d 1335 (1983). We believe that a trial court should have broad discretion in the matter of the admission of expert testimony concerning the sale of illicit drugs. Id., 369-70. Expert witnesses may testify that certain behavior by a defendant or his possession of particular items is conduct similar to that engaged in by the typical drug dealer. United States v. Brown, supra, 400-402. A police officer, who is qualified as an expert witness, may even testify that, in light of the officer’s personal observations of his conduct, it appeared that a defendant was engaged in narcotics sales. United States v. Young, 745 F.2d 733, 760-61 (2d Cir. 1984), cert. denied sub nom. Myers v. United States, 470 U.S. 1084, 105 S. Ct. 1842, 85 L. Ed. 2d 142 (1985); United States v. Carson, supra, 369-70.

We hold, however, that the state may not ask an expert witness whether in his expert opinion a defendant possessed illegal drugs for sale or consumption. We note that it would have been entirely proper for the state’s attorney to have asked Lengyel whether in his expert opinion drug sellers usually work with the items found and seized in the defendant’s apartment, or whether it would be unusual to discover these items in the apartment of someone who did not sell drugs. State v. Girolamo, 197 Conn. 201, 213, 496 A.2d 948 (1985); State v. Williams, supra; State v. Grayton, supra.

II

The Appellate Court determined that the trial court’s error in admitting Lengyel’s testimony, as well as that of Honis, was of constitutional significance “because this claim implicates the defendant’s constitutional right to a fair trial . . . .” State v. Vilalastra, supra, 681. Accordingly, it placed the burden on the state to prove that this error was harmless beyond a reasonable doubt and also held that the state had failed to meet this burden.

We conclude that the Appellate Court erred in determining that this error was of constitutional significance. The opinion does not explain why the erroneous admission of a portion of Lengyel’s testimony deprived the defendant of his constitutional right to a fair trial, nor does it rest its conclusion upon any provision of the United States or the Connecticut constitution. State v. Vilalastra, supra, 680-82. The Appellate Court cited only one case to support its conclusion that the error was of constitutional magnitude. State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). In State v. Cohane, supra, however, we held that a defendant has a right under the fifth amendment to the United States constitution, upon proper request, to an instruction that the jury not draw inferences of guilt from the exercise of his right not to testify, and that the state has the burden of proving that the failure to give such an instruction is harmless beyond a reasonable doubt. The facts and issues in the case at bar are significantly different from those in State v. Cohane, supra.

The Appellate Court “has put a constitutional tag on a nonconstitutional evidentiary ruling.” State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987); accord State v. Mullings, 202 Conn. 1, 15, 519 A.2d 58 (1987); State v. McIntosh, 199 Conn. 155, 162, 506 A.2d 104 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). “Generally, ‘the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.’ State v. Periere, [186 Conn. 599, 611, 442 A.2d 1345 (1982)], quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir. 1974).” State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985). The defendant has failed to cite a single case from any jurisdiction in which a court has held that the erroneous admission of expert testimony concerning an ultimate fact implicates fundamental fairness or constitutes the violation of a specific constitutional right. Courts in other jurisdictions have not attached constitutional significance to this type of evidentiary error. United States v. Brown, supra; United States v. Young, supra; United States v. Carson, supra; State v. Carreon, supra; Hinnant v. United States, supra; Commonwealth v. Johnson, supra.

“When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).

There was considerable evidence indicating that the defendant possessed the cocaine with the intent to sell. Dr. Charles Reading, a toxicologist, testified that the eight packets of cocaine found in the defendant’s bedroom contained about nine-tenths of an ounce or twenty-six grams of cocaine, and that this cocaine was 83 percent pure. The police also seized, pursuant to the search warrant, a tin foil packet from the defendant’s pocket. Reading testified that this packet contained two-tenths of a gram of cocaine, and that this cocaine was 28 percent pure. The state’s attorney asked Reading how many packets of similar nature to the one found in the defendant’s pocket could be prepared from the cocaine found in the bedroom. Reading responded that 130 bags could be filled. Honis testified that “cocaine that is 83 percent [pure] would be cut down, would be cut with say some lactose, to be knocked down to a lesser purity.” He testified in addition that cocaine commonly seized on the street “runs three, five or eight percent purity.” The state introduced into evidence as exhibits three items found and seized, pursuant to the search warrant, in the defendant’s apartment: a grinder, a bottle of lactose, and a small spoon. Lengyel properly testified that these items could be used by a drug seller to cut high purity cocaine for street sale. State v. Girolamo, supra; State v. Williams, supra; State v. Grayton, supra. There was an abundance of evidence from which a jury could reasonably conclude that the defendant was guilty of the charge of possession of cocaine with the intent to sell. In view of this strong evidence, we conclude that the defendant has not shown that the erroneous admission of a single question and answer probably affected the result of the trial.

We reverse the judgment of the Appellate Court and remand the case to the Appellate Court with direction to reinstate the judgment of the trial court.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21a-277 (Formerly Sec. 19-480). penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”

       The Appellate Court concluded that the following question by the state’s attorney was erroneously allowed: “Honis was asked to explain the relationship between the purity of the cocaine seized ‘in your opinion and whether or not this would be possession with the intent to sell or dispense.’ ” State v. Vilalastra, 9 Conn. App. 667, 678, 521 A.2d 170 (1987). The trial court overruled the defendant’s objection to that question, but Honis never answered it. Instead, he asked the state’s attorney to repeat the question. The state’s attorney then rephrased the question in the form quoted in the text of this opinion. The defendant did not object to this rephrased question. The lack of an objection does not preclude our review of this claim, however, because the Appellate Court determined that Honis’ reply, which is quoted in the text of this opinion, implicated constitutional error. Id., 678-81; see State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       Rule 704 (b) of the Federal Rules of Evidence provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.”

       “[General Statutes] Sec. 54-86Í. testimony of expert witness re MENTAL STATE OR CONDITION of defendant. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       The legislative history of Public Acts 1985, No. 85-605, may be found in: (1) 28 H.R. Proe., Pts. 20, 29, 32, 35,1985 Sess., pp. 7120-97,10,728-42, 11,592, 12,442-49; and (2) 28 S. Proc., Pts. 14, 16, 17, 1985 Sess., pp. 4719-30, 5199-5204, 5603-5605, 5635-36. The text of General Statutes § 54-86Í is contained in footnote 4, supra.