text:
    State of Connecticut v. William Ruffin
    (13185)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued February 4
    decision released March 29, 1988

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, was Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Glass, J.

After a trial by jury, the defendant, William Ruffin, was found guilty of the crime of murder in violation of General Statutes § 53a-54a. In this appeal from the judgment rendered in accordance with the verdict, the defendant claims that the trial court erred in: (1) excluding defense evidence relevant to proving the absence of motive; and (2) excluding on hearsay grounds evidence offered to show the defendant’s state of mind on the evening of the shooting. We find no error.

The jury could reasonably have found that on November 11, 1985, the victim had been living in the rear first floor apartment of a house located on Edgewood Street in Hartford. The victim, referred to at the trial by his nickname “Creeper,” was living with Julianne M., her three children, her sixteen year old niece and her niece’s infant son. The group had been living in the Edgewood Street apartment for about one month.

At about 10:30 p.m., the victim was watching television with the members of the household in the living room. The defendant knocked on the door and was admitted into the apartment. Julianne was seated by the front door of the living room and the left side of her chair faced the doorway. Creeper, dressed only in blue jeans, was lying on the couch. The defendant walked over to the couch and sat on a nearby radiator. He asked Creeper what was happening and the two men went into the kitchen for about five minutes. Julianne heard the defendant ask Creeper if he was going out and Creeper responded that he “wasn’t going anywhere.” As the men left the kitchen the defendant told Creeper, “You want to be home with these skunky bitches, then I’ll leave you home.”

The defendant then walked to the front door with Creeper following him. As he was going out the front door the defendant said that his name was Billy Ruffin and that he was the “magic man.” The hallway light was not working. As the defendant reached the banister at the other end of the hallway, Creeper was just entering the hallway from the apartment. The defendant pulled a gun from inside his jacket and started shooting. The first shot hit Creeper on the top of his head, the second shot hit him in the abdomen and also grazed Julianne’s back. Creeper fell to the floor face up. The defendant ran out the door and up the street. He then went to a friend’s apartment on Sigourney Street, and then to East Hartford where he stayed for a few days.

Later on the evening of the crime, the defendant called Julianne and asked her what was going on. She told him that he knew what was going on and she asked him why he had shot Creeper. The defendant replied that he had not shot Creeper and he asked her, “Didn’t you see someone behind the door?” She replied, “No, I just only seen you when you pulled the gun out and started shooting it.”

I

The defendant’s first claim is that the trial court erred in excluding defense evidence relevant to proving the absence of a motive. During his direct examination the defendant was asked about an incident that he said had occurred several days prior to the shooting. The state objected on the ground of relevancy. In the absence of the jury the defendant made an offer of proof, stating that about three days before the shooting the victim had been in jail charged with assault and the defendant had arranged a bail bond for his release. The defendant argues that the evidence that he had arranged for the victim’s bail bond indicated the good relationship between them, and the unlikelihood of the defendant harming the victim.

We have stated that because “[m]otive is not an element of the crime charged . . . the state is under no obligation to show a motive of the accused to commit the crime charged. State v. Rathbun, 74 Conn. 524, 529, 51 A. 540 [1902]. ‘ “ Proof of motive is never necessary to support a conclusion of guilt otherwise sufficiently established, however significant its presence or absence, or its sufficiency, may be as bearing upon the issue of guilt or innocence.” State v. Pisano, 107 Conn. 630, 632, 141 A. 660 [1928].’ State v. Guilfoyle, 109 Conn. 124, 140, 145 A. 761 [1929]. The presence or absence of motive, however, is a circumstance to be weighed with other evidence for the jury to consider. State v. Rathbun, supra.” State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975).

The defendant argues that the excluded testimony would have shown the friendship and good relations existing between the defendant and the victim, leading to an inference that the defendant had not shot the victim because he had no motive to do so. Our review of the record, however, reveals that substantial testimony had already been presented demonstrating that friendly relations existed between the defendant and the victim. Four witnesses testified that the defendant and the victim were friends. Three witnesses testified that the defendant had frequently stayed at the victim’s apartment. Finally, the defendant testified that he and the victim were good friends and that they frequently stayed at each other’s apartments. Thus, evidence indicating a lack of motive had been presented to the jury, and the additional evidence proffered by the defendant was cumulative. The trial court did not abuse its discretion in excluding the proffered testimony.

The defendant also argues that the exclusion of the “motive” testimony deprived him of his right to testify in his own defense, in violation of his rights guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution. The defendant acknowledges that he did not raise this claim at trial, or in his initial brief, but seeks Evans review of this claim. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “ ‘Generally, however, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.’ United States ex rel. Bibbs v. Twomey, [506 F.2d 1220, 1222 (7th Cir. 1974)]; Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960).” State v. Periere, 186 Conn. 599, 611, 442 A.2d 1345 (1982). The record does not indicate that the exclusion of the “motive” testimony resulted in a denial of fundamental fairness or the denial of any specific constitutional right of the defendant. This claim was not properly preserved in the court below and because no constitutional right is implicated, we decline to review it on appeal.

II

The defendant’s second claim is that the trial court erred in excluding, on hearsay grounds, evidence offered to show the defendant’s state of mind on the evening of the shooting. In an offer of proof made outside of the jury’s presence, the defendant testified that about three weeks or one month before the shooting, in his presence, James Cameron had threatened the victim’s life with the words “Get ready for guerrilla warfare.” The defendant also testified that approximately one week before the shooting, someone had “shot up the house” and that that incident caused the defendant to believe that Cameron was following through on his threat. He testified further that “I was thinking that maybe I have something to do with all of these problems that was coming out,” and as a result, “I told Creeper that I was going to pull out, that I was going back up to Homestead.” The defendant argues that the excluded testimony was not being offered to show or imply that someone else shot the victim, but rather to show his state of mind and his reasons for leaving the victim’s apartment. The state concedes that the testimony was not hearsay, but argues that the trial court properly excluded the testimony because it was cumulative and irrelevant.

We note that “[w]here the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); see also State v. Vincent, 194 Conn. 198, 204 n.8, 479 A.2d 237 (1984); State v. Assuntino, 180 Conn. 345, 353, 429 A.2d 900 (1980). We have stated that “[o]ut-of-court statements to a person are admissible to show his state of mind where his mental state is relevant. State v. Brokaw, 183 Conn. 29, 32, 438 A.2d 815 (1981); Zenik v. O'Brien, 137 Conn. 592, 598, 79 A.2d 769 (1951).” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988). “ 'It is a reasonable exercise of judicial discretion to exclude questions which would introduce issues foreign to the case; State v. Dortch, 139 Conn. 317, 325, 93 A.2d 490 [1952]; or evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473 [1964].’ State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83 (1969). We have reiterated that evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).” State v. Talton, 197 Conn. 280, 284-85, 497 A.2d 35 (1985).

The record does not support a claim that the defendant’s state of mind was relevant. Other than the defendant’s bald assertion that about three weeks before the shooting he had heard Cameron utter the threatening words, the record does not support a claim that the defendant’s state of mind was at issue. The record does not identify Cameron nor does it indicate Cameron’s relationship with the victim or the defendant. In his offer of proof the defendant set forth no evidence that he saw Cameron at the scene of the shooting. We are unable to discern from the record how alleged prior threats by Cameron could possibly have affected the defendant’s state of mind on the night of the crime and cause him to flee from the scene of the crime, and remain away from his apartment for approximately two days. We agree with the state that the defendant’s state of mind evidence was irrelevant, and hold that the trial court did not err in excluding this evidence.

Finally, the defendant claims that the admission of the excluded testimony was integral to his defense because the key issue in the trial was the eyewitnesses’ identification of the defendant rather than the eyewitnesses’ credibility. Careful review of the record, however, reveals that the evidence of the identification of the defendant was substantial. Particularly significant is the eyewitness testimony of Julianne who had known the defendant for several years. The defendant on many occasions had visited and lived at the home that Julianne shared with the victim. Julianne stated that as the defendant left the apartment he identified himself and said that he was the “magic man.” Furthermore, there is no indication in the record that she was equivocal at any time regarding her testimony. In fact, she accused the defendant of shooting the victim when he called her on the night of the crime. Moreover, three other witnesses who testified about the crime knew the defendant. One witness heard the gunshots, saw the defendant in the hallway with a black gun, and watched him run away. Two witnesses saw the defendant running away immediately after they heard the gunshots. One of these witnesses saw a black gun in the defendant’s hand as he ran away. The outcome of the trial depended upon the jury’s perception of the credibility of the witnesses and not upon their identification of the defendant.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. Murder defined. Affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of the person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

         In Evans, we held that we would review a claim of error not properly preserved in the trial court under “exceptional circumstances.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). An exceptional circumstance “may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Donald L. Williamson
    (13248)
    (13249)
    Healey, Callahan, Glass, Covello and Hull, Js.

      Argued December 9, 1987
    decision released March 29, 1988

      James V. Guarino, with whom, on the brief, were Elizabeth N. Byrne and Susan P. Geenty, for the appellant in both cases (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee in both cases (state).
   Arthur H. Healey, J.

The defendant, Donald L. Williamson, appeals from three convictions arising out of two jury trials held in 1972. The defendant was convicted of the crime of rape in violation of General Statutes (1958 Rev.) § 53-238 in a jury trial arising out of an incident that occurred on June 21, 1971. He was sentenced to a term of imprisonment of not less than ten nor more than twenty years to run consecutively to a sentence that he was then serving in West Virginia. The defendant was thereafter convicted of the crimes of rape in the first degree in violation of General Statutes (Rev. to 1972) § 53a-72 and kidnapping in the second degree in violation of General Statutes § 53a-94 in a jury trial arising out of an incident that occurred on October 17, 1971. He was thereafter sentenced to a term of imprisonment of not less than ten years nor more than twenty years to run consecutively to both the West Virginia sentence and the sentence previously imposed for the earlier Connecticut rape conviction.

The defendant appealed all of these convictions to this court, but the appeals were not filed until October 25, 1978. Although this court ordered that briefs be filed by a certain date, the briefs were not filed and the appeals were dismissed. The defendant then filed a habeas corpus petition, alleging that he was denied effective assistance of appellate counsel. The court, Spada, J., granted the defendant’s petition and ordered the defendant to file his appeals by a certain date. Williamson v. Warden, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 273718 (September 22, 1986). The defendant then properly filed the two current appeals, which were argued together to this court.

The defendant raises a total of nine claims on appeal, including three that are common to both trials. Concerning the first rape conviction, the defendant claims that: (1) the trial court erred in admitting photographic identification of him; (2) the trial court erred in admitting rebuttal testimony of the complainant in the other case on appeal; (3) the trial court erred in sentencing him to a term of imprisonment consecutive to that imposed by a court of another jurisdiction; (4) the trial court erred in allowing him to appear in court dressed in prison clothes; and (5) he was denied his right to effective assistance of trial counsel. Concerning the later convictions for rape in the first degree and kidnapping in the second degree, the defendant claims that: (1) the trial court erred in failing to instruct the jury adequately regarding the elements of rape and kidnapping; (2) the trial court erred in sentencing him to a term of imprisonment consecutive to that imposed by a court of another jurisdiction; (3) the trial court erred in allowing him to appear in court dressed in prison clothes; and (4) he was denied his right to effective assistance of trial counsel. We find no error in either case.

I

The jury could reasonably have found the following facts regarding the defendant’s first conviction of rape. In Norwich, on June 21, 1971, at approximately 4 p.m., the victim, age 16, was invited by a friend to go swimming at another friend’s house. After changing into a bathing suit and jump suit, the victim proceeded alone on a path through the woods near the Stanton School en route to her friend’s house. As she emerged from the woods near the school, she was accosted by a man with a gun, later identified as the defendant, who grabbed her by the arm. She did not know him. The defendant held a gun to the victim’s back and ordered her to walk into the woods. He started kissing her and ordered her to remove her clothes. The defendant then had sexual intercourse with the victim. The defendant threatened to kill her if she told anyone about the incident. After the defendant left the scene, the victim proceeded to a neighbor’s house on Maple Street, recounted the incident, and was driven home. When the police first spoke to her at approximately 4:40 p.m., she was “quite upset [and] distraught.” Following a later identification of the defendant by the victim from photographs provided by the police, the defendant was arrested. Other facts will be related as they pertain to the specific claims that the defendant raises on this appeal.

A

The defendant’s first claim is that the trial court erred when it admitted, over defense counsel’s objection, the victim’s identification of the defendant from photographs shown to her by the police after the alleged rape. The defendant maintains that the photographic identification procedures used were impermissibly suggestive and unreliable when viewed in the totality of the circumstances.

A hearing held with respect to the motion to suppress this out-of-court identification revealed the following police procedure. On the evening of June 21, Officer John Grillo of the Norwich police department went to the victim’s home to interview her. Later that evening, he showed her a group of seven photographs, among which were one photograph of the defendant and one of his brother. The victim was unable to identify her attacker from these photographs. Two hours later, the victim’s father called the police and told them that his daughter would like to see the photographs again. She had “calmed down considerably by [that time].” The police showed her the same seven photographs and she chose two photographs, one of the defendant and one of his brother, Terry, as appearing “similar” to her attacker but she was “doubtful.” A member of the Norwich police told the victim that they would obtain more recent photographs of the defendant and his brother. The following morning, Officer James Dzialo showed the victim nine photographs, the original seven and two more recent photographs, one each of the defendant and his brother. This time the victim positively chose the more recent photograph of the defendant.

“A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). “In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad-hoc basis and is two-pronged: first it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987); see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). “Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes.” State v. Miller, supra. “An identification procedure is unnecessarily suggestive when it ‘ “give[s] rise to a very substantial likelihood of irreparable misidentification.” ’ State v. Fullwood, [supra, 243-44], quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Vaughn, 199 Conn. 557, 563, 508 A.2d 430 (1986).” State v. Williams, 203 Conn. 159, 174, 523 A.2d 1284 (1987).

The defendant attacks the photographic displays as impermissibly suggestive because of the recurrence of his photograph. He points out that photographs of him were shown to the victim on three different occasions. Moreover, of the nine photographs shown to the victim in the last array where she made a positive identification, two photographs were of the defendant and two were of the defendant’s brother. “Pictorial recurrence is suggestive because by emphasizing the defendant it increases the risk of misidentification. Simmons v. United States, [supra, 377]; State v. Harden, 175 Conn. 315, 320, 398 A.2d 1169 (1978).” State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981). The recurrent use of a defendant’s photograph in successive arrays, however, is not presumptively suggestive. United States v. Bowie, 515 F.2d 3, 7-8 (7th Cir. 1975); State v. Boucino, 199 Conn. 207, 219, 506 A.2d 125 (1986). For example, in State v. Hinton, 196 Conn. 289, 493 A.2d 836 (1985), this court held that when the initial identification is made with a high degree of assurance and the photograph in the second array is more recent than that used in the first, the procedure may not be suggestive. In State v. Boucino, supra, two witnesses were shown an array of twenty-four photographs, which included one of the defendant, and then were shown an array of sixteen photographs, including two of the defendant. This was held not to be “unnecessarily suggestive.” Id. In contrast, in State v. Ledbetter, supra, we held that the police procedures were impermissibly suggestive when those procedures included the recurrence of the defendant’s photograph in two successive displays of eight photographs where only the defendant’s photograph was repeated. In addition, Ledbetter included a later suggestive pretrial viewing of eight men that included the defendant. Id., 608-609.

In addition to the simple recurrence of the defendant’s photograph in successive arrays, other circumstances point to an unnecessarily suggestive identification procedure in this case. Not only did the photographs recur, but the police informed the -victim that they would return with more recent photographs of the two brothers whose photographs the victim had picked out because she “thought [they] might be her [attacker],” but about which she was “doubtful.” In State v. Austin, 195 Conn. 496, 502, 488 A.2d 1250 (1985), we expressed our disapproval of the disclosure by the police of what the photographic array would contain, since the probative value of the identification was in some degree diminished by any such foreknowledge of the witness. The arrays in this case also did not involve large numbers of photographs. See United States v. Mears, 614 F.2d 1175, 1177 (8th Cir. 1980) (defendant’s photograph occurred twice in array of seven photographs); State v. Ledbetter, supra. In addition, there was not the high degree of assurance in the initial identification that vitiated the suggestiveness of a second array with a more recent photograph such as occurred in State v. Hinton, supra, 292-93. We hold that the police photographic identification procedure in this case was impermissibly suggestive. By including recurring photographs of the defendant in comparatively small arrays and informing the victim that a more recent picture of the defendant and his brother, one of whom she said might have been her attacker, would be included in a subsequent array, the police emphasized the defendant’s photograph and rendered the identification procedure unnecessarily suggestive.

“The fact that a particular confrontation is impermissibly suggestive, however, does not automatically exclude the resulting identification. Because the linchpin in determining the admissibility of identification testimony is reliability, the central question is whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” State v. Ledbetter, supra, 614; see Manson v. Brathwaite, supra; Neil v. Biggers, supra 199. “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, supra, 199-200. “Against these factors is [weighed] the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, supra, 114; State v. Ledbetter, supra.

The reliability of the identification in the totality of the circumstances is supported by the factors listed above. We have recently noted that “[v]irtually no other crime offers the opportunity for observation of the perpetrator as the crime of rape. Grant v. State, 446 S.W.2d 620, 622 (Mo. 1969).” State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986). The victim had ample opportunity to observe her attacker since the assault occurred in daylight, lasted fifteen minutes, and she and the defendant were in close proximity throughout the incident. Although her attacker “put [the gun] away” before the actual attack upon her, she was “scared to death” because of the gun. The victim was, however, able to describe accurately his appearance including his hair length and color, the type and color of his clothing, and his build. The victim did describe her attacker as being five feet, seven inches tall, when the defendant was actually six feet, two inches tall. This court has recognized that height approximations are difficult when the witness is prone; State v. McKnight, 191 Conn. 564, 469 A.2d 397 (1983); as the victim was much of the time in this case. Moreover, “[w]e have consistently held that a ‘partial misdescription of the person being identified goes to the weight rather than to the admissibility of the identification.’ State v. Perez, [198 Conn. 68, 76, 502 A.2d 368 (1985)].” State v. Williams, supra, 178. “The weaknesses of identifications can be explored on cross-examination and during counsel’s final arguments to the jury.” State v. Kemp, 199 Conn. 473, 478, 507 A.2d 1387 (1986). The victim in this case was unable to identify the defendant in the first array of photographs that she was shown. Officer Grillo testified, however, that the victim had been very upset over the incident. It was the victim, on her own initiative, who called the police to her house for a second showing that night. There she could only say that the two pictures of the Williamson brothers resembled her attacker. At the final showing, however, she was certain that the more recent photograph of the defendant was her attacker. His more recent picture was chosen by her without question; she testified that she “positively” picked out the defendant’s more recent photograph. In making her identification of the defendant from the photographs, her memory of his “facial expression” was important and there was no question in her mind. This court has suggested that the use of a more recent photograph that is different from the previous one “militate[s] against a conclusion, that the ‘old photographs’ influenced her subsequent identifications.” State v. Miller, supra, 473. In this case, the photographs of the defendant and his brother shown earlier to the victim were four to five years old. The final factor is the time between the crime and confrontation. Here the positive identification was made on the morning following the assault. We conclude that, although the identification procedure employed by the police was unnecessarily suggestive, the out-of-court photographic identifications were sufficiently reliable under the “totality of the circumstances” to be admissible at trial.

B

The defendant’s next claim is that the trial court erred in admitting the rebuttal testimony of the complainant in the October 17, 1971 incident during his trial for the June 21, 1971 incident. The defendant relied on an alibi defense and testified in great detail on direct examination that, with the exception of one week in September, he had been in Ohio, West Virginia or Michigan from mid-May, 1971, until either the last week in October or early November, 1971. The rape was alleged to have occurred on June 21, 1971. The state extensively questioned the defendant on cross-examination, without objection, regarding his whereabouts during the time periods covered in his direct examination.

Thereafter, the state called the complainant in the October rape and kidnapping case in rebuttal. The defendant objected to her anticipated testimony, which was outlined in the absence of the jury, but the trial court overruled the objection and concluded that the testimony was proper on rebuttal. The trial court ruled, however, that her testimony be limited to her identification of the defendant and not get into collateral crimes except “only insofar as it’s necessary to just disprove the claimed alibi.” The witness, however, testified to the fact that the defendant had held her at gunpoint for a two hour period on October 17, a date well within the time that he maintained that he had been out of state. She mentioned the gun on direct examination, and she did so only once. Fairly viewed, the state’s question to her at that time did not call for the mention of a gun. Moreover, nothing was elicited from her by the state concerning a sexual assault. The defendant offered no objection, did not move to strike the answer, did not ask for a curative instruction at any time and did not move for a mistrial. In fact, defense counsel thereafter recalled the defendant to the stand to refute this witness’ testimony and, in doing so, proceeded to highlight her testimony in some detail.

On appeal, the defendant points to his exception at the trial that this witness not be permitted to testify. He points out that although the admission of rebuttal evidence is within the sound discretion of the court; see, e.g., State v. Nims, 180 Conn. 589, 599, 430 A.2d 1306 (1980); there was an abuse of that discretion in this case in admitting her testimony. He contends that the problem is one of “balancing the ‘actual relevancy’ of the ‘other crimes’ evidence given the issues and other evidence available to the state against its inflammatory effect on the jury.” In doing so, he argues the prejudicial effect of her “other crimes” testimony outweighed its probative value and, therefore, he has discharged his burden of proving harmful error. He claims that her testimony, although relevant, had only a limited probative effect on his alibi testimony. He also argues that the trial court itself, sua sponte, should have acted to strike her prejudicial testimony or have taken other curative action. We find no error on this claim.

“The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court.” State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); State v. Nims, supra. Although the defendant did object to her testifying at all, the trial court correctly permitted her to rebut the defendant’s alibi. “Ideally, rebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case . . . .” State v. Lisella, supra. When a defendant offers evidence in his defense, it is probative to offer evidence that contradicts his testimony. State v. Crowe, 174 Conn. 129, 132, 384 A.2d 340 (1977).

“As a general rule, evidence of other crimes is not admissible to prove the bad character or criminal tendencies of the defendant. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). Such evidence, however, may be admissible when a defendant testifies and his credibility is in issue. State v. Brown, 169 Conn. 692, 700-701, 364 A.2d 186 (1975). Even though the evidence may be relevant and material to the issue of the defendant’s credibility, the court is still required to conduct a balancing test to determine whether, the probative value of the evidence outweighed its prejudicial tendency. State v. Braman, 191 Conn. 670, 681, 469 A.2d 760 (1983). Ordinarily, ‘prejudicial material, such as unrelated misconduct of an accused, not having substantial probative value upon some issue in the case should be excluded.’ State v. Anonymous (83-FG), 190 Conn. 715, 730, 463 A.2d 533 (1983).” State v. McClendon, 199 Conn. 5, 13, 505 A.2d 685 (1986); State v. Onofrio, 179 Conn. 23, 28, 425 A.2d 560 (1979). “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); State v. Braman, supra, 676. Our review is limited to whether the trial court’s rulings exceeded the latitude accorded its discretion in such matters. See State v. Braman, supra. Every reasonable presumption should be given in favor of the trial court’s ruling. State v. Howard, supra.

The defendant’s direct examination opened the door to inquiry concerning his absences from Connecticut in general and the Norwich area in particular from May, 1971, through the end of October, 1971. This was done in detail although the state had not explored this entire time period in its case-in-chief with its witnesses. In producing this witness, the state had the right to attempt to show that the defendant had been untruthful as to his absence from Connecticut on October 17, 1971. If proven, this fact would bear on whether he was telling the truth concerning his whereabouts on June 21, 1971. “When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.” State v. Staples, 120 N.H. 278, 283, 415 A.2d 320 (1980), quoted in State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984). The defendant argues that while this witness’ testimony was relevant, it was only “marginally” so. We do not agree. Even if we assume, however, that this might be so, what we said in State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983), peculiarly applies in this case. In Ouellette, we said: “Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding light on the credibility of the witness’ direct testimony, ‘[t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony.’ McCormick, Evidence (2d Ed.) § 29; see Brown v. United States, 409 A.2d 1093, 1099 (D.C. App. 1979) (rape case).” State v. Ouellette, supra.

There was no mention of the alleged sexual assault upon the witness during her testimony. There was reference on her examination by the state that she was in the defendant’s presence for about two hours on October 17, 1971; this bore on the state’s claim of her ability to identify him. She did state that when she came out of the convenience store after buying some milk, the defendant came up to her car and “pointed a gun at [her].” There was no objection or motion to strike this “gun” portion of her answer, no motion for a mistrial or for any curative instruction. It was the defendant’s burden to act. He did not. He may have decided as a matter of trial strategy not to do so. “Under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.” Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). In the event that the jury viewed the witness’ two hour presence with the defendant as suggesting criminal behavior, we do not conclude that, under the circumstances, the trial court erred in permitting the evidence of that conduct to stand. The trial court had indicated the limitations of her proposed testimony and it had recognized correctly that there are circumstances where testimony concerning collateral crimes can come into evidence. Moreover, the trial court was never asked to take any “curative” steps during or after the witness’ testimony. Moreover, from its vantage point, the trial court could have decided that the just course to follow under the circumstances was the course that it took. State v. Glenn, supra. In any event, the defendant has not sustained his burden of demonstrating that the trial court abused its discretion in permitting this witness to testify as she did under the circumstances. Although “it is the duty of the trial court to prevent situations from arising during the trial which would prejudice the accused in the minds of the jury”; State v. Yates, 174 Conn. 16, 19, 381 A.2d 536 (1977); the trial court cannot be expected to do something that the defendant never requested that it do. See State v. Cosby, 6 Conn. App. 164, 174, 504 A.2d 1071 (1986).

C

The defendant next claims that the trial court erred in imposing a sentence consecutive to that imposed previously by another jurisdiction, here the state of West Virginia. The defendant first argues that the trial judge in this case was operating under the mistaken belief that there was no authority for imposing a concurrent sentence and that a consecutive sentence was mandatory. The defendant asserts that this is a violation of the right to equal protection guaranteed under the Connecticut constitution and the United States constitution. We are unable to discern from the defendant’s brief or from any inquiry of defendant’s counsel during oral argument as to where in the record this alleged mistaken belief of the trial court appears. We reject the defendant’s equal protection claim.

The defendant asks us to reassess the recent decision of the Appellate Court where that court held that a trial court had the authority to impose a sentence consecutive to the one imposed by a court in a different jurisdiction. State v. Walzer, 9 Conn. App. 365, 367, 518 A.2d 966 (1986). The Walzer court stated that “[a] state court’s inherent right to impose consecutive sentences has been recognized at common law in Connecticut and elsewhere.” Id.; see Redway v. Walker, 132 Conn. 300, 306, 43 A.2d 748 (1945) (“in the absence of statute, the determination whether two sentences to the same penal institution shall run concurrently or consecutively is an incident to the judicial function of imposing sentences upon a convict and is a matter for the determination of the court”). The Appellate Court then reasoned that the “power to order a consecutive sentence includes the authority to impose a sentence consecutive to the one imposed by a court in a different jurisdiction.” State v. Walzer, supra.

The defendant offers no cognizable reason why this court should prohibit the imposition of a sentence consecutive to that of another jurisdiction. Certain states’ statutes expressly authorize concurrent or consecutive sentences to a sentence from another jurisdiction. See, e.g., New York Penal Law § 70.25 (4) (McKinney 1987). There are some jurisdictions where courts have prohibited consecutive sentencing to sentences from other jurisdictions absent express statutory authority. See, e.g., Fewell v. Texas, 687 S.W.2d 807, 811 (Tex. App. 1985) (stacking of state sentence with federal sentence not permitted). A number of jurisdictions have held that courts have the power to impose consecutive sentences to sentences from foreign jurisdictions even without express statutory authorization. See, e.g., People v. Rutledge, 630 P.2d 606, 607 (Colo. 1981) (“it is within the discretionary authority of the trial court to impose a sentence to be served consecutively to another sentence”); State v. McKaughen, 700 P.2d 93, 94 (Idaho App. 1985) (the “inherent power to impose consecutive sentences includes the authority to impose a sentence consecutive to another sentence imposed by the court of a foreign jurisdiction”); State v. Smith, 633 S.W.2d 253, 254 (Mo. App. 1982); see 21 Am. Jur. 2d, Criminal Law § 553. The United States Supreme Court has recognized the “prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Williams v. New York, 337 U.S. 241, 247, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949); see also State v. McKaughen, supra (the issue of consecutive sentences concerns not where the offense occurred, but whether the nature of the crimes makes cumulative punishment appropriate). This philosophy is encompassed in the trial court’s well established right to impose a sentence consecutive to one imposed within the same jurisdiction. General Statutes § 53a-37; Redway, v. Walker, supra, 306. In a well reasoned Connecticut trial court decision; Wilson v. Warden, 26 Conn. Sup. 4, 209 A.2d 688 (1964); the court, Palmer, J., was confronted with a habeas petitioner who had been found guilty by a Connecticut court while he was serving a federal sentence in Pennsylvania and whose Connecticut sentence was to begin after he was released from federal custody. In Wilson, the petitioner argued that Connecticut could not require him to serve the Connecticut sentence after finishing his federal sentence. In doing so, he cited a Michigan case that held that where a person is serving a federal sentence, he may not receive a sentence in a state court to commence at the completion or expiration of the federal sentence in the absence of statutory authority. In rejecting this claim, the Wilson court said: “[The Michigan rule] is contrary to the long-established practice in this state, and also contrary to the general rule which sanctions the imposition of a sentence to commence upon release from service of a sentence in another jurisdiction. 24B C.J.S., Criminal Law § 1996 (6).” Wilson v. Warden, supra, 6-7; see Ponzi v. Fessenden, 258 U.S. 254, 42 S. Ct. 309, 66 L. Ed. 607 (1922); 4 F. Wharton, Criminal Procedure (12th Ed. Torcia) § 629, p. 272. There is no reason to deny the authority to impose consecutive sentences simply because the current sentence is being served in another jurisdiction.

D

The defendant’s next claim is that the trial court erred in permitting the defendant to be dressed in prison clothes during the trial. He bases this claim on several references at the trial as the man “dressed in khaki.” Although the defendant concedes that there was no objection made at trial, he asserts that the wearing of prison clothes is so prejudicial to the interests of the accused that the court committed reversible error in allowing the trial to proceed. The state contends that the record does not support the defendant’s claim that he was wearing identifiable prison clothing and furthermore, by not objecting, the defendant waived this constitutional violation.

The Fifth Circuit, prior to the trial of the cases before us, said: “A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.” Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir.), cert. denied, 404 U.S. 897, 92 S. Ct. 201, 30 L. Ed. 2d 174 (1971). The United States Supreme Court has since ruled that a defendant cannot be compelled to stand trial before a jury dressed in identifiable prison clothes. Estelle v. Williams, supra, 512-13. It also held, however, that “the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Id. This court has later concluded that a defendant may not be compelled to stand trial in prison clothes. State v. Yates, supra, 18 (“[i]f the defendant himself were placed on trial while dressed in a prison uniform, there would be error”). This policy is implemented by Practice Book § 967.

The state and the defendant disagree as to whether the defendant was, in fact, wearing identifiable prison clothes. During the trial, the defendant was identified as the man in the “khaki” clothes. The defendant’s brief simply assumes that this refers to prison clothing, but he conceded during oral argument that there is no evidence in the record concerning whether this constituted identifiable prison clothing. There is also no evidence concerning whether the defendant was compelled to wear these clothes even assuming that he was doing so. This dispute over the facts highlights the need for the objecting party to make the record reflect his objection, his reasons for that objection, the trial court’s ruling and an exception to that ruling. See Practice Book § 4061; State v. Tyler-Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Young, 191 Conn. 636, 653, 469 A.2d 1189 (1983). Although the possibility of a criminal defendant appearing before a jury dressed in prison clothes raises serious concerns about a fair trial, this court is unable to afford the defendant review or relief on the barren record before us. See, e.g., State v. Edwards, 201 Conn. 125, 159-60, 513 A.2d 669 (1986); State v. Tyler-Barcomh, supra. The issue of whether the failure to object constitutes a valid waiver also cannot be reached because it cannot be ascertained on this record whether the defendant was dressed in prison clothes at all.

E

The defendant’s final claim is that the defendant’s conviction should be reversed because he was denied effective assistance of counsel. Although the defendant concedes that this court has stated that “the issue of the adequacy of trial counsel is more properly pursued in a motion for new trial or on a petition for writ of habeas corpus than on direct appeal”; State v. Barber, 173 Conn. 153, 154-55, 376 A.2d 1108 (1977); he asks us to make an exception to the general rule. The state urges us to follow our recent policy of not hearing claims of ineffective assistance of counsel on direct appeal but to permit them to be raised in a habeas corpus proceeding. We agree with the state.

This court has maintained a consistent policy in recent years of refusing to hear claims of ineffective assistance of counsel on direct appeal. See, e.g., State v. McIver, 201 Conn. 559, 568-69, 518 A.2d 1368 (1986); State v. Pardo, 199 Conn. 354, 358, 507 A.2d 461 (1986); State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). In State v. Leecan, supra, we stated: “[W]e shall not review at this time even the portion of the defendant’s ineffective assistance claim that he contends is adequately supported by the record. . . . [W]e believe that his ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” Although the defendant claims otherwise, our policy is supported by the circumstances of this case. An evidentiary hearing where the defendant’s trial counsel can testify, for example, as to why no objections were made concerning the alleged prison clothes or why he did not move to strike the allegedly prejudicial answers from the state’s rebuttal witness, as well as other claims the defendant makes, is necessary to evaluate the defendant’s ineffective assistance claim. We decline to entertain that claim in this appeal.

II

The defendant also appeals from his subsequent conviction of the crimes of rape in the first degree and kidnapping in the second degree arising out of the incident on October 17, 1971. In that case, the jury could reasonably have found the following facts. The victim drove her car to a convenience store at 9:45 p.m. After returning to her car with her purchase, she was accosted by the defendant who displayed a gun. He forced the victim into the car and directed her to drive up a dirt road to a secluded area. There the defendant ordered her from the car, took off her clothes and forced her to have sexual intercourse. She was then ordered back into the car. The victim and the defendant drove on various streets and made numerous stops in the Norwich area according to the defendant’s directions. Eventually the defendant ordered her to return to the place where the attack had occurred. While the car was stopped, another car, later discovered to be a police car, approached and the defendant fled. After the victim identified the defendant through photographs, he was arrested. The defendant raises four claims of error arising from his conviction in this incident, including three that are identical to issues previously raised in his rape conviction discussed above.

A

The defendant asserts that the trial court’s charge to the jury regarding the elements of the rape and kidnapping charges was “confusing” and that “[i]t is error to fail to explain certain key words in a charge when a more detailed elaboration of their meanings should have been given.” His brief does not, however, point out what “key words” the trial court should have explained. The defendant also claims that since restraint of the person is involved in both rape in the first degree and kidnapping in the second degree, the trial court should have instructed the jury to determine whether a detention or restraint was merely incidental to the rape.

Before we examine the defendant’s claim of error, we note that the defendant made no requests to charge or took any exceptions to the jury charge. The defendant invokes the “plain error” doctrine, Practice Book § 4185, and also belatedly claimed at oral argument that review should be extended under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In the interest of justice, we will examine the court’s charge, delivered over fifteen years ago, to the extent that any error implicates a fundamental constitutional right. “A trial court’s failure to instruct on any of [the essential] elements warrants reversal regardless of whether the defendant objected at trial.” State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985).

The only possible fundamental constitutional right that the defendant appears to be asserting is that the elements of rape and kidnapping were not properly explained to the jury, resulting in convictions that violate the dictates of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), that every element of a crime must be proven beyond a reasonable doubt. See also State v. Harman, supra, 133-34. It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. “ ‘ “ If justice is to be done . . . it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime.’ United States v. Clark, 475 F.2d 240, 248 (2d Cir. [1973])” . . . . ’ State v. Kurvin, [186 Conn. 555, 561, 442 A.2d 1327 (1982)].” State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983); State v. Griffin, 175 Conn. 155, 163, 397 A.2d 89 (1978). The trial court read General Statutes § 53a-72, rape in the first degree, to the jury, defined key terms such as “sexual intercourse” and “forcible compulsion,” and instructed correctly on each essential element and later summarized each essential element. The trial court did the same for General Statutes § 53a-94, kidnapping in the second degree; it read the statute, defined key terms such as “abduct” and “restrain” and instructed correctly on each essential element of that crime and later summarized each essential element. Proper instructions were also given on consent and constancy of accusation. The trial court’s charge to the jury satisfied any constitutional concerns as to whether the jury had been adequately instructed on each element of the crimes charged.

The defendant, while he argues otherwise, concedes in his brief that Connecticut law does not prohibit a conviction for both rape in the first degree and kidnapping in the second degree even when the kidnapping was incidental to the crime of rape. See State v. Vass, 191 Conn. 604, 614-15, 469 A.2d 767 (1983). There we said that “if the state proves all the elements of kidnapping, including the specific intent to restrain, beyond a reasonable doubt, the defendant may be convicted of kidnapping in addition to another felony, even though the two offenses arose out of the same conduct.” Id. “[T]he question for the jury to decide is not whether the kidnapping was incidental to the rape but whether the evidence of intent to restrain is sufficient to support convictions for the two distinct offenses arising out of a single act.” State v. Vass, supra, 616 n.9. There was no error in the trial court’s jury instructions as claimed.

B

The defendant’s next claim is that the trial court erred in imposing a sentence to run consecutively to that previously imposed by a court of another jurisdiction. We have answered the identical claim above in part I, C, and that analysis controls this issue. We also note that, in this case, the trial court actually sentenced the defendant to a sentence consecutive to his previous Connecticut sentence, which in turn, was to run consecutively to the West Virginia sentence. Therefore, the issue framed by the defendant is not properly before us in this case since this sentence will run consecutively to whatever sentence the defendant served for his conviction of rape without regard to the sentence from out of state. The defendant concedes that the sentencing court in this case has the authority to make his second Connecticut sentence consecutive to the earlier Connecticut sentence.

C

The defendant’s next claim is that the trial court erred in allowing the defendant to appear at his trial dressed in prison clothes. In this case, the defendant also raised no objection at trial. The defendant in this case was referred to as the man in “khaki” only once. In any event, this claim has the same problems as the claim he made concerning his conviction for the rape of June 21, 1971, including whether the defendant was, in fact, wearing prison clothes, whether he was compelled to do so and why the defendant’s trial counsel never offered any objection. We follow our analysis of part I, D, and we are unable to afford the defendant any relief on this record.

D

The defendant’s final claim is that the defendant was denied effective assistance of counsel. As we decided in part I, E, of this opinion, this claim would be more properly addressed in a petition for habeas corpus. Accordingly, we decline to entertain it at this time.

We find no error in the conviction of rape arising out of the June 21, 1971 incident and the convictions of rape in the first degree and kidnapping in the second degree arising out of the incident on October 17, 1971.

In this opinion the other justices concurred.

       General Statutes (1958 Rev.) § 53-238 provides: “rape. Any person who commits the crime of rape upon any female shall be imprisoned in the State Prison not more than thirty years. Any person who carnally knows any female under the age of sixteen years shall be guilty of rape and shall be fined not more than one thousand dollars or imprisoned not more than thirty years or both. No female under the age of sixteen years shall be deemed capable of consenting to an act of intercourse.”

       General Statutes (Rev. to 1972) § 53a-72 provides: “rape in the first DEGREE: CLASS B FELONY, (a) A male is guilty of rape in the first degree when he engages in sexual intercourse with a female: (1) By forcible compulsion; or (2) who is incapable of consent by reason of being physically helpless; or (3) who is less than fourteen years of age.
      “(b) Rape in the first degree is a class B felony.”

       General Statutes § 53a-94 provides: “kidnapping in the second degree: class b felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.
      “(b) Kidnapping in the second degree is a class B felony.”

       In the case arising out of the incident of October 17, 1971, the defendant was sentenced to a term of imprisonment not less than ten nor more than twenty years on the rape count and to a term of not less than ten nor more than twenty years on the kidnapping count. These sentences were ordered to run concurrently.

       After the trial court denied the defendant’s objections to the photographic identification, the victim made an in-court identification of the defendant.
      Later in the state’s case, another witness testified that, on the day of the attack upon the victim, he had been washing a car with a neighbor that afternoon at a location about fifty yards from where the paved area between Stanton School and Maple Street joins the street. At that time, his attention was drawn to the victim, who was crying and screaming as she came out of the path near the school. She came directly to the house where the witness was washing the car. Shortly before this witness saw the victim “carrying on,” he had seen the defendant, whom he had known for “a few years,” come out of the same path as the victim.

       On rebuttal, the state called the victim in the second case to testify. At defense counsel’s request, the jury was excused and he objected to her testifying because she was the complainant in the October 17, 1971 charges against the defendant and because allowing her to testify in effect required the defendant to defend himself against the second rape charge in the first rape case. He said, however, that the state had already told him that the purpose of her testimony was as rebuttal to the defendant’s earlier testimony that on October 17, 1971, he had not been in Norwich. The state indicated to the court that if the defendant’s testimony as to his presence in Norwich on October 17, 1971, were false, it should be rebutted. When the court inquired how far the state intended to go in questioning the witness, the state indicated that it “should not inquire of her” about the alleged October 17, 1971 sexual assault upon her by the defendant as it did not think it' was necessary for the purpose for which her testimony was being offered.
      The state did, however, say that it thought it must inquire as to “the locations and times and places.” To the court’s inquiry whether this “is to rebut the alibi testimony— presumed alibi testimony,” the state replied, “Yes.” Defense counsel again objected. His objection was overruled and an exception was taken.
      The court then indicated that the witness’ testimony, as it understood it, “is limited to the fact that she saw [the defendant] in the jurisdiction at a certain time. Is that the instance to be proved in the area where he was?” The state replied, “Yes” and added that her testimony “would include” that she came out of a convenience store and the defendant “shoved a gun in her back and kidnapped her and took her off in [a car] and assaulted her, and was with her for a substantial period of time.” The court, nevertheless, said that while it was going to be “awkward,” it thought that “we can skip over and not put in testimony about the sexual assault. . . . ” Defense counsel noted that the defendant was nonetheless charged with a major crime. The court then indicated that the fact that another crime had been committed does “not necessarily . . . prevent . . . evidence from coming in if it’s necessary to prove a fact.” It immediately went on to say: “I think we ought to limit this to identification, and not get into collateral crimes, only insofar as it’s necessary to just disprove the claimed alibi.” The state agreed and defense counsel noted his exception.

        State v. Walzer, 9 Conn. App. 365, 518 A.2d 966 (1986), is not factually the same as the cases before us. In that case, the Connecticut court sentenced the defendant to a term of six years to run consecutively to an unrelated federal sentence that he was already serving.
      In Walzer, the defendant’s sole claim of error was that General Statutes § 53a-37 does not permit a sentence to run consecutively to an earlier sentence unless the earlier sentence was imposed by a “ ‘court of this state.’ ” Id., 366. He then argued that because the federal court is not a “court of this state,” there was no authority for the Connecticut court to sentence him as it did. The Walzer court then correctly held that § 53a-37 was not applicable to that case. Id., 367.

       Practice Book § 967 provides: “right of presence
      “The defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing, except as provided in Sec. 966. Whenever present, the defendant shall be seated where he can effectively consult with his counsel and can see and hear the proceedings. An incarcerated defendant or an incarcerated witness shall not be required during the course of a trial to appear in court in the distinctive attire of a prisoner or convict.”

       Practice Book § 4185 provides in part: “errors considered
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”


text:
    United Church of Christ v. Town of West Hartford
    (13127)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued January 12
    decision released March 29, 1988

      Michael J. O’Sullivan, with whom, on the brief, was Richard T. Stabnick, for the appellant (plaintiff).

      Marjorie S. Wilder, corporation counsel, for the appellee (defendant).
   Arthur H. Healey, J.

The plaintiff United Church of Christ was denied a local property tax exemption under General Statutes § 12-88 when the trial court found, on an appeal from the local board of tax review, that the land involved in its housing project in West Hartford was not being used exclusively for charitable purposes under General Statutes § 12-81 (7). The sole issue on this appeal is whether, on the facts found by the trial court, the plaintiff sustained its burden of proving that its housing project was being used exclusively for charitable purposes.

The town assessor of West Hartford placed certain housing units then constructed on the plaintiffs property on the tax list of October 1, 1982. The plaintiff church appealed to the board of tax review for the town of West Hartford, requesting a tax exemption on the ground that the property was being used exclusively for a charitable purpose. The board denied the petition and the plaintiff appealed to the Superior Court. Hon. Charles S. House, state trial referee, acting as the court, found that the property was not eligible for an exemption and dismissed the appeal. The plaintiff then appealed to the Appellate Court, which, with one judge dissenting, sustained the trial court’s decision. United Church of Christ v. West Hartford, 9 Conn. App. 448, 519 A.2d 1217 (1987). The plaintiff successfully petitioned for certification from this court and this appeal followed.

The trial court found the following facts which are not in dispute. The plaintiff, incorporated as a nonstock corporation in 1958, acquired approximately six acres of land on Flagg Road in West Hartford. It constructed a church building on two acres, leaving about four acres of the property unused, on which it paid property tax to the town of West Hartford. The plaintiff, perceiving a need for elderly housing in the community, created a committee in 1978 to make a feasibility study of the use of the land for such housing. In November, 1979, the congregation voted to approve the project. The plaintiff obtained a zoning change and proceeded to develop the four acres into an elderly housing project known as Hart Meadow Village (Hart Meadow). The plaintiff planned to construct sixteen residential units, each with two bedrooms and equipped with range, refrigerator, air conditioning, carpeting, garbage disposal and master television antenna. Grounds maintenance, project lighting and on-site parking were also included in the plans. It was anticipated that the project would be administered by Church Homes, Inc., as a subsidiary of its Avery Heights project on New Britain Avenue in Hartford. It was also planned that a full range of recreational, support and health services would be provided for the project’s occupants, including pastoral counseling provided by the church minister, support in arranging convalescent services, use of church facilities for cultural and recreational affairs and coordination of public and private transportation.

The plaintiff anticipated that 87 percent of the projected total cost of $1,212,483 would be funded by gifts, with the balance provided by a commercial loan to the church, which would hold title to all of the real estate. The “gifts” would consist of a one-time unrestricted payment of $73,000 by individual donors, each of whom would receive the privilege of occupying one housing unit as long as he or she was able to live there independently. The occupants would be charged a monthly maintenance fee of $350 per unit, with the only other requirement being that one of the occupants be at least sixty-two years of age. There would be no lease or written contract concerning the occupancy other than a letter from the church specifying the occupant’s right, privileges and commitments for the maintenance costs. When a unit was vacated, Church Homes, Inc., would choose another tenant, who would be able to occupy the unit under the same restrictions and subject to the same commitment to pay the maintenance fee but not the up-front charge of $73,000.

Six units had been completed and occupied at the time of trial and the remaining units were to be erected as the plaintiff received further donations for construction. At the hearing in the trial court, it was revealed that there had been discussions with town authorities about what would be done with the property if it were sold, but no understanding had ever been reached. The trial court found that “[i]t does not appear that any provision has been made for such a contingency or if the church ceases to function or decides to sell the property nor for any restriction against its sale.” There is no restriction to occupancy by reason of race, creed, color or church membership. In fact, most of the current occupants are not members of the plaintiff church. The trial court found that “it is significant that there is no restriction or limitation whatsoever upon the extent of the wealth or income of anyone selected for occupancy of the units.” The project is not limited to poor; sick, infirm or the low-income elderly. The trial court concluded that the lack of any financial qualification was of “critical significance” on the issue of charitable purpose.

After setting out the criteria for obtaining a tax exemption under General Statutes § 12-88, the trial court held that the plaintiff had failed to discharge its burden of proving that the property was used exclusively for charitable purposes. It pointed to the fact that there was nothing to indicate that (1) the project is not and will not be self-supporting, and (2) admission to those who can afford to pay for it will make it less likely that they would become burdens on society.

The Appellate Court affirmed the trial court decision. Although it recognized the modern trend of broadening the concept of charitable purpose as articulated in Camp Isabella Freedman of Connecticut, Inc. v.Canaan, 147 Conn. 510, 162 A.2d 700 (1960), the Appellate Court held that, in light of the fact that there are no limits on wealth or income and that initial tenants must pay a $73,000 up-front payment, “the claim that the plan is charitable is stretching the concept to the breaking point and beyond.” United Church of Christ v. West Hartford, supra, 456. The majority opinion also agreed with the trial court’s conclusion that the church had not proven that the project is not and will not be self-supporting. Using the proper standard of whether the decision was clearly erroneous in light of the evidence and pleadings in the record as a whole; Practice Book § 4061; the Appellate Court held that the trial court could reasonably and logically conclude as it did. Id., 459.

On appeal, the plaintiff claims that, on the facts found by the trial court, it has sustained its burden of proving that the Hart Meadow project was being used exclusively for charitable purposes. We disagree.

Under our statutes, there are three requirements for a tax exemption. The property must belong to or be held in a trust for an organization exempt from taxation under the provisions of General Statutes § 12-81; it must be held for one of the purposes stated in that statute’s list of exemptions; and it must produce no rent, profits or income. The trial court concluded that the plaintiff had failed to meet the exemption available in § 12-81 (7) for property used exclusively for charitable purposes.

A general description of the burden of proving a tax exemption was aptly articulated in Faith Center, Inc. v. Hartford, 39 Conn. Sup. 142, 473 A.2d 342 (1982), aff’d, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984), an analysis cited with approval in the Appellate Court opinion. That court said: “Certain general principles of law govern cases such as the present ones where a party claims that property is exempt from taxation. ‘ “It is a settled rule of law that statutes which exempt from taxation are to be strictly construed against the party claiming an exemption.” ’ Crescent Beach Assn. v. East Lyme, 170 Conn. 66, 71, 363 A.2d 1045 (1976); Wiegand v. Heffernan, 170 Conn. 567, 582, 368 A.2d 103 (1976); Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234 (1969). ‘Exemptions, no matter how meritorious, are of grace, and must be strictly construed. They embrace only what is strictly within their terms.’ Hartford v. Hartford Theological Seminary, 66 Conn. 475, 482-83, 34 A. 483 (1895); Woodstock v. The Retreat, Inc., 125 Conn. 52, 56, 3 A.2d 232 (1938). As the Supreme Court noted in Snyder v. Newtown, 147 Conn. 374, 386, 161 A.2d 770 (1960), appeal dismissed, 365 U.S. 299, 81 S. Ct. 692, 5 L. Ed. 2d 688 (1961): ‘Exemption from taxation is the equivalent of an appropriation of public funds, because the burden of the tax is lifted from the back of the potential taxpayer who is exempted and shifted to the backs of others. Lyman v. Adorno, 133 Conn. 511, 516, 52 A.2d 702 [1947]. The owners of tax-exempt property in the community derive the same benefits from government as other property owners but pay no property taxes for those benefits.’

“It is also well settled that the burden of proving entitlement to a claimed tax exemption rests upon the party claiming the exemption. Curly Construction Co. v. Darien, 147 Conn. 308, 160 A.2d 751 (1960); Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 154 A.2d 608 (1959); Cooley Chevrolet Co. v. West Haven, 146 Conn. 165, 148 A.2d 327 (1959); Forman Schools, Inc. v. Litchfield, 14 Conn. Sup. 444, rev’d on other grounds, 134 Conn. 1, 54 A.2d 710 (1947).” Faith Center, Inc. v. Hartford, supra, 153-54.

This court has recognized that the “definition of charitable uses and purposes has expanded with the advancement of civilization and the daily increasing needs of men.” Camp Isabella Freedman of Connecticut, Inc. v. Canaan, supra, 514. The Camp Isabella court continued: “It no longer is restricted to mere relief of the destitute or the giving of alms but comprehends activities, not in themselves self-supporting, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and more likely that they will become useful citizens. Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 752, 217 S.W.2d 489 [1949]. Charity embraces anything that tends to promote the well-doing and the well-being of social man. Ibid. An institution is charitable when its property and funds are devoted to such purposes as would support the creation of a valid charitable trust. Davie v. Rochester Cemetery Assn., 91 N.H. 494, 495, 23 A.2d 377 [1941].” Id., 514-15. Other jurisdictions have also recognized the increasingly broad definition of charitable purpose. See, e.g., Fredericka Home for the Aged v. County of San Diego, 35 Cal. 2d 789, 792-93, 221 P.2d 68 (1950); Oasis, Midwest Center for Human Potential v. Rosewell, 55 Ill. App. 3d 851, 858, 370 N.E.2d 1124 (1977); Rosser v. Prem, 52 Md. App. 367, 384, 449 A.2d 461 (1982).

The plaintiff claims that it has proven that the property was being used exclusively for a charitable purpose. The main flaw in the plaintiffs argument is that it is trying to establish a present tax exemption based on future intentions. We must, however, examine the current state of the Hart Meadow project on the facts found by the trial court. “It is the actual use being made of the property on the tax day which is determinative, not the use intended for the future. Gillette v. Hartford, 31 Conn. 351, 359 [1863].” Arnold College v. Milford, 144 Conn. 206, 211, 128 A.2d 537 (1957). In this case, the trial court found that six units had been constructed at the time of trial. The six occupants had paid the up-front fee of $73,000 and were paying a monthly maintenance fee of $350. There had been no limitation on wealth or income for the current occupants. The only requirement had been that one occupant in each unit be at least sixty-two years old. The dispositive conclusion made by the trial court was that there had been nothing to indicate either that the project had not been self-supporting or that the admission of its residents would make it less likely that such residents would become burdens on society.

The payment of the $73,000 and the monthly maintenance fee of $350 support the conclusion that the project is self-supporting. On cross-examination, the pastor of the plaintiff, Reverend Edward Mayes, testified that the monthly fee “covers all our maintenance costs, the lawn care, the snow removal, all repairs on the cottages inside and out. A portion is being set aside for long-term maintenance, insurance and debt amortization.” Mayes also testified that the facility is financing itself. When asked about what services are provided by the plaintiff to the project, Mayes testified that members of the church have helped out with “the weeding and the landscaping.” He also stated that the church members would help the residents “utilize the various agencies in the community.” When questioned about the health care that the plaintiff provided to the Hart Meadow residents, Mayes testified that the plaintiff had been negotiating with a doctor to be on call twenty-four hours a day for emergencies.

The Appellate Court was correct in concluding that the plaintiffs had failed to prove that the project is not now self-supporting. The plaintiff is presently under no legal obligation to provide any services that would impose any significant financial burden on it. The monthly fee covers virtually all the plaintiffs expenses. The incidental auxiliary services (i.e., weeding and landscaping) offered by the plaintiff do not raise the entire project to an exclusive charitable use entitled to a tax exemption. Unlike other projects that provide “lifetime” health care; see, e.g., Fredericka Home for the Aged v. County of San Diego, supra, 790; In re Central Union Church, 63 Hawaii 199, 201-202, 624 P.2d 1346 (1981); Hart Meadow has merely volunteered to negotiate with a doctor to provide care, presumably for a fee charged directly to the residents who receive such services. Church Homes, Inc., has facilities that provide more extensive health care, but a Hart Meadow resident who is unable to care for himself or herself is guaranteed only a spot on the waiting list for Church Homes, Inc. A Hart Meadow resident who is admitted to Church Homes, Inc., is liable for those fees charged to any resident of the Church Homes, Inc.’s facilities. Although the return on its money is not as great as it previously was, the plaintiff’s initial investment of $60,000 is being paid back. We agree with the Appellate Court that the trial court’s finding that there is nothing to indicate that the project is not self-supporting was not clearly erroneous.

The trial court also found that the plaintiff did not prove that the project would make it less likely that the residents would become burdens on society. The record is clear that all initial residents must pay $73,000 and that there are no income or wealth restrictions on applicants. On cross-examination, Mayes even admitted that all the residents could be millionaires. At the time of the trial, all six residents had paid $73,000 and were currently paying $350 a month in fees. The project was open only to residents who are able to take care of themselves and live independently. Once residents were unable to do so, they could no longer live at Hart Meadow. The plaintiff attempts to ameliorate these rather stringent conditions for living at Hart Meadow by explaining that Hart Meadow follows the procedures of Church Homes, Inc., in that Church Homes, Inc., has never evicted anyone for an inability to pay the maintenance fee and that arrangements are made for subsidies when necessary. Although the plaintiff claims it is obligated to follow these procedures because of its agreement with Church Homes, Inc., there is no such obligation to the residents themselves. This is another example of the plaintiff asking for a tax exemption based on future intentions. The fact remains that at present Hart Meadow is open only to those elderly persons who can afford a down payment of $73,000, a monthly fee of $350 and are able to take care of themselves. How this project keeps these elderly persons from becoming burdens on society is not indicated by the record. Hart Meadow is inaccessible for those elderly who have no capital, no steady income and are unable to take care of themselves. See Evangelical Retirement Homes v. State Tax Commission, 669 S.W.2d. 548, 554 (Mo. 1984) (the “public nature of a charity is diminished when it is systematically denied to those who need and can least afford the service”). These low-income elderly, concededly unable to reside as initial residents of Hart Meadow, are much more likely to become burdens on society absent governmental or charitable intervention than those who qualify for Hart Meadow. The plaintiff has not sustained its burden of proving that its project will make it less likely that its elderly residents will become burdens on society.

This court faced a similar claim in Waterbury First Church Housing, Inc. v. Brown, 170 Conn. 556, 367 A.2d 1386 (1976), and held that a nonprofit housing corporation that rented apartments to the elderly at below market rates was not exempt from the sales and use tax under General Statutes (Rev. to 1975) § 12-412 (h). Although the corporation was held to have been organized for a charitable purpose; id., 561; this court held that “the manner and means it adopts for the accomplishment of those purposes” also must be exclusively charitable. Id., 562. The court emphasized the requirement that the organization’s income be based on “ ‘private sources which are spent for the public weal.’ ” Id., 563. Quoting Corbin v. Baldwin, 92 Conn. 99, 107, 101 A. 834 (1917), this court stated: “ ‘[T]he exemptions are given for the assistance and help of the private endeavor in its effort to advance the public interest or to perform some share of the public governmental duty. . . . The amount of taxes which are lost to the State and its political subdivisions by reason of exemptions are of trifling consequence as compared with the sums coming from private sources which are spent for the public weal.’ (Emphasis added.)” Waterbury First Church Housing, Inc. v. Brown, supra, 563-64. The plaintiff is unable to claim that government would have to intervene in the public interest had the plaintiff not provided the Hart Meadow project. The reasoning and result in Waterbury First Church Housing, Inc. v. Brown, supra, supports the trial court's conclusion in this case.

Although requests for tax exemptions are evaluated under the specific facts and applicable state statute before us; Presbyterian Homes v. Division of Tax Appeals, 55 N.J. 275, 286, 261 A.2d 143 (1970); a survey of other jurisdictions reveals that the majority deny a property tax exemption under similar circumstances. A number of projects were quite similar to Hart Meadow in that they had an initial endowment fee, a moderate maintenance fee, and only those in reasonably good health were eligible. See generally annots., 37 A.L.R.3d 565, 1191. The fact that inability to pay precluded the most needy from being members was a key reason for the denial of a tax exemption. See, e.g., Appeal of Sunny Ridge Manor, Inc., 106 Idaho 98, 103, 675 P.2d 813 (1984); Michigan Baptist Homes & Development Co. v. Ann Arbor, 396 Mich. 660, 671, 242 N.W.2d 749 (1976); Madonna Towers v. Commissioner of Taxation, 283 Minn. 111, 122, 167 N.W.2d 712 (1969); Evangelical Retirement Homes v. State Tax Commission, supra, 557; Presbyterian Homes v. Division of Tax Appeals, supra, 287; In re Appeal of Barham, 70 N.C. App. 236, 244, 319 S.E.2d 657 (1984); Appeal of Marple Newtown School District, 500 Pa.160, 165, 455 A.2d 98 (1982). Another key factor in denying tax exemption was the lack of a legal commitment to provide care for those residents who subsequently were unable to pay the fees. See, e.g., Evangelical Retirement Homes v. State Tax Commission, supra, 553; Presbyterian Homes v. Division of Tax Appeals, supra, 286; In re Appeal of Barham, supra; Appeal of Marple Newtown School District, supra. Although the plaintiff introduced considerable testimony that Church Homes, Inc., had a history of not denying services to those who subsequently became unable to pay the required fees, the fact remains that the commitment by the plaintiff is only a moral one.

There are some jurisdictions that grant a tax exemption for housing for the elderly. See, e.g., Fredericka Home for the Aged v. County of San Diego, supra, 794-95; In re Central Union Church, supra, 204-205; Hilltop Manor v. County Board of Review of Marion County, 346 N.W.2d 37, 40 (Iowa App. 1984). There are some distinguishing factors in these cases that are not present in the Hart Meadow project. See, e.g., Fredericka Home for the Aged v. County of San Diego, supra, 791 (35 percent of the operating costs were paid by donations and “life care” contracts were provided); In re Central Union Church, supra, 207 (the contract provided that a resident would never be asked to leave); Hilltop Manor v. County Board of Review of Marion County, supra, 38 (all construction costs were paid with donations). Even if these factors do not make the Hart Meadow project distinguishable, we conclude that, given the facts presented in this case, the reasoning of the majority of jurisdictions is more persuasive.

Both the plaintiff and the dissenting opinion in the Appellate Court rely heavily on general language from various federal and state statutes that articulate a governmental concern for the elderly’s particular needs including suitable and affordable housing. On the other hand, the defendant points out that the state statutes that do apply to provision of housing for the elderly specifically provide for payments to municipalities in lieu of taxes or state grants to municipalities for the housing developed under these programs. The defendant claims that this shows that the state is aware of the impact that tax exemptions have on municipalities. We agree with the defendant. The legislature is aware of both the needs of the elderly and the role that local property taxes play in the local government. A number of statutory provisions take the competing concerns into account not only by aiding the development of such housing but also by providing fiscal relief to the municipalities that take part in those programs. These statutes provide that payments are to be made by developers to the municipalities in lieu of taxes. See, e.g., General Statutes §§ 8-118a, 8-119k; see also General Statutes § 8-216 (state reimbursement for tax abatements for low and moderate income housing); General Statutes § 12-170d (state refund of utility bills for renters over sixty-five years old). Viewing the legislature’s actions in light of the maxim that “statutes which exempt from taxation are to be strictly construed against the party claiming an exemption”; Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 147, 256 A.2d 234 (1969); we hold that the trial court correctly determined that the plaintiff was not entitled to a tax exemption under General Statutes § 12-81 (7).

We therefore affirm the judgment of the Appellate Court.

In this opinion the other justices concurred.

       General Statutes § 12-88 provides: “when property otherwise taxable may be completely or partially exempted. Real properly belonging to, or held in trust for, any organization mentioned in subdivision (7), (10), (11), (13), (14), (15), (16) or (18) of section 12-81, which real property is so held for one or more of the purposes stated in the applicable subdivision, and from which real property no rents, profits or income are derived, shall be exempt from taxation though not in actual use therefor by reason of the absence of suitable buildings and improvements thereon, if the construction of such buildings or improvements is in progress. The real property belonging to, or held in trust for, any such organization, not used exclusively for carrying out one or more of such purposes but leased, rented or otherwise used for other purposes, shall not be exempt. If a portion only of any lot or building belonging to, or held in trust for, any such organization is used exclusively for carrying out one or more of such purposes, such lot or building shall be so exempt only to the extent of the portion so used and the remaining portion shall be subject to taxation.”

       General Statutes § 12-81 (7) provides: “Property used for scientific, educational, literary, historical or charitable purposes. Exception. Subject to the provisions of sections 12-87 and 12-88, the real property of, or held in trust for, a corporation organized exclusively for scientific, educational, literary, historical or charitable purposes or for two or more such purposes and used exclusively for carrying out one or more of such purposes and the personal property of, or held in trust for, any such corporation, provided (a) any officer, member or employee thereof does not receive or at any future time shall not receive any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes or as proper beneficiary of its strictly charitable purposes, and provided (b) in 1965, and quadrennially thereafter, a statement on forms prepared by the secretary of the office of policy and management shall be filed on or before the last day required by law for the filing of assessment returns with the local board of assessors of any town, consolidated town and city or consolidated town and borough, in which any of its property claimed to be exempt is situated. On and after July 1, 1967, housing subsidized, in whole or in part, by federal, state or local government and housing for persons or families of low and moderate income shall not constitute a charitable purpose under this section.”

       The issue certified for appeal is: “On the facts found by the trial court, did the plaintiff sustain its burden of proving that its West Hartford housing project was being used exclusively for charitable purposes as that term is defined in General Statutes § 12-81 (7)?”

       The United Church of Christ congregation, at a meeting called, to discuss the Hart Meadow project, voted: “Whereas our congregation feels that a portion of our outreach ministry can be accomplished by the provision of housing on our property for the elderly, and Whereas Phase I of the Feasibility Study has reviewed plans and concepts for such housing which are felt to accomplish our intended purpose and, Whereas there is reason for optimism of success through the efforts of our congregation with guidance and assistance from Church Homes and the Connecticut Conference, it is therefore Moved that the congregation authorize the expenditure by the Hart Meadow Project Committee of approximately $7,000 of church funds so that they may proceed with Phase II of the Feasibility Study involving detailed planning and a zoning application with the town government. If the project is successful, the $7,000 will become part of the capitalization expense and will be returned to the church.”

       There was a conflict concerning the amount of the monthly maintenance fee. The plaintiff claims the record shows that it was $275 per month since the fee had been adjusted to allow tenants to pay their own electric bills due to varying amounts of usage. The trial court found that the fee was $350. This dispute is irrelevant on the issue before us since the facts indicate that a fee of $350 with electricity included is roughly equivalent to a fee of $275 without electricity included. Since the tenant is paying for his own electricity under either system, the dispute does not implicate the issue of whether the project is self-supporting.

       The plaintiff moved the court to articulate the bases for its decision and the trial court responded as follows: “(1). To articulate what standard of proof the trial court required the Plaintiff-apellant to meet in order to sustain its burden of proof in the tax appeal.
      “(2) To articulate whether the trial court found the necessity of service to or for the poor as a standard for charitable exemption under Section 12-81 (7) of the Connecticut General Statutes.
      “(3) For the State Trial Referee to take judicial notice of the Senior Citizen Act of 1962, Section 236 of Title 12, Section 1701 of the U.S. Code which provides that housing for the elderly is a paramount concern of the Nation and Congress.
      “(4) To articulate how or why, based on the evidence produced at trial and present law, the Plaintiff-appellant failed to meet the required standard of proof.”

        In response, the court filed a supplemental memorandum of decision as follows: “(1) The court required that the plaintiff prove by a fair preponderance of the evidence that the property which was the subject of its appeal was exempt from taxation by the defendant town.
      “(2) The Court did not find that service to or for the poor is an exclusive necessary requirement for charitable exemption under the provisions of General Statutes Section 12-81 (7) but did consider it as a significant criterion in determining whether property is being used exclusively for charitable purposes.
      “(3) The Court did not take judicial notice of the Senior Citizen Act of 1962, Section 236 of Title 12, Section 1701 of the U.S. Code and was not requested to do so, nor was it called to the Court’s attention at the trial. (See Wood v. Wood, 165 Conn. 777, 780 [345 A.2d 5 (1974).])
      “(4) As to the plaintiffs request that the Court articulate how and why the plaintiff failed to sustain its burden of proof, the court is unaware of what evidence may have been available to support the plaintiffs contention but, as noted in the Memorandum of Decision, it is concluded that the plaintiff failed to prove that the property in question is now devoted to and used exclusively for charitable purposes.”

       See, e.g., Older Americans Act of 1965, Pub. L. No. 89-73 § 101, 79 Stat. 219; HRS Chapter 349, S.L.H. 1976, c. 217.

       See, e.g., General Statutes §§ 8-112a, 8-119d and §§ 17-135a through 17-137f.

       General Statutes § 8-118a provides: “payments in lieu of taxes and assessments. In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to a municipality, a local authority shall pay each year, to the municipality in which any of its housing projects for elderly persons is located, a sum to be determined by the municipality with the approval of the commissioner of housing not in excess of ten per cent of the shelter rent per annum for each occupied dwelling unit in any such housing project hereunder; except that the amount of such payment shall not be so limited in any case where funds are made available for such payment by an agency or department of the United States government, but no payment shall exceed the amount of taxes which would be paid on the property were the property not exempt from taxation.”

       General Statutes § 8-119k provides: “payment in lieu of taxes. In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to a municipality, an eligible developer approved by the commissioner of housing for state financial assistance for a congregate housing project shall pay each year, to the municipality in which any of its congregate housing projects for the lelderly is located, a sum to be determined by the municipality with the approval of the commissioner of housing not in excess of ten per cent of the shelter rent per annum for each occupied dwelling unit in any such housing project hereunder; except that the amount of such payment shall not be so limited in any case where funds are made available for such payment by an agency or department of the United States government, but no payment shall exceed the amount of taxes which would be paid on the property were the property not exempt from taxation.”


text:
    State of Connecticut v. James Kristy

      Timothy H. Everett, in support of the petition.

      Christopher Malany, deputy assistant state’s attorney, in opposition.
    Decided November 18, 1987
   The defendant’s petition for certification for appeal from the Appellate Court, 11 Conn. App. 473, is denied.


text:
    State of Connecticut v. Curtis Sims

      Elizabeth A. Curry, special public defender, in support of the petition.
    Decided November 24, 1987
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 239, is denied.


text:
    Leonard Udolf v. Zoning Board of Appeals of the Town of West Hartford et al.

      Wesley W. Horton, in support of the petition.

      Kerry M, Wisser and Elizabeth Dee Bailey, in opposition.
    Decided November 24, 1987
   The plaintiff’s petition for certification for appeal from the Appellate Court is granted.


text:
    Balboa Insurance Company v. Joseph D. Zaleski et al.

      Mark E. Blakeman, in support of the petition.
    Decided December 14, 1987
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 529, is denied.


text:
    Clinton Rowe v. Raymond Godou et al.

      Bruce L. Levin, in support of the petition.
    Decided December 14, 1987
   The plaintiff’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 538, is granted, with limitation.


text:
    State of Connecticut v. Alfred J. Barkal

      Arthur P. Meisler, in support of the petition.

      Michael E. O’Hare, assistant state’s attorney, in opposition.
    Decided December 14, 1987
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    In the Matter of L’Ambiance Plaza

      David A. Haught, in support of the petition.
    Decided December 23, 1987
   The petition for certification by the defendants TPM Architects, Inc., TPM Engineers, Inc., and TPM International for appeal from the Appellate Court is dismissed.


text:
    Leonard Udolf v. Plan and Zoning Commission of the Town of West Hartford et al.

      Wesley W. Horton, in support of the petition.

      Richard P. Weinstein, Marjorie S. Wilder and Patrick G. Alair, in opposition.
    Decided December 23, 1987
   The plaintiff’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    Leonard Smith et al. v. John Czescel

      William F. Gallagher, in support of the petition.
    Decided December 23, 1987
   The defendant’s petition for certification for appeal from the Appellate Court, 12 Conn. App. 558, is denied.


text:
    Mazie Dennison, Administratrix (Estate of David Dennison) v. Lewis Klotz et al.

      William F. Gallagher, in support of the petition.

      Barbara N. Bellis and Kevin M. Tepas, in opposition to the petition.

      Kevin M. Tepas, in support of the cross petition.
    Decided January 5, 1988
   The petition by the plaintiff and the cross petition by the defendant Andrew Priest for certification for appeal from the Appellate Court, 12 Conn. App. 570, are denied.