author: Callahan, J.

text:
    Joseph Nye et al. v. Mark J. Marcus
    (12714)
    Healey, Shea, Dannehy, Callahan and Quinn, Js.
    Argued October 4
    decision released December 24, 1985

      Shelley White, with whom were Shelley Geballe and, on the brief, Martha Stone, for the appellants (plaintiffs).

      Laurie Adler, assistant attorney general, with whom were Patricia Pac, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (defendant).

      Laurajean Golden filed a brief as amicus curiae.

      Stephen Wizner, Sally Zanger, Miriam Berkman, Mary A. McCarthy and John L. Pottenger, Jr., filed a brief as amici curiae.
   Callahan, J.

This is an appeal by the plaintiffs, Joseph and Rhonda Nye, from the quashing of a habeas corpus petition. On appeal, the plaintiffs claim that the trial court erred in: (1) quashing the plaintiffs’ petition on the ground that the plaintiffs, as foster parents, lacked standing to maintain such an action; and (2) refusing immediately to appoint counsel for the minor child notwithstanding the alleged need for and the availability of competent counsel. We find no error.

A statement of the background in this case is necessary to place the issues in proper context. The minor child, Jennifer, whose custody is in dispute, was born June 9, 1984. When Jennifer was about two months old, the department of children and youth services (hereinafter DCYS) placed her with the Nyes for foster care. She resided continuously with them from August 7, 1984, until the conclusion of the court proceedings on March 22,1985. It is unclear whether the Nyes signed the standard agreement for foster care used by DCYS before Jennifer was placed with them. The Nyes, however, are familiar with the provisions of such a contract and they acknowledge that generally a contract is signed by the parties to a foster care placement. The standard agreement contains the statement that the child is placed with the foster parents “on a temporary care basis only and it is clearly understood that said child is not placed with [the foster parents] for either adoption or long-term foster care.” On December 11,1984, the parental rights of the natural parents were terminated by consent of the natural parents and the defendant commissioner of DCYS was appointed as the statutory parent. See General Statutes § 45-61f. In February, 1985, DCYS informed the Nyes that Jennifer was to be taken from their foster care because another couple had been selected by DCYS as adoptive parents for Jennifer. Neither the Nyes nor the adoptive parents have any blood relationship to Jennifer.

On March 6, 1985, the Nyes filed a writ of habeas corpus, together with a complaint and an application for a temporary injunction, concerning the proposed removal of Jennifer from their foster care. At that time, the trial court granted the temporary injunction enjoining DCYS from removing Jennifer. In March, 1985, the trial court declined to act on the Nyes’ motion for appointment of counsel for Jennifer and granted the commissioner of DCYS’ motion to quash the habeas corpus petition, concluding that the court had no jurisdiction because the Nyes lacked standing to petition for habeas corpus relief. The trial court also dissolved the temporary injunction. The Nyes’ request for a stay of execution of the order quashing the habeas corpus petition and dissolving the temporary injunction pending appeal was denied. This ruling returned physical custody of Jennifer to DCYS as the statutory parent. DCYS removed Jennifer from the care and physical custody of the Nyes and placed her with the adoptive parents.

This action for a writ of habeas corpus was brought pursuant to General Statutes § 52-466. A habeas corpus action has long been recognized in Connecticut as the proper procedure to determine the custody of a minor child. Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978); Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418 (1963); 2 Stephenson, Conn. Civ. Proc. § 259. In such an action, the paramount issue is the best interests of the child. McGaffin v. Roberts, 193 Conn. 393, 403, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). This court is concerned with the best interests of Jennifer. That concern does not mean, however, that we can ignore the necessity that the Nyes have standing to bring a petition for a writ of habeas corpus.

Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties. Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981); Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975). It has long been recognized that a person is not “entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity.” Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953). Standing is aptly described as “a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests . . . ."Maloney v. Pac, supra.

I

In the present case, the plaintiffs assert two grounds in support of their claim of standing. They first claim that they have standing as foster parents to assert their own interest in the maintenance of their family relationship with Jennifer. Secondly, the plaintiffs argue that they have standing derivatively as foster parents to assert the interests of their foster child because of the nature of their relationship with the child and because to deny them standing effectively eliminates the child’s ability to assert her own interest.

A

We first address the plaintiffs’ claim of standing as foster parents to assert their own interest. The plaintiffs argue that their interest in the protection of their foster parent relationship with Jennifer is sufficient to support their claim of standing. They assert that this court in Kearney v. State, 174 Conn. 244, 386 A.2d 223 (1978), implicitly held that foster parents have standing because there foster parents were permitted to intervene in a custody suit involving their foster child. Kearney, however, can be distinguished from the present case because the initial proceeding in that case was not a proceeding on a habeas corpus petition. Instead it was an action for an injunction brought by adoptive parents against DCYS on the basis of a contract to adopt. A writ of habeas corpus was sought only in a counterclaim brought by the foster parents. The foster parents in Kearney did not institute the suit but were merely permitted to intervene as defendants. In the present case, the Nyes are bringing the custody of Jennifer into question by initiating the action rather than by simply intervening in a preexisting lawsuit. Furthermore, even if the differences between the two cases are ignored, the court in Kearney never addressed the issue of standing and specifically never considered whether foster parents have standing to bring a habeas corpus proceeding. We therefore do not find Kearney controlling on this issue.

In Doe v. Doe, 163 Conn. 340, 345, 307 A.2d 166 (1972), this court held that only parents or legal guardians of a child have standing to seek habeas corpus relief. In that case, a man who had supported and lived with a child and her mother for ten years brought a habeas corpus action to determine the right of custody and to secure visitation with a minor child. On appeal he challenged only that part of the judgment relating to visitation rights. The court denied him standing because he was not the child’s parent or legal guardian. Doe v. Doe, supra. Standing was denied in that case even though the plaintiff had extensive contact and emotional ties with the child. Doe and the present case are similar because in both cases the claim of standing was based on an emotional relationship with the child rather than on a biological or legal guardian relationship.

Foster families differ from biological families in that they have their source in state law and contractual arrangements. Smith v. O.F.F.E.R., 431 U.S. 816, 845, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977). Foster families do not have the same rights as biological families or adoptive families. Rather, the expectations and entitlements of foster families can be limited by the state. Smith v. O.F.F.E.R., supra; see Drummond v. Fulton County Department of Family & Children’s Services, 563 F.2d 1200, 1207 (5th Cir. 1977). Biological and adoptive families have a liberty interest in the integrity of their family unit which is part of the fourteenth amendment’s right to familial privacy. Smith v. O.F.F.E.R., supra, 842. Foster care arrangements of the nature and duration considered in the present case do not have this constitutionally protected liberty interest. Kyees v. County Department of Public Welfare, 600 F.2d 693, 698-99 (7th Cir. 1979); Drummond v. Fulton County Department of Family & Children’s Services, supra. Further, the plaintiffs had no basis for a justifiable expectation that their relationship with Jennifer would be anything but temporary. See Drummond v. Fulton County Department of Family & Children’s Services, supra. We hold, therefore, that under these circumstances the Nyes do not have standing as foster parents to assert their own interest in the maintenance of their family relationship with Jennifer. They do not have a liberty interest and their emotional relationship with the child, which was acquired through the temporary foster placement, is too tenuous a basis to afford standing to institute a habeas corpus proceeding against the child’s statutory parent and legal guardian.

B

Next, we address the Nyes’ claim of standing based on their assertion of Jennifer’s interests. The Nyes argue that Jennifer has an interest in both the continuity of care she receives and in a stable home environment, which should be given judicial protection. The Nyes also argue that they should be the ones to assert Jennifer’s interests because she does not have any natural parents to represent her and only they as foster parents “are both capable of and willing to assert [Jennifer’s] interests . . . We do not share the plaintiffs’ view. As the “statutory parent” of Jennifer, DCYS provides for her welfare, which includes acting in her best interests. See General Statutes §§ 17-410 et seq., 45-61h. The commissioner of DCYS has been given authority by the legislature to determine custody of children committed to his care. See General Statutes §§ 45-61 et seq., 17-32 et seq. It is clear that the legislature intended that DCYS safeguard Jennifer’s best interests regarding custody. The Nyes, therefore, are incorrect in saying that they are the only ones able to assert and protect Jennifer’s best interests.

Furthermore, although the plaintiffs argue that they will assert Jennifer’s interests, the plaintiffs’ interests may well be in conflict with Jennifer’s interests. “[I]t is by no means obvious that foster parents and foster children have the same interest in a continuation of their relationship. When the child leaves the foster family, it is because the agency with custody of him has determined that his interests will be better served by a new home, either with his natural parents, adoptive parents, or a different foster family. Any assessment of the child’s alleged deprivation must take into account not only what he has lost, but what he has received in return.” Smith v. O.F.F.E.R., supra, 857 n.1 (Stewart, J., concurring). Therefore, the foster parents are not an appropriate neutral party to assert the interests of their foster child in a habeas corpus action. Accordingly, the Nyes do not have standing to assert the interests of Jennifer.

We find no error in the dismissal of the plaintiffs’ habeas corpus action because the plaintiffs lacked standing. To hold otherwise would open the door to any interested individual to litigate what is in the best interests of a foster child who is a candidate for adoption. It would also enable foster parents to delay the adoption of a child whenever they disagree with a placement decision of DCYS. This would undermine the adoption process in Connecticut by interfering with the performance of duties entrusted to DCYS by the legislature. See General Statutes §§ 45-61h, 45-6li, 45-63. This court is concerned with maintaining the integrity of the statutory scheme of foster care and adoption mandated by the legislature and therefore declines to grant standing to foster parents in the position of the plaintiffs to institute a habeas corpus action.

II

The Nyes’ second claim is that the trial court erred in refusing to appoint counsel for Jennifer immediately. They assert that independent counsel for minor children should be appointed in all contested custody proceedings and that such appointment is mandatory unless there are countervailing considerations. This court recognizes the importance generally of appointing counsel for minor children in custody proceedings. See Yontef v. Yontef 185 Conn. 275, 284, 440 A.2d 899 (1981); Kearney v. State, supra, 251. It is not, however, mandatory that counsel be appointed in every situation. “Generally, appointment of counsel for minor children rests within the discretion of the court.” Kearney v. State, supra; see General Statutes § 46b-54; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980).

The proceedings for which counsel would have been appointed in the present case were jurisdictional. As such, the trial court said that it was not “necessary or appropriate to appoint counsel for the minor child at this stage in the proceedings.” The trial court’s decision not to appoint counsel for Jennifer in the jurisdictional proceedings was well within the court’s proper exercise of discretion. The trial court therefore did not err in refusing to appoint counsel for Jennifer immediately.

We find no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-466. application foe writ of habeas corpus. SERVICE, return, (a) An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty.
      “(b) The application shall be verified by the affidavit of the applicant for the writ alleging that he truly believes that the person on whose account the writ is sought is illegally confined or deprived of his liberty.
      “(c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting a true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ. If the officer fails to make immediate return of the writ, with his actions thereon, he shall pay fifty dollars to the person so held in custody.
      “(d) Any judge of the superior court to whom an application for a writ of habeas corpus is made may make the writ returnable before any other judge of the court, the consent of the other judge being first obtained; and the other judge shall thereupon proceed with the matter with the same authority as though the application had been originally presented to him.
      ‘ ‘(e) If the application is made to a judge, the judge may certify the proceedings into court and the case shall thereupon be entered upon the docket and proceeded with as though the application had originally been made to the court.”

       It has been reaffirmed by the United States Supreme Court that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Donald Smith
    (11897)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued October 9
    decision released December 24, 1985

      James E. Swaine, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Donald Smith, was charged in an indictment with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He was convicted by a jury of that charge. The same jury convicted him of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and of assault in the third degree in violation of General Statutes § 53a-61 (a) (l), crimes that were charged in an information and which stemmed from the same incident as the charge of kidnapping. The defendant was sentenced by the trial court to consecutive terms totaling twenty-eight and one-half years to life imprisonment. The defendant has appealed his conviction claiming that: (1) the trial court erred in “accepting” the jury’s verdict of guilty of the charge of kidnapping because there was a variance between the charge as set forth in the indictment and the proof at trial; (2) the trial court erred in denying the defendant’s motion “to limit the state’s proof to the allegations of the indictment”; (3) he was denied effective assistance of counsel; and (4) the trial court erred in certain rulings on the evidence.

From the evidence adduced at the trial the jury could reasonably have found the following relevant facts: On May 22,1981, the victim was sixteen years old and lived in West Haven. That afternoon, at about 2:30 p.m., she went to visit a girl friend who lived four houses away from her. During the visit, she met some of her friend’s relatives, including the defendant, who was her friend’s uncle. The defendant was forty-two years old at the time of the incident and resided in Massachusetts. During the afternoon, the defendant drove the victim and his niece in his pickup truck from his niece’s home to a house several blocks away where his niece had to care for some cats. While his niece fed the cats, the victim remained in the truck with the defendant. On the return trip, the defendant drove past the victim’s house and dropped his niece off at her house. The defendant had said earlier that he was returning to Massachusetts as soon as he dropped his niece off. He also had told the victim that she was a “pretty girl” and a “very attractive girl” and had asked her to return to Massachusetts with him. She declined the invitation.

After leaving his niece at her house, the defendant drove the victim the short distance to her home. He parked and asked her for directions to the highway, interstate 95. The victim gave the requested directions, but the defendant said he wanted her to go with him to show him the entrance. He told her that once he had located the highway he would turn around and bring her back home. The victim informed the defendant that she did not have time because she had to get ready to go to a funeral. The defendant insisted, however, that she accompany him, and when she opened the door to exit the truck the defendant accelerated and the door flew shut. At this point, the victim acquiesced in the defendant’s request and remained in the truck while she directed the defendant to interstate 95. During the ride the defendant told the victim that he would turn around and bring her home when they reached the City Point Yacht Club. The defendant, however, continued driving when he reached the entrance to interstate 95 and then drove onto the highway. Once on the highway, the victim repeatedly asked the defendant to take her home, but he ignored her or told her to “shut up” and continued driving. During the ride the defendant threatened her with a gun which she described as silver with a black piece on the handle. He also showed her pornographic magazines.

Eventually the defendant brought the victim to a dirt road in a wooded area off East Johnson Road in Cheshire. Once there, he ordered her to take off her clothes. When she refused he struck her, held a knife to her throat and cut and tore her clothing. In the face of the defendant’s threats, the victim removed most of her clothing and the defendant sexually abused her. He then choked her until she was unconscious and left her partially clothed in the wooded area. When the victim regained consciousness, she made her way to East Johnson Road where a passing motorist picked her up and gave her a ride back to her parents in West Haven.

The victim’s mother testified that, when she saw her daughter, she appeared to have been “terribly beaten” and her clothes were torn. John Loeffler, a physician who examined the victim at Yale-New Haven Hospital that evening, testified that she was “tearful,” that she had “a number of injuries” and that she appeared to have been strangled. The victim identified the defendant as her abductor.

The indictment accused the defendant of kidnapping in the first degree and charged that, “at the City of West Haven on May 22, 1981,” (emphasis added) the defendant abducted the victim and restrained her with the intent to inflict physical injury upon her and to violate and abuse her sexually in violation of General Statutes § 53a-92 (a) (2) (A).

The defendant first claims that there was a variance between the indictment and the proof offered at trial and that he was prejudiced thereby. He argues, therefore, that the court erred in “accepting” the jury verdict of guilty to the charge of kidnapping. This claim is premised on the defendant’s view that the victim originally agreed to accompany him and that she did not protest her presence in his truck or request to be returned to her home until his truck was on the entrance to interstate 95 in New Haven. Therefore, he claims that she was not restrained and abducted in the city of West Haven as alleged in the indictment. The defendant does not claim, as indeed he cannot, that the court lacked jurisdiction. General Statutes (Rev. to 1981) §§ 51-344 (4), 51-352c.

“This court will construe the evidence in the light most favorable to sustaining the [jury’s] verdict and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom.” State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). The court correctly charged the jury that the “restraint” which is the basis of the crime of kidnapping must have been imposed on the victim without the victim’s consent and that acquiescence secured by fraud or deception is not deemed consent. See General Statutes § 53a-91 (1) (a). The fact that the victim did not affirmatively and vocally protest her continued presence in the defendant’s truck and request him to return her to her home until the truck entered upon interstate 95 in New Haven has no effect on the validity of the jury’s verdict in this case. The jury could reasonably have found proved beyond a reasonable doubt that, while parked in front of her home in West Haven, the defendant requested the victim to accompany him to show him the entrance to interstate 95 and he promised to return her to her home when that was accomplished. The jury could also have found proved beyond a reasonable doubt that the defendant’s request and promise were a ruse employed to lure the victim into his control and that she was therefore deceived into remaining with him. People v. Valero, 120 Misc. 2d 539, 542, 466 N.Y.S.2d 600 (1983). The fact that the victim did not know that she was being restrained is of no consequence. See United States v. Hoog, 504 F.2d 45, 51 (8th Cir. 1974); State v. Colbert, 221 Kan. 203, 557 P.2d 1235 (1976); State v. Alston, 294 N.C. 577, 588-89, 243 S.E.2d 354 (1978). The word “deception” as used in General Statutes § 53a-91 (1) (a) implies that the victim did not know she was being restrained. See State v. Colbert, supra, 209. It is the intent of the accused which the state has to prove, not that of the victim. The jury therefore could have found that the victim was restrained and abducted in West Haven. There was no variance between the indictment and the proof adduced at trial.

Even if there had been a variance, the defendant has failed to demonstrate any resulting prejudice. “The defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done him because of the language of the [indictment].” State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). The defendant’s claim of prejudice is that he was prevented from properly defending the indictment because the allegation that the kidnapping took place in West Haven prevented him from arguing that the restraint of the victim did not constitute kidnapping but rather was merely incidental to the crimes charged in the information which occurred in Cheshire. See State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979); State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977).

“[T]he accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial.” State v. Sumner, supra, 166. It is inconceivable to us how the defendant could have been misled as to the offense with which he was charged. Nor does his brief enlighten us as to why the allegation that West Haven was the place where the kidnapping occurred prevented him from making the claim he now asserts. Further, if the indictment had alleged that the kidnapping occurred in New Haven as the defendant seems to claim, we fail to understand how that would have benefited him in arguing that the kidnapping was merely incidental to the other crimes charged.

The defendant also claims that he was prejudiced because he was forced to structure his case, particularly cross-examination, on the basis of the allegation in the indictment. The bare assertion of prejudice, however, does not make it so. The defendant has failed to demonstrate how he was in fact prejudiced.

The defendant also claims that the court erred in denying his motion to limit the state’s proof to the allegations of the indictment. He argues that the court should have excluded evidence of restraint of the victim which occurred outside the geographical boundaries of West Haven because the indictment alleged the victim was abducted and restrained in West Haven. He contends, therefore, that such evidence was “outside the scope of the indictment” and “irrelevant.” We disagree.

“The state had to prove beyond a reasonable doubt that the defendant possessed the intent to commit the crime charged.” State v. Haddad, 189 Conn. 383, 398, 456 A.2d 316 (1983). The burden of proof on intent “can be borne only by the presentation of circumstantial evidence, because intention is a mental process that necessarily must be proved through inferences drawn from the defendant’s statements and actions.” State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). The state was required to prove that the elements of kidnapping in the first degree existed when the defendant abducted the victim. That is, the state was required to prove that the defendant abducted the victim intentionally and unlawfully with the intent to inflict physical injury upon her or to abuse her sexually. The defendant’s activities during the entire course of the incident were obviously relevant and probative and hence admissible for that purpose. Further, kidnapping by its nature is a continuing crime. People v. LaMarca, 3 N.Y.2d 452, 460, 144 N.E.2d 420, 165 N.Y.S.2d 753 (1957). The trial court therefore did not err in allowing evidence of restraint outside the confines of West Haven.

The defendant’s claim of ineffective assistance of counsel is based on his assertion that his trial counsel failed to make any requests to charge or to take exception to the trial court’s charge concerning his claim that the proof at trial did not conform to the allegations of the indictment. He also claims that trial counsel was ineffective because he failed to move for a judgment of acquittal challenging the sufficiency of the evidence to sustain a verdict on the indictment, apparently for the same reason. In view of our ruling on the defendant’s first claim of error, it would appear that his claim of ineffective assistance of counsel is wholly without merit. State v. McCarthy, 197 Conn. 166, 177-78, 496 A.2d 190 (1985). A claim of ineffective assistance of counsel, however, is more appropriately the subject of a writ of habeas corpus or a petition for a new trial. While the defendant concedes this, he claims that the appellate record in this case supports a finding of ineffective assistance of counsel. We disagree. State v. Vitale, 197 Conn. 396, 497 A.2d 956 (1985).

The defendant’s final claim is that the trial court erred in admitting into evidence the testimony of witnesses concerning an incident which occurred in the late evening of May 22 and the early morning of May 23 at Maggie’s Bar in New Haven. Testimony was elicited by the state that the defendant was in Maggie’s accompanied by another man. While there he became embroiled in an altercation with the owner, a customer and the bartender. Each was called as a witness and testified that during the course of the dispute the defendant displayed a gun and threatened the owner with it. They described the gun variously as a small silver automatic and a small silver handgun. They further testified that they saw the defendant with the gun inside the bar, but at one point he was taken outside with his companion and the gun disappeared. The bartender, Brian Doonan, also testified that the defendant, although he appeared to have been drinking, was in control of his faculties.

As a result of the disturbance the New Haven police were called. Officer Robert Benson responded and arrested the defendant for breach of the peace and threatening. Benson testified that after he arrested the defendant he searched him and found a pocket knife on his person. He identified it as the same knife which had earlier been identified by the victim as the knife with which the defendant had threatened her. The defendant objected to the admission of the testimony concerning the incident at Maggie’s and his arrest on the ground that it was irrelevant and that, even if relevant, its prejudicial effect outweighed its probative value.

The rule concerning admission of evidence of other crimes is a rule of evidence and not of constitutional law. State v. Periere, 186 Conn. 599, 610, 442 A.2d 1345 (1982). “The state may introduce all legally competent evidence which aids the trier of fact in determining the relevant issues.” State v. Howard, 187 Conn. 681, 688 n.4, 447 A.2d 1167 (1982). “As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged.” State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). Evidence that tends to prove the commission of other crimes by the accused is not, however, inadmissible if it is otherwise relevant and material and if its probative value outweighs its prejudicial effect. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982).

If the trial judge, in the exercise of his judicial discretion, determines that the evidence is relevant and that its probative value outweighs its prejudicial effect, his decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. State v. Johnson, 190 Conn. 541, 549, 461 A.2d 981 (1983).

The fact that, within hours after the crime, the defendant had on his person a gun similar to that described by the victim and was in possession of the knife identified by the victim was certainly corroborative of the victim’s testimony at trial; State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975); and was also relevant to establish the identity of the defendant. Also, the defendant’s gun was never found and the incident at Maggie’s tends to explain its disappearance. Further, there had been testimony at the trial that the defendant had been drinking throughout the day. Testimony that he was in control of his faculties late in the evening at a bar bore some relevancy to his condition earlier in the day. His condition was relevant to his ability to form an intent and intent was an element of the crimes with which the defendant was charged.

Obviously, the testimony of the witnesses concerning the gun, the knife and the defendant’s condition had to be placed in some framework. Unfortunately, the witnesses did not meet the defendant at a church social. They had contact with him and gained the information to which they testified because of a fight in a bar which resulted in the defendant’s arrest. There was no way the information which the witnesses possessed coüld be conveyed to the jury and make sense unless it was placed in context. The trial court considered this when it ruled on the defendant’s objection and allowed the testimony. The trial court also instructed the jurors that they were not to consider evidence that the defendant was involved in the incident or arrested for breach of the peace and threatening as evidence that he was a bad person or was guilty of the crimes for which he was on trial. Because the admission of such evidence involves judicial discretion, “[o]ur review is limited to whether [the] ruling exceeded the latitude accorded to the exercise of [such] discretion.” State v. Ibraimov, supra. It did not.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) (2) (A) provides: “Sec. 53a-92. jutonapping IN THE first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes § 53a-72a (a) (1) (A) provides: “Sec. 53a-72a. sexual ASSAULT IN THE THIRD DEGREE: CLASS D FELONY, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”

       General Statutes § 53a-61 (a) (1) provides: “Sec. 53a-61. assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes (Rev. to 1981) § 51-344 (4) provides: “Sec. 51-344. judicial districts established. For purposes of establishing venue, the superior court shall consist of the following judicial districts . . . (4) The judicial district of New Haven: The towns of Bethany, New Haven, Woodbridge, Cheshire, Hamden, Meriden, North Haven, Wallingford, Branford, East Haven, Guilford, Madison, North Branford and West Haven.”

       “[General Statutes (Rev. to 1981)] Sec. 51-352c. (Formerly Sec. 54-41). jurisdiction of various offenses. No criminal prosecution shall fail by reason of the fact that the evidence may disclose the crime to have been committed in a town or judicial district adjoining that alleged in the indictment or information; and when any person is accused of committing any offense on the boundary or divisional line between any of the towns or judicial districts in the state, or so near thereto as to render it doubtful in which town or judicial district the offense was committed, the town or judicial district which first assumes jurisdiction by issuing process for the arrest and prosecution of the offender, whether the name of such offender is known or unknown, shall have exclusive jurisdiction to charge, present, indict, try, convict and sentence; and in such case it shall only be necessary for the state, judicial district, town, city or borough to establish the venue alleged in the information, complaint, warrant or indictment by proving that the offense alleged was committed on the boundary of the judicial district or town wherein the accused is being tried or so near thereto as to render it doubtful in which town or judicial district the offense was committed. No provision of this section shall impair the right of the accused to obtain a change of venue.”

       “[General Statutes] Sec. 53a-91. definitions. The following definitions are applicable to this part: (1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception . . . .”


author: Santaniello, J.

text:
    State of Connecticut v. Van Harris
    (11603)
    Peteks, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued November 7
    decision released December 24, 1985

      Monte P. Radler, special public defender, for the appellant (defendant).

      Christopher Malany, special assistant state’s attorney, with whom, on the brief, were John M. Bailey,
      state’s attorney, and Thomas P. Miaño and CarlSchuman, assistant state’s attorneys, for the appellee (state).
   Santaniello, J.

After a jury trial, the defendant, Van Harris, was found guilty of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1) and of being an accessory to robbery in the second degree in violation of General Statutes §§ 53a-135 (a) (1) and 53a-8. In subsequent proceedings, the defendant was also found to be a persistent felony offender under General Statutes (Rev. to 1979) § 53a-40 (b). He was sentenced to an effective term of not less than nine nor more than eighteen years. On appeal he claims that: (1) there was insufficient evidence to support his conviction of robbery in the second degree as an accessory; (2) under § 53a-135 (a) (1) and the facts of this case he could not be convicted as an “accessory”; (3) the jury could not consistently have found him both “guilty as an accessory” and “not guilty as a principal” of robbery in the second degree; and (4) he was erroneously tried as a persistent felony offender under the version of § 53a-40 (b) in effect before July 1, 1981. We find no error.

I

The defendant first claims that there was insufficient evidence to find him liable as an accessory to robbery in the second degree. Under General Statutes § 53a-8, a person may be prosecuted and punished as if a principal offender when, “acting with the mental state required for the commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . .” The defendant argues that he did not intentionally aid or otherwise further the commission of robbery in the second degree. In addressing his claim, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). In finding guilt beyond a reasonable doubt, the jury is free to draw reasonable, logical inferences from the facts proved. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984).

The jury in this case could reasonably have found the following. The defendant and a male companion pulled into a gas station in South Windsor at approximately 12 p.m. on October 20,1980. One of the station attendants, Lois Hendricks, filled the defendant’s gas tank at his request. The defendant asked her if they accepted travelers checks and she said that they did. Hendricks and the defendant then went inside to the station’s office. He handed her the supposed travelers check, which was in reality a money order, and she tried to verify its validity by calling a telephone number listed on the back of the instrument. Meanwhile, the other station attendant on duty, Robert McNamara, came into the office and sat down. The defendant’s companion also came into the office and stood in the doorway.

Hendricks was unable to verify the money order after fifteen to twenty minutes and refused to cash it. The defendant became annoyed and demanded that Hendricks do something about it. She refused and threatened to call the police. The defendant at that point became openly hostile and tried to grab the money order from Hendricks. The defendant’s companion moved from the doorway, lunged at Hendricks and ripped a roll of money from one of her shirt pockets. McNamara got up to come to her aid but was attacked by the defendant’s friend. The defendant moved toward Hendricks and hemmed her in behind a counter. The defendant then ripped the phone from the wall. The defendant and his companion fled, punching Hendricks and pushing her into the counter as they left. The defendant drove the car out of the station while the other man sat on the back bumper and covered the license plate.

On these facts, the jury could reasonably have found that the defendant intentionally aided the robbery. The defendant, after he saw his friend take the money, moved toward Hendricks to prevent her from taking any action in retaliation. He ripped the phone from the wall to prevent her from calling the police. The defendant also hit Hendricks while fleeing and aided in making the getaway. The jury could reasonably have inferred from the defendant’s actions that he intended to aid and did in fact aid his companion in robbing Hendricks of the cash.

II

The defendant next claims that he should not have been charged as an accessory to robbery in the second degree. His argument begins with the premise that in order for anyone to be an “accessory” to robbery in the second degree, the “underlying crime” of robbery in the second degree must first be proved. Under General Statutes § 53a-135 (a) (1), he argues, there must be two “principals” involved before a crime is established. Thus, he claims that only when three or more people are involved can anyone be charged as an “accessory” to robbery in the second degree. Since there were only two people involved in this robbery, the defendant concludes that he could not be considered an “accessory.” We do not agree. The defendant has misunderstood the nature of the verdict and judgment against him, misconceived basic concepts of accessorial liability, and misconstrued the applicable statutes.

The defendant’s argument presupposes that there are two independent crimes involved here: the crime of robbery in the second degree and the crime of being an accessory to robbery in the second degree. But, “[tjhere is no such crime as ‘being an accessory’; the defendant was charged with [one] substantive offense .... The accessory statute merely provides alternate means by which a substantive crime may be committed.” State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985); see also State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971). The defendant was charged in a single count with robbery in the second degree under two alternate theories of liability: (1) that he actively used or threatened to use physical force upon another person for the purpose of preventing or overcoming resistance to the taking of property, action in itself a violation of General Statutes § 53a-135 (a) (1); or (2) that he intentionally aided another person in committing robbery in the second degree, also a violation of General Statutes § 53a-135 (a) (1) by means of the liability imposed by § 53a-8. The jury found the second theory persuasive and found the defendant guilty of violating General Statutes § 53a-135 (a) (1) because he intentionally aided in the commission of the robbery. There was no “underlying crime” involved, nor a crime of “being an accessory.” The defendant was charged with and later convicted of one single substantive crime, the crime of robbery in the second degree.

The defendant also attempts to draw a sharp distinction between principal and accessorial liability. This state, however, long ago adopted the rule that there is no practical significance in being labeled an “accessory” or a “principal” for the purpose of determining criminal responsibility. See General Statutes (1875 Rev.) tit. XX, c. XIII, part X; State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879). The modern approach “is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. Such is the view taken in the Model Penal Code, which provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) fails to make proper effort to prevent it.” LaFave & Scott, Criminal Law (1972) § 63, p. 501; see also Model Penal Code (1985) § 2.06, comment 6. Connecticut has taken the same approach through General Statutes § 53a-8. See State v. Baker, supra; State v. Raffone, supra. The defendant is incorrect, therefore, when he argues that his liability turns on whether he was found to be a “principal” or an “accessory.” Those labels are hollow; the only predicate for charging him with violating General Statutes § 53a-135 (a) (1) is direct involvement in the crime.

Further, the defendant has misconstrued the plain language of General Statutes § 53a-135 (a). Section 53a-135 (a) provides: “A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present . . . .” The defendant argues that someone must be charged as aiding the robbery in the capacity as a “principal” before anyone else can be charged with aiding the robbery as an “accessory” under General Statutes § 53a-8. This argument is without merit. The legislature would not have used the verb “aided” if it wanted to describe the “other person” in the statute as a “principal” party to the crime. Also, significantly, the commission formed by the legislature to revise the criminal statutes characterized the “other person” as an “accomplice” — the generic term used by the drafters of the Model Penal Code to connote liability without distinguishing between “principal” and “accessory.” See Commission to Revise the Criminal Statutes, comment to General Statutes (Rev. to 1971) § 53a-135; Model Penal Code (1985) § 2.06. The legislature clearly intended that any person aiding in the commission of the crime be punished for that crime regardless of the label or the number of accomplices.

III

The defendant also claims that the jury could not consistently have “convicted him under the accessory statute” and “acquitted him of the principal charge of robbery.” We disagree. Again, the defendant has misunderstood the nature of the charge against him and has misstated the law of accessorial liability. As explained above, the jury did not “acquit” him of the charge of robbery in the second degree. On the contrary, the jury found him guilty of violating General Statutes § 53a-135 (a) (1) by reason of the liability imposed on him through General Statutes § 53a-8. The jury merely selected from alternate theories of liability. He was found to be responsible for the crime because he intentionally aided in its commission. The jury’s conclusion was thus not inconsistent.

IV

The defendant’s fourth and final assignment of error is that he was erroneously prosecuted as a persistent felony offender under General Statutes (Rev. to 1979) § 53a-40 (b), the version of the statute in effect at the time of the robbery and forgery. He claims that Public Acts 1980, No. 80-442 (hereinafter the act), effective July 1, 1981, repealed the earlier version of § 53a-40, that his prosecution under the prior statute was void, and that he should have been tried, if at all, under the statute as amended. He also argues that the newer version demands a greater quantum of proof. We conclude that there is no support for the proposition that the legislature through the act intended to affect pending prosecutions. As a result, the defendant’s claim must fail.

The defendant was charged with being a “persistent felony offender” under General Statutes (Rev. to 1979) § 53a-40 (b). On October 20, 1980, the day the robbery and forgery took place, § 53a-40 (b) read as follows: “A persistent felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime.” Public Acts 1980, No. 80-442, reformulated much of § 53a-40. Subsection (d) was amended to read: “A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony; and (2) has, at separate times prior to the commission of the present felony, been twice convicted of a felony other than a class D felony.” Public Acts 1980, No. 80-442, § 12. The act by its own terms became effective July 1,1981. Public Acts 1980, No. 80-442, § 28. The defendant was brought to trial on February 23, 1982, and was found guilty of being a persistent felony offender on March 3, 1982. The act made no mention of its effect on pending prosecutions.

The defendant urges us to find implied in the act the legislative intent that all prosecutions under General Statutes § 53a-40 pending as of July 1, 1981, be void and that all defendants then facing charges under § 53a-40 be tried under the amended version of the statute. In order to accept the defendant’s argument, however, we would have to ignore the savings clause embodied in General Statutes § 54-194. Section 54-194 provides: “The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.” We must presume that the legislature was cognizant of the existence and effect of the savings clause when it passed Public Acts 1980, No. 80-442. See State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Doe v. Manson, 183 Conn. 183, 187, 438 A.2d 859 (1981). Therefore, we must also presume that the legislature did not intend the amendments to § 53a-40 to affect pending prosecutions.

There is no error.

In this opinion the other judges concurred.

       The defendant has not appealed his conviction of forgery in the second degree.
      General Statutes § 53a-135 provides: “(a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.
      “(b) Robbery in the second degree is a class C felony.”
      General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and published as if he were the principal offender.”

       General Statutes (Rev. to 1979) § 53a-40 (b) provides in pertinent part: “A persistent felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) and the prior conviction was for a crime other than those enumerated in subsection (a).”

       The defendant proffers the argument that he took the actions he did because of his forgery of the money order. The defendant, however, did not even take the forged instrument with him when he left. From this fact, the jury could have reasonably concluded that it was not the forgery which prompted his actions, but the robbery.

       In its comments, the commission stated: “Robbery in the second degree makes the presence of an accomplice an aggravating factor. The rationale is that the accomplice is equal to a person armed and therefore would generate a higher degree of fear in the victim. Robbery in the second degree is also aimed at circumstances where the actor or accomplice, although not armed with a deadly instrument, purports or represents to be so armed . . . .” (Emphasis added.) Commission to Revise the Criminal Statutes, comment to General Statutes (Rev. to 1971) § 53a-135.

       The judgment file states the following: “Said cause having been fully heard and committed to the jury, they by their verdict on March 2, 1982 find the said Van Harris guilty of Accessory to Robbery in the Second Degree and Forgery in the Second Degree.”

       We need not decide whether the state, if required to prosecute the defendant under the newer version of the statute, would have been required to make a greater showing. The defendant claims that he should have been tried under General Statutes (Rev. to 1981) § 53a-40 (d) which provides: “A persistent felony offender is a person who (1) stands convicted of a felony other than a class D felony; and (2) has, at separate times prior to the commission of the present felony, been twice convicted of a felony other than a class D felony.” The state, however, may have sought to prosecute the defendant under General Statutes (Rev. to 1981) § 53a-40 (b), a provision substantially similar to that under which the defendant was originally charged. Section 53a-40 (b), after July 1,1981, read in part: “A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime . . . .”


author: Dannehy, J.

text:
    State of Connecticut v. Leo Zach et al.
    (12197)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued November 8
    decision released December 24, 1985

      K. Wynne Bohonnon and R. William Bohonnon, with whom, on the brief, was David M. Bohonnon, for the defendants.

      Ernest J. Diette, Jr., assistant state’s attorney, with whom was Edward J. Leavitt, assistant state’s attorney, for the plaintiff.
   Dannehy, J.

The defendants are recreational boaters who received infractions complaints during the summer of 1982 for their alleged failure to comply with General Statutes (Rev. to 1981) § 15-142, as amended by Public Acts 1982, Nos. 82-283, 82-348, which provides for the registration of vessels operating in state waters. Thirty-seven cases have been consolidated for the purpose of obtaining a determination by this court of certain issues raised in the infractions complaints. The defendants challenge the constitutionality of General Statutes § 15-142, and thus the basis on which the infractions complaints were issued, by way of five questions reserved to us under Practice Book § 3133. For the reasons which follow, we find that the questions were improvidently reserved and remand these cases for trial.

We begin by outlining the statutory regulation scheme under which these infractions complaints were issued. Section 15-142 (a) of the General Statutes requires every vessel operating in Connecticut waters to display a valid registration number, issued by the state of Connecticut, another state or the United States. Vessels bearing a valid registration number issued by another state or the United States are expressly exempted from the Connecticut vessel registration numbering system. General Statutes (Rev. to 1981) § 15-143 (a) (6), as amended by Public Acts 1982, Nos. 82-283, 82-436, 82-472. Such vessels, however, if used in Connecticut waters for more than sixty days in any calendar year, must display a valid Connecticut registration decal. General Statutes § 15-142 (b). A registration number and a registration decal are obtained in the same manner. The registrant must file the proper application form and pay a registration fee to the commissioner of motor vehicles. General Statutes (Rev. to 1981) § 15-144 (a), as amended by Public Acts 1982, Nos. 82-283, 82-348, 82-436. The failure to display a proper registration number or decal in accordance with the statute is punishable by a fine of not less than $25 nor more than $200. General Statutes § 15-144 (h).

We reproduce in a footnote the stipulation of facts submitted by the parties. From the stipulation and additional information gleaned at oral argument, the following facts appear. All except five of the defendants are Connecticut residents. The vessels in question are pleasure craft owned by unspecified Delaware corporations of which some of the defendants are shareholders. None of the vessels lists a location in Connecticut as its home port. During the summer of 1982 the defendants at various times “chartered” the vessels from the Delaware corporations for weekend boating and fishing trips and other boating activities on Long Island Sound. The vessels in question are “federally documented,” i.e., registered and numbered under the laws of the United States. Although the vessels were used in Connecticut waters for more than sixty days during the summer of 1982, none of them bore a Connecticut registration decal as required by General Statutes § 15-142 (b), and each of the defendants was issued an infractions complaint for his or her operation of one of these vessels without the required decal. Some of the corporate owners attempted to obtain registration decals for their vessels by filing an application form and tendering the registration fee as provided in General Statutes § 15-144 (a). The commissioner of motor vehicles, however, refused to issue the decals because the owners had not paid the state use tax on the purchase price of the vessels. General Statutes (Rev. to 1981) § 12-411.

The five questions reserved to us are as follows: “(A) [Is General Statutes § 15-142] violative of the due process clause of the [United States] Constitution? (B) [Is General Statutes § 15-142] contrary to the established federal system of admiralty jurisdiction as embodied in the [United States] Constitution, statutes and case law; specifically the judiciary act of 1789? (C) [Is General Statutes § 15-142] violative of the precepts of the commerce clause of the [United States] Constitution? (D) [Is General Statutes § 15-142] violative of Article 1, Section 10, clause 3, of the [United States] Constitution which prohibits a state from imposing a tonnage tax? (E) Are federally documented vessels owned by foreign corporations homeported in other states having no connection with Connecticut liable for a sales or use tax in Connecticut?”

We begin with the observation that the reserved questions as phrased require us to pronounce upon the facial validity of General Statutes § 15-142. It is a settled rule of constitutional adjudication that a court will decide the constitutionality of a statute only as it applies to the particular facts at hand. State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985); State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980); Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975). A party who challenges the constitutionality of a statute must prove that the statute has adversely affected a protected interest “ ‘under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.’ Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966); State v. Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978); Gentile v. Altermatt, 169 Conn. 267, 307, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Kellems v. Brown, 163 Conn. 478, 483, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1972); Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968).” Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981).

This principle reflects the conviction that “under our constitutional system courts are not roving commissions assigned to pass judgment on the validity” of legislative enactments. Broaderick v. Oklahoma, 413 U.S. 601, 610-11, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). The effect of an answer in the affirmative to any one of the reserved questions would be to declare General Statutes § 15-142 unconstitutional in its entirety. The issue, however, as we must address it, is whether the statute has been unconstitutionally applied to these defendants. We are bound “ ‘never to anticipate a question of constitutional law in advance of the necessity of deciding it [and] never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); Secretary of the State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); State v. Madera, supra, 105. “A judicial holding that a legislative Act is unconstitutional is one of very grave concern. We ought not, and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: ‘It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the Act unless its invalidity is, in our judgment, beyond a reasonable doubt.’ Beach v. Bradstreet, 85 Conn. 344, 349, 82 Atl. 1030 [1912].” State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 205, 132 A. 561 (1926); Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984); Logan v. O’Neill, 187 Conn. 721, 729, 448 A.2d 1306 (1982); Walkinshaw v. O’Brien, 130 Conn. 122, 134, 32 A.2d 547 (1943).

These principles of constitutional jurisprudence are no less pertinent here merely because the issues have been presented by way of reservation. This court declared long ago that our reservation procedures do not “contemplate, and ought not to be construed to permit, that every question which a trial court may encounter .. . might be brought here at once upon its being either met or scented from afar . . . .” Hart v. Roberts, 80 Conn. 71, 74-75, 66 A. 1026 (1907). We recognized that such a practice might “inevitably result in this court being called upon to formulate principles of law which would never enter into the determination of a cause, to formulate such principles in an abstract form suited to more or less general application and not as related to a concrete state of facts and narrowed and simplified by such relation, to create a mass of dicta embodying statements of abstract general principles which might some day rise up to harass judicial action, and to unnecessarily multiply the number of appearances in this court which an action might have before final disposition was made of it.” Id., 75. We recently emphasized the importance of these “discretionary prudential concerns” to our determination of whether a reservation should be answered. State v. Sanabria, 192 Conn. 671, 684, 474 A.2d 760 (1984).

Therefore, we will not review the facial validity of General Statutes § 15-142, and the only question which remains is whether that statute has been constitutionally applied in the cases before us. That determination is dependent to an unusual degree on the facts and circumstances of the individual case. The facts of record in the present matter, however, are insufficient to afford a basis for resolution of the issues presented. It is only where the parties fully and fairly disclose all of the relevant information that we may perform the careful inquiry and thorough examination required of us in constitutional determinations. Beach v. Bradstreet, supra. We have frequently declined to hear reservations where the factual record was deficient. Wiegert v. Pequabuck Golf Club, Inc., 150 Conn. 387, 391, 190 A.2d 43 (1963); State v. Doe, 149 Conn. 216, 231, 178 A.2d 271 (1962); Carroll v. Socony-Vacuum Oil Co., 136 Conn. 49, 66, 68 A.2d 299 (1949); New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 217, 21 A.2d 383 (1941); Claffey v. Bergin, 121 Conn. 695, 696, 183 A. 16 (1936). On occasion we have summarily remanded a case for trial where the record was “insufficient to afford a basis for an answer to the reserved questions.” Doe v. Herrington, 191 Conn. 496, 466 A.2d 1 (1983). In such cases we have found that the questions “could be passed upon to much better advantage if the cause was tried and the facts fully developed.” Barr v. First Taxing District, 147 Conn. 221, 225, 158 A.2d 740 (1960); Greenwich Trust Co. v. Brixey, 117 Conn. 663, 664, 166 A. 918 (1933); see Maltbie, Conn. App. Proc. § 233. In the present matter, for the guidance of the parties and the trial court on remand, we briefly identify certain factual areas which we believe require further development. Our discussion is by no means exhaustive.

While the defendants purport to challenge the constitutionality of the vessel registration scheme provided in General Statutes § 15-141 et seq., and especially § 15-142 (b), their real complaint is with the attempted imposition of the state use tax upon the vessels in question. The commissioner of motor vehicles is presumably directed by some statute or agency regulation— inexplicably left unspecified by the parties—to withhold a vessel registration decal until proof is furnished that any applicable sales or use tax has been paid. See General Statutes § 12-430 (3). The parties are surely aware that this court will not speculate as to the statute upon which a constitutional ruling is sought. General Statutes § 15-144 (a) provides that “[a]ny owner desiring to obtain a vessel registration number or registration decal shall apply to the commissioner of motor vehicles and shall file evidence of ownership by affidavit or document. Upon receipt of an application in proper form and the numbering fee, the commissioner of motor vehicles shall assign a registration number or registration decal . . . .’’(Emphasis added.) According to the stipulation, the vessel owners followed these statutory procedures. As we understand General Statutes § 15-144 (a), the duty of the commissioner to issue a registration decal is ministerial. Since that statute is silent with respect to the use tax, the commissioner’s refusal to issue registration decals unless the tax has been paid must be premised on statutes or administrative regulations other than General Statutes § 15-144 (a). Therefore, on remand the parties should identify the statutes or administrative regulations under which the commissioner acts in requiring payment of the use tax before issuing a registration decal as directed by General Statutes § 15-144 (a). See, e.g., General Statutes § 12-430 (3). We further recommend that the parties ascertain whether there exist any applicable rules or administrative procedures within the department of motor vehicles whereby one might avoid liability for the use tax under given conditions. See, e.g., General Statutes § 12-430 (5); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 600-601, 362 A.2d 847 (1975).

As our discussion suggests, we consider the issue in these cases to be whether the state may constitutionally impose the use tax on these vessels under the circumstances present here. Since we have not been presented with sufficient information to ascertain what those circumstances are, we must remand these cases for trial. On remand we believe the parties should devote particular attention to the following matters.

The defendants claim that the vessels which they operated were engaged in “interstate commerce” and thus beyond the taxing authority of the state of Connecticut. We believe that more than a bald assertion is necessary to sustain the conclusion that these vessels were engaged in interstate commerce. We note that a use tax has been assessed upon a yacht which, although purchased in Delaware, was sailed repeatedly in Rhode Island waters. Randall v. Norberg, 121 R.I. 714, 720, 403 A.2d 240 (1979). The imposition of the Ohio use tax was upheld as applied to a vessel purchased in Florida, for use in Florida, which was docked in Ohio for two weeks for repairs and installation of new equipment. Louisville Title Agency v. Rosydar, 43 Ohio St. 2d 109, 330 N.E.2d 899 (1975); cf. Roberta, Inc. v. Inhabitants of Town of Southwest Harbor, 449 A.2d 1138 (Me. 1982). And in North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924 (Alaska 1979), the Alaska ad valorem property tax was applied to out-of-state commercial seagoing vessels trapped for five months in frozen coastal waters. We expect that on remand the parties will present the trial court with some precedential authority for their constitutional claims. See generally annot., 3 A.L.R.4th 837, 888.

If on remand it should be found that these vessels were, in fact, engaged in some form of interstate commerce, the defendants’ task would not yet be at an end. The United States Supreme Court has held that “a state tax is not per se invalid because it burdens interstate commerce since interstate commerce may constitutionally be made to pay its way.” Maryland v. Louisiana, 451 U.S. 725, 754, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981). If the state tax “is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State,” no impermissible burden on interstate commerce will be found. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977); see Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 166-67, 103 S. Ct. 2933, 77 L. Ed. 2d 545, reh. denied, 464 U.S. 909, 104 S. Ct. 265, 78 L. Ed. 2d 248 (1983); Commonwealth Edison Co. v. Montana, 453 U.S. 609, 622-24, 101 S. Ct. 2946, 69 L. Ed. 2d 884 (1981). The vessels in the present cases are owned by Delaware corporations about which we are told nothing except that some of the defendants are shareholders. Since the defendants claim that these vessels are engaged in interstate commerce, we believe it only reasonable, on remand, that inquiry be made into the business of their corporate owners. We note that the nexus between these vessels and the state of Connecticut does not depend entirely on the owners’ state of incorporation. Additional factual inquiry will be required on the subject of whether the use tax sought to be imposed in these cases was apportioned in relation to taxes paid in other states, if any; see General Statutes § 12-430 (5); whether the tax unfairly discriminates against interstate commerce, and whether the tax is fairly related to services provided by the state. See Commonwealth Edison Co. v. Montana, supra, 624. In short, the trial court should make the factual findings mandated in Complete Auto Transit, Inc. v. Brady, supra.

In order that these issues may be properly focused on remand, we draw attention to a final matter. The defendants in their brief rely extensively on the “home port doctrine” as a rule of state taxation. According to that doctrine, an oceangoing vessel is taxable only in the jurisdiction of its home port, and not in each jurisdiction through which it happens to pass. Hays v. Pacific Mail Steamship Co., 58 U.S. 596, 15 L. Ed. 254 (1855). Since Connecticut is not the home port of any of the vessels under consideration here, the defendants contend that Connecticut has no jurisdiction to assess the use tax against them.

In Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S. Ct. 1813, 60 L. Ed. 2d 336 (1979), the United States Supreme Court traced the development and demise of the “home port doctrine,” stating that “[t]his theory of taxation, of course, has fallen into desuetude, and . . . has yielded to a rule of fair apportionment among the States.” Id., 442. The issue in that case was whether a state may impose an apportioned ad valorem property tax on instrumentalities of commerce “that are owned, based, and registered abroad and that are used exclusively in international commerce . . . .” Id., 444. While concluding that the tax could not constitutionally be imposed on the foreign instrumentalities at issue, the court assumed that if the instrumentalities had been used in “purely interstate commerce, Complete Auto would apply and be satisfied, and our Commerce Clause inquiry would be at an end.” Id., 445. From this dicta we conclude that the “home port doctrine” as a rule of state taxation of vessels engaged exclusively in interstate commerce has been superseded by the apportionment rule in Complete Auto. Accord North Slope Borough v. Puget Sound Tug & Barge, supra. We recommend that the parties proceed accordingly.

We do not answer the reserved questions; these cases are remanded for further proceedings not inconsistent with this opinion.

No costs will be taxed to any party.

In this opinion the other judges concurred.

       The reserved questions are as follows:
      “A. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 violative of the due process clause of the U.S. Constitution?
      “B. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 contrary to the established federal system of admiralty jurisdiction as embodied in the U.S. Constitution, statutes and case law; specifically the judiciary act of 1789?
      “C. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 violative of the precepts of the commerce clause of the U.S. Constitution?
      “D. Are [Public Acts 1982,] No. 82-283 and [Public Acts 1982,] No. 82-348 violative of Article I, Section 10, clause 3, of the U.S. Constitution which prohibits a state from imposing a tonnage tax?
      “E. Are federally documented vessels owned by foreign corporations homeported in other states having no connection with Connecticut liable for a sales or use tax in Connecticut?”
      We note that Public Acts 1982, Nos. 82-283 and 82-348, are incorporated into various sections of General Statutes, title 15, especially §§ 15-142, 15-143 and 15-144. Although the parties have not amended the reservations, we assume that the specific statutory provision to which they refer is § 15-142 (b). See footnote 2, infra.

       “[General Statutes] Sec. 15-142. vessel numbering requirements. CERTAIN VESSELS REQUIRED TO DISPLAY REGISTRATION DECALS, (a) Every vessel upon the waters of this state shall be numbered, except as otherwise provided in this section and section 15-143. No person shall launch, moor or operate and no owner shall permit the launching, mooring or operation of any vessel unless (1) the owner holds a valid, effective certificate of number awarded by this state or by the United States or by another state pursuant to the provisions of the Federal Boat Safety Act of 1971 and the identification number set forth in such certificate is displayed on each side of such vessel at the bow, (2) the owner holds a valid marine document issued by the United States Coast Guard or (3) such vessel is otherwise not required to be numbered in this state under the provisions of said section 15-143.
      “(b) Each vessel with respect to which the owner holds a valid marine document issued by the United States Coast Guard, a valid certificate of number awarded by the United States pursuant to the provisions of the Federal Boat Safety Act of 1971 or a valid certificate of number awarded by another state, which vessel is used upon the waters of this state for more than sixty days in any calendar year, shall be required to display a Connecticut registration decal. No person shall launch, moor or operate and no owner shall permit the launching, mooring or operation of any such vessel unless (1) the owner holds a valid, effective certificate of registration awarded by this state and (2) the registration decal is displayed as directed by the commissioner of environmental protection.
      “(c) Violation of any provision of this section shall be an infraction.”
      “[General Statutes] Sec. 15-143. exceptions to numbering requirement. (a) Vessels of the following classes are not required to be numbered by this state ... (6) vessels principally used in another state for which valid, effective certificates of number were awarded by the United States or by such other state pursuant to the provisions of the Federal Boat Safety Act of 1971; provided, the owner of a vessel used in this state for more than sixty days in any calendar year shall be required to comply with the registration requirements in section 15-144 . . . .”

       “[General Statutes] Sec. 15-144. vessel registration number or REGISTRATION DECAL. SCHEDULE OF FEES PAYABLE TO COMMISSIONER OF motor VEHICLES, (a) Any owner desiring to obtain a vessel registration number or registration decal shall apply to the commissioner of motor vehicles and shall file evidence of ownership by affidavit or document. Upon receipt of an application in proper form and the numbering fee, the commissioner of motor vehicles shall assign a registration number or registration decal and provide the owner with a temporary certificate of number or temporary certificate of decal. The commissioner of motor vehicles shall issue two registration decals and a permanent certificate. A registration decal shall be displayed on each side of the vessel at the bow in a manner prescribed by the commissioner of environmental protection. The certificate shall state the name of the owner, his address, a description of the vessel, its hull identification number, the expiration date of the certificate and such other information as the commissioner of environmental protection may prescribe by regulations . . . .”

       “STIPULATION
      “The parties herein unite in requesting the Court to reserve the above entitled action for the advice of the Supreme Court upon the questions arising therein, and stipulate and agree as follows:
      “The facts upon which the questions arise are as follows:
      “1. Along the shores of Long Island Sound extending from Greenwich to Stonington there are numerous harbors in the navigable rivers and waters of Connecticut. At various harbors are scores of marinas and yacht clubs to service the needs of vessels in navigation.
      “2. During the course of a year thousands of vessels pass through the waters of Long Island Sound in navigation and interstate commerce using the facilities of the harbors and yacht clubs.
      “3. Long Island Sound and the harbors thereon are navigable waters of the United States some of which are within Connecticut or New York.
      “4. In navigating from port to port along or through Long Island Sound, vessels pass through navigable waters within the states of Connecticut and New York.

        “5. Throughout the summer months thousands of vessels ply these waters.
      “6. During the summer months many of these vessels’ operators engage mooring facilities at marinas or yacht clubs in Connecticut for a period in excess of 60 days.
      “7. Other vessels will ply the waters cruising from port to port being in waters of Connecticut for more than 60 days using the facilities of several different marinas or yacht clubs in Connecticut.
      “8. Yacht clubs and commercial marina operators, pursuant to the terms of P.A. NO. 82-283 and P.A. NO. 82-348 are required to keep records in reference to vessels which are not registered in Connecticut which use their facilities.
      “9. Agents of the D.E.P. and local police charged with the enforcement of P.A. NO. 82-283 and P.A. NO. 82-348, formed marina squads and visited various harbors, marinas, and yacht clubs checking vessels not registered in Connecticut.
      “10. The marina squads gave written notice to unregistered vessels and their operators to register pursuant to P.A. NO. 82-283 and P.A. NO. 82-348.
      “11. Some of the owners had applied to the Department of Motor Vehicles of the State of Connecticut to register under the Connecticut Motor Boat Registration Act and tendered the appropriate fee.
      “12. They were denied registration solely for the reason the applicant could not show proof of having paid a Connecticut Sales Tax or a Use Tax in the amount of 7V2% of the purchase price of the vessel, and for refusal to pay a Sales or Use Tax of 7V2% of the purchase price of the vessel to the Department of Revenue Services.
      “13. The State of Connecticut, through various of its agencies is attempting to enforce the provisions of P.A. NO. 82-283 and P.A. NO. 82-348.
      “14. Agents of the D.E.P., local police, and other enforcement agents have issued summonses to the defendants for operating unregistered vessels in violation of provisions P.A. NO. 82-283 and P.A. NO. 82-348 even though the vessels are documented under Title 46 USC 11.
      “15. Agents of the D.E.P., local police, and other enforcement agents have issued summonses to various defendants for failure to display a registration decal on the vessel after having been used on navigable waters in Connecticut for a total of more than sixty days within the calendar year.
      “16. The defendant Daniel Cowan is a resident and domiciliary of Albany, New York.
      “17. The defendant Dr. Leo Zach is a resident and domiciliary of New York, New York.
      “18. The defendant Herbert W. Owen is a resident and domiciliary of Key Largo, Florida.
      “19. The defendant Dale Phelon is a resident and domiciliary of East Longmeadow, Mass.
      “20. The defendant Richard Gandelman is a resident and domiciliary of Moreo, Florida.
      “21. All of the vessels are documented under Title 46 USC 11 with homeports of Wilmington, Delaware or Fort Lauderdale, Florida, or jurisdictions other than Connecticut.
      “22. At the time of the alleged violation of the Connecticut Motor Boat Registration Act, (P.A. NO. 82-283 and P.A. NO. 82-348) each defendant was operating a vessel documented under 46 USC 11 in navigable waters of the United States and Connecticut.
      “23. Each of the vessels which each of the defendants was operating on the date of their arrest for a violation of P.A. NO. 82-283 and P.A. NO. 82-348 was owned by a Delaware Corporation, from which they were chartered.
      “24. Each vessel was and continues to be validly documented and registered pursuant to 46 USC 11 (The Shipping and Registry Recording Act) with a homeport of Wilmington, Delaware or Fort Lauderdale, Florida, or a jurisdiction other than Connecticut and in interstate commerce.
      “25. Each of the vessels involved had been on navigable waters of the United States within the State of Connecticut for a total of 60 days within the calendar year of 1982 and in interstate commerce.
      “26. Each of the vessels had been purchased by a Delaware corporation which had taken delivery of the vessel in a state other than Connecticut.
      “27. Other than being in interstate commerce the Delaware Corporations owning the vessel which the defendants operated had no connection with Connecticut and have not qualified to do business in Connecticut.
      “28. The other individual defendants are domiciliaries of Connecticut >)

       According to the stipulation, the vessels in question are registered under 46 U.S.C. § 11, which was repealed by Public Law No. 96-594, title 1, § 127, 94 Stat. 3459 (1980). We can only assume that these vessels are now registered under 46 U.S.C.A. § 12101 et seq. (1983). Since the defendants claim, in part, that General Statutes § 15-142 is “contrary to the established federal system of admiralty jurisdiction”; see footnote 1, supra, question “B”; we believe it appropriate on remand that they introduce into evidence the documents and federal statutes pertaining to the registry of these vessels. Only then may their claim under the supremacy clause be properly evaluated.

       “ [General Statutes] Sec. 12-411. the use tax. (1) imposition and bate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state at the rate of seven and one-half per cent of the sales price of the property, and in lieu of said rate of seven and one-half per cent at the rate of three and one-half per cent with respect to the rendering of any service described in subdivision (i) of subsection (2) of section 12-407.
      “(2) liability foe tax. Every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer is liable for the tax. His liability is not extinguished until the tax has been paid to this state, except that a receipt from a retailer engaged in business in this state or from a retailer who is authorized by the commissioner, under such regulations as he may prescribe, to collect the tax and who is, for the purposes of this chapter relating to the use tax, regarded as a retailer engaged in business in this state, given to the purchaser pursuant to subsection (3) of this section is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers. . . .”

       This statement is especially trae with respect to the first four questions reserved to us. We find the fifth question particularly inappropriate for a different reason. The fifth question is: “Are federally documented vessels owned by foreign corporations homeported in other states having no connection with Connecticut liable for a sales or use tax in Connecticut?” (Emphasis added.) It should be quite obvious that items of personalty having no connection with this state are not subject to the use tax. Stetson v. Sullivan, 152 Conn. 649, 653-54, 211 A.2d 685 (1965). The question as phrased assumes its conclusion. The connection or nexus between these vessels, their corporate owners and the state of Connecticut is the precise fact at issue in this case. Therefore, this question is not, in our opinion, “reasonably certain to enter into the decision of the case” as required by Practice Book § 3133, and we do not answer it.

       General Statutes § 12-430 (3) provides: “(3) evidence op tax on motor vehicles, boats and snowmobiles. Each person before obtaining an original or transferral registration for a motor vehicle, boat or snowmobile in this state shall furnish evidence that any tax due thereon pursuant to the provisions of this chapter has been paid in accordance with regulations prescribed by the commissioner of revenue services, and on forms approved by the commissioner of revenue services and the motor vehicle commissioner. The motor vehicle commissioner shall, upon the request of the commissioner of revenue services, after hearing by the commissioner of revenue services, suspend or revoke a motor vehicle, boat or snowmobile registration of any person who fails to pay any tax due in connection with the sale, storage, use or other consumption of such motor vehicle, boat or snowmobile pursuant to the provisions of this chapter.”

       General Statutes § 12-430 (5) provides: “(5) payment of sales or use tax to another STATE. If any service or article of tangible personal property has already been subjected to a sales or use tax by any other state or political subdivision therof and payment made thereon in respect to its sale or use in an amount less than the tax imposed by this chapter, the provisions of this chapter shall apply, but at a rate measured by the difference, only, between the rate herein fixed and the rate by which the previous tax upon the sale or use was computed. If such tax imposed in such other state or political subdivision thereof is equivalent to or in excess of the rate imposed under this chapter at the time of such sale or use, then no tax shall be due on such article.”

       For example, if it should appear that these vessels were kept in Connecticut although nominally homeported in another taxing jurisdiction, this fact would be more relevant to imposition of the use tax than the fact of their ownership by a Delaware corporation. Our use tax is complimentary to the sales tax; Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 299, 57 A.2d 128 (1948); and by its terms applies, irrespective of residency, to “[ejvery person storing, accepting, consuming or otherwise using in this state . . . tangible personal property purchased from a retailer . . . .” General Statutes § 12-411 (2). The relevant inquiry thus concerns the use of the vessels in Connecticut and not their place of purchase, home port, or the residency of their corporate owners.


text:
    The DeFonce Construction Corporation v. State of Connecticut
    (12595)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued November 14
    decision released December 24, 1985

      Martin F. Wolf and Carolyn K. Longstreth, for the appellant (plaintiff).

      William J. White, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (state).
   Santaniello, J.

The sole issue raised in this appeal is whether General Statutes § 4-61 waives the state’s sovereign immunity from claims arising under a contract for construction of a city bridge and city streets. The plaintiff, The DeFonce Construction Corporation (DeFonce), entered into a contract with the state for construction of a bridge and two streets in the city of Middletown. Alleging that the state had failed to perform certain duties under the contract, DeFonce brought suit to recover monetary damages from the state. The state moved to dismiss the complaint on the grounds that it was immune from suit, that it had not consented to the bringing of this action, and that the contract was not within the scope of General Statutes § 4-61. The trial court granted the motion and the plaintiff appealed. We find no error.

The work done by the plaintiff was part of a federal program to aid urban development. The contract was entered into by the state pursuant to General Statutes § 13a-98i, which authorizes the state department of transportation to accept federal grants and to spend the funds on road improvement projects. Middletown requested the aid, agreed to maintain the improvements, and agreed to reimburse the state for any costs not covered by the federal program.

The plaintiff argues on appeal that General Statutes § 4-61 waived the state’s sovereign immunity from suit under this contract. General Statutes § 4-61 provides: “Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, repair or alteration of any state highway, bridge, building or other public works may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for the judicial district of Hartford-New Britain for the purpose of having such claims determined. . . . ” (Emphasis added.) The plaintiff claims that its contract was within the scope of the statute because it involved “public works.” Essentially, it argues that the adjective “state” does not modify “public works” and that the construction under the contract could have been on a city bridge or street and still be within the reach of the statute. The plaintiff points to the statute’s plain language and legislative history in support of its statutory interpretation.

“ ‘It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature.’ State v. Campbell, 180 Conn. 557, 561, 429 A.2d 960 (1980); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. In construing a statute, this court will consider its plain language, its legislative history, its purpose and the circumstances surrounding its enactment. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Dukes v. Durante, 192 Conn. 207, 214-15, 471 A.2d 1368 (1984).” State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985). “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . . ” Peck v. Jacquemin, supra, 66, quoting Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 355-56, 402 A.2d 332 (1978). “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . . ” General Statutes § 1-1 (a). We cannot speculate as to what the legislature meant to say, we can only give effect to what it did in fact say. Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975).

It is well established that statutes in derogation of the state’s immunity from suit should be strictly construed so that the state’s sovereignty may not be undermined. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 355-56, 422 A.2d 268 (1979); Spring v. Constantino, 168 Conn. 563, 570-71, 362 A.2d 871 (1975); 2A Sutherland, supra, § 58.04. “Under that rule of construction, the plaintiff must prove . . . that there is a precise fit between the narrowly drawn reach of the relevant statute, § 4-61, and the contractual language upon which the plaintiff depends. . . . ” Berger, Lehman Associates, Inc. v. State, supra, 356.

Here, the plaintiff entered into a contract with the state for construction work, but the contract did not call for the type of work encompassed within the scope of § 4-61. The wording of the statute is very specific as to which contracts come within its reach: “for the design, construction, repair or alteration of any state highway, bridge, building or other public works . . . .” (Emphasis added.) The phrase “any state” modifies each of the nouns in the succeeding series, including “public works.” See Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980). In short, the statute requires the contract to call for construction of a state road, bridge or other facility in order for the state’s sovereign immunity to be waived as to claims under the contract. The plaintiff’s contract, being for the construction of city streets and a city bridge, is not within the operation of the statute.

The plaintiff argues that the legislative history of General Statutes § 4-61 supports its position. The legislative history of the statute, however, does not reveal any intention on the part of the legislature to waive claims on contracts involving nonstate facilities. The section was enacted in 1957 because of the large number of claims against the state arising out of the construction of state highways at the time. 7 S. Proc., Pt. 3, 1957 Sess., p. 1636. The legislature wanted to reduce the number of petitions for permission to sue the state that it received involving suits over state construction contracts. 7 H. R. Proc., Pt. 4, 1957 Sess., p. 1937. The legislative history makes no mention of contracts involving nonstate facilities. In the absence of evidence of legislative intent to waive its immunity in cases such as this, we presume that the legislature meant to exclude such contracts from the operation of the statute.

The plaintiff has not demonstrated that its contract comes within the “narrowly drawn reach” of § 4-61. See Berger, Lehman Associates, Inc. v. State, supra. Thus, the trial court was correct in concluding that § 4-61 did not waive the state’s immunity from suit under this contract. The plaintiff’s suit against the state was therefore properly dismissed.

There is no error.

In this opinion the other judges concurred.

         On appeal, the plaintiff raised four additional claims of error: (1) that sovereign immunity was not a defense available to the state because the city of Middletown was obligated to reimburse the state for any judgment against it; (2) that General Statutes § 4-61, as applied by the trial court, denied the plaintiff its right to equal protection and substantive due process; (3) that the state should be equitably estopped from raising the defense of sovereign immunity; and (4) that the legislature impliedly consented to suit under this contract. The plaintiff, through counsel, conceded at oral argument that these issues were not raised below. We have said many times that only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. See, e.g., State v. Tyler-Barcomb, 197 Conn. 666, 672, 500 A.2d 1324 (1985). Because the plaintiff has not raised any exceptional circumstances to warrant review of these claims, we will not address their merits.

         The plaintiff makes no argument that the bridge and streets here were state owned. The plaintiff stated in its brief that the work under the contract was “to be done on two streets and a bridge located in and maintained by the City of Middletown.” From this statement we infer that the plaintiff concedes that the project here involved a “city” bridge and “city” streets, and not “state” facilities. Ordinarily, a road, bridge or other facility is considered a “state” road, bridge or facility only if the state owns or maintains it. See General Statutes §§ 13a-16, 13a-20 (g).