author: Borden, J.

text:
    Michael Anthony Seno, Sr. v. Commissioner of Correction
    (14196)
    Shea, Callahan, Glass, Borden and F.X. Hennessy, Js.
    Argued April 26
    decision released June 18, 1991

      John W. Watson, assistant public defender, for the appellant (petitioner).

      L. D. McCallwn, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Borden, J.

The sole issue in this appeal is whether a person sentenced to a term of imprisonment exceeding five years must be incarcerated for five calendar years in order to earn statutory good time at the rate of twelve days per month pursuant to General Statutes § 18-7a (c). The petitioner, Michael Anthony Seno, Sr., appeals from the judgment of the trial court dismissing his petition for a writ of habeas corpus. The petitioner claims that the trial court should have determined that the respondent, the commissioner of correction, failed to calculate properly the amount of statutory good time that the petitioner has earned and, therefore, should have granted his petition. We agree and, accordingly, we reverse the judgment of the trial court.

The material facts are not in dispute. Following his conviction of multiple offenses that had occurred after July 1, 1983, the petitioner received an effective sentence of twelve years imprisonment and was committed to the custody of the respondent. During the first five years of the petitioner’s confinement, the respondent calculated the statutory good time that he had earned at a rate of ten days per month. Thereafter, the respondent calculated the petitioner’s statutory good time at the rate of twelve days per month.

The petitioner filed this petition for a writ of habeas corpus in the Superior Court, claiming that, pursuant to § 18-7a (c), the respondent should have calculated the petitioner’s statutory good time at the rate of twelve days per month when his confinement time and credit time from all sources totaled five years. The court dismissed the petition, concluding that, under § 18-7a (c), only confinement time and credit time for presentence confinement; General Statutes § 18-98d (a); are properly considered in determining when the enhanced rate of statutory good time commences.

On the granting of certification, the petitioner appealed to the Appellate Court. We thereafter transferred the appeal to this court pursuant to Practice Book § 4023.

The petitioner claims that the habeas court improperly rejected his claim that, pursuant to § 18-7a (c), the respondent should have calculated his statutory good time at the rate of twelve days per month once the total of his confinement time and credit time from all sources equalled five years and, therefore, wrongfully dismissed his petition for a writ of habeas corpus. The respondent counters that the habeas court correctly determined that, pursuant to § 18-7a (c), the petitioner actually was required to spend five years in confinement in order to earn statutory good time at the enhanced rate and, therefore, properly denied the petition. We agree with the petitioner in part.

General Statutes § 18-7a (c) provides in pertinent part: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1,1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years.” Both the petitioner and the respondent assert that the plain language of § 18-7a (c) supports their opposing positions. The petitioner argues that the phrases “of a sentence up to five years” and “for the sixth and each subsequent year of a sentence which is more than five years” require that a prisoner serving a sentence in excess of five years imprisonment receive statutory good time at the rate of twelve days per month when his confinement time and credit time from all sources equals five years. The petitioner contends that to apply the section otherwise renders the phrase “of a sentence” superfluous. The respondent argues that because § 18-7a (c) provides that statutory good time is earned “as such sentence is served” and because, logically, “the sixth . . . year of a sentence” cannot commence until a prisoner has been confined for five calendar years, a prisoner can earn statutory good time at the rate of twelve days per month only after five years of incarceration.

Contrary to the parties, we believe that the language of § 18-7a (c), on its face, is insufficient to resolve the issue presented. Although we have stated that § 18-7a (c) is unambiguous in other contexts; see Nichols v. Warren, 209 Conn. 191, 198, 550 A.2d 309 (1988); Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987); we there considered language of the provision and issues distinct from those involved in the present case. See Nichols v. Warren, supra, 197 (whether provision subjecting prisoner to the loss of “all or any portion of such [sentence] reduction” as a result of misconduct authorizes prospective forfeiture of statutory good time); Murray v. Lopes, supra, 33-34 (whether confinement at Whiting Forensic Institute constitutes “imprisonment” within the meaning of § 18-7a [c]). Under the circumstances of this case, therefore, § 18-7a (c) requires our construction.

Prior to July 1, 1983, statutory good time was calculated pursuant to General Statutes (Rev. to 1983) § 18-7a, which provided in pertinent part: “(a) Except as provided in subsection (b) any person sentenced to a term of imprisonment, on and after October 1,1976 . . . may, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. . . .

“(b) Any person sentenced to a term of imprisonment for an offense committed on or after July 1,1981, may . . . by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years.”

Pursuant to General Statutes (Rev. to 1983) § 18-7a, for purposes of administrative efficiency statutory good time was calculated and credited at the outset of a prisoner’s sentence on the basis of the sentence imposed by the sentencing court. See Nichols v. Warren, supra, 199. This method of awarding good time is commonly referred to as “posting.” Id. For example, when a prisoner sentenced to seven years imprisonment for an offense committed prior to July 1, 1983, was committed to the custody of the respondent, his statutory good time was calculated as follows: for the first sixty months he received ten days per month for a total of 600 days; for the remaining twenty-four months he received twelve days per month for a total of 288 days. Thus, a total of 888 days of statutory good time was credited to his sentence. If the prisoner thereafter exhibited good conduct and obedience to the rules, he was released from custody after 54.4 months of confinement. The Prison and Jail Overcrowding Commission, “Prison and Jail Overcrowding: A Report to the Governor and Legislature,” January, 1983, p. 70.

Consequently, although the prisoner had been confined for less than five years, because the sentence imposed immediately determined the time at which the enhanced rate of statutory good time began, he had received statutory good time at the rate of twelve days per month for a portion of his sentence. Essentially, the enhanced rate of statutory good time had commenced when his confinement time, approximately forty months, and statutory good time, twenty months, totaled five years. Under General Statutes (Rev. to 1983) § 18-7a, therefore, the phrases, “of his sentence” and “of a sentence,” referred not to the actual time served in incarceration, but to the sentence as imposed by the court, and included the applicable credit for statutory good time.

In July, 1983, pursuant to Public Acts 1982, No. 82-379, § 18-7a was revised to include subsection (c). Thereafter, prisoners sentenced to a term of imprisonment on or after October 1,1976, for an offense committed prior to July 1, 1981, received statutory good time according to § 18-7a (a); prisoners sentenced to a term of imprisonment for an offense committed on or after July 1,1981, but before July 1,1983, received statutory good time according to § 18-7a (b); and prisoners sentenced to a term of imprisonment for an offense committed on or after July 1,1983, as was the petitioner in this case, received statutory good time pursuant to § 18-7a (c).

Public Acts 1982, No. 82-379 did not change the substance of General Statutes (Rev. to 1983) § 18-7a (a) and (b). See General Statutes (Rev. to 1991) § 18-7a (a) and (b); compare General Statutes (Rev. to 1983) § 18-7a. The respondent does not dispute, therefore, that at present pursuant to § 18-7a (a) and (b) prisoners sentenced to a term of imprisonment for an offense committed before July 1,1983, receive statutory good time according to the posting method. Thus, the respondent necessarily concedes that had the petitioner been sentenced for an offense committed before July 1,1983, he would have earned statutory good time at the rate of twelve days per month once his confinement time and statutory good time totaled five years. We must determine, therefore, whether the revision of § 18-7a, adopting subsection (c), was intended to alter the time at which the enhanced rate of statutory good time commences.

The legislative history of Public Acts 1982, No. 82-379 demonstrates that the act was designed to attain two related objectives. First, the legislature sought to return to the original concept behind good time, that is, the concept of reward for good behavior. Senator Nancy L. Johnson defined this objective, stating: “All this bill really does is to return the initial concept of good time which was a concept of reward. A reward for good behavior. When you deduct the entire amount at the front end of the sentence, then what you revert to is the system of punishment for poor behavior. So that instead of granting good time you actually end up earning penalties for poor behavior. . . .All it means is that the reward will not be front-ended. The reward must be earned and, indeed, good time will reduce the sentence, essentially the sentence that is there now, the kind of sentence that is being given now. . . . The importance of this bill is that it returns to the original sound concept of good time which is a concept of reward for good behavior rather than a concept of punishment for failure to provide good behavior.” 25 S. Proc., Pt. 12, 1982 Sess., pp. 3826-27.

The legislature’s second objective was to eradicate an irrational consequence of the posting system. Because, under the posting system, good time is credited at the outset of a sentence, some prisoners receive good time for time that they, in fact, never serve. As Representative Christopher Shays explained: “We compute good time [under § 18-7a (a)] saying the person is going to serve the whole 10 years, so he earns 5 years based on 10 days a month and then he has 5 years based on 15 days a month, assuming that he is in jail for the whole ten years. . . . And so what you end up with is a sentence where an individual gets out before he even serves the full sentence earning the good time.” 25 H.R. Proc., Pt. 11, 1982 Sess., p. 3551. For example, pursuant to the posting method, a prisoner sentenced to a term of seven years imprisonment is awarded good time for eighty-four months of service. If the prisoner exhibits good conduct and obedience and, therefore, retains the good time, he will serve 54.4 months. The Prison and Jail Overcrowding Commission, “Prison and Jail Overcrowding: A Report to the Governor and Legislature,” January, 1983, p. 70. Consequently, the prisoner receives good time for 29.6 months of time that he never serves.

As the following remarks demonstrate, the predominant purpose of § 18-7a (c) was to eliminate the possibility of prisoners earning good time for time that is never served. As Representative John Wayne Fox observed: “Mr. Speaker, I think it’s important before we vote on this issue that we understand completely what’s involved and that the issue not be muddied by extraneous information. The issue I submit is a very simple one. It’s an issue of public policy. We have a concept which we call good time. That is to provide an individual with credit for behaving himself or herself while serving a sentence imposed by our courts. The question is whether or not that individual should receive credit for that time before that individual ever steps into a jail. As the statute is presently interpreted, one receives that credit at the time the sentence is imposed and prior to ever serving any time. This bill as amended would provide that one would receive the credit for good time as one earns it.” 25 H.R. Proc., Pt. 11,1982 Sess., pp. 3555-56. Representative Edward C. Krawiecki, Jr., concurred in this characterization, explaining: “This is a narrow issue, whether or not we believe someone who has been sentenced to serve a fixed period of time in prison should serve that time and earn good time, not be awarded good time before he walks in the door and serves even one minute of time.” Id., p. 3545. He further stated: “The issue at stake is whether you believe that people when sentenced to serve time, must earn what is commonly called good time. That is all this bill does. The other issues will be dealt with as we go by. And if you do not believe that someone who is sentenced to serve a fixed period of time does not have to serve it in order to get out a little earlier, then you probably will be voting no on this bill. But that is what the issue is. It is nothing else.” Id., pp. 3560-61.

Elimination of the posting system and adoption of a system that awards statutory good time on a monthly basis was an effective means by which the legislature accomplished its dual objectives. Senator Howard T. Owens, Jr., clarified the means chosen, stating: “The Correction Department presently computes good time at the beginning of the prison term based upon the length of the sentence imposed. This bill would require that [for] persons sentenced for offenses committed on or after July one . . . the good time credit be computed according to time actually served rather than on the sentence imposed. This method of computing good time would result in a longer confinement. Obviously, the intent of this legislation would be that in the event anyone who is sentenced after July one that the ten days or the twelve days respectively, whatever the case may be, credit would actually be imposed on the time actually served rather than on the sentence imposed . . . 25 S. Proc., Pt. 12, 1982 Sess., pp. 3821-22.

A comparison of the language of § 18-7a (b) and (c) reveals how the new methodology was established. Section 18-7a (b) provides in pertinent part: “[A]ny person . . . may . . . earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years.” Section 18-7a (c) provides in pertinent part: “Any person . . . may . . . earn a reduction of his sentence as suck sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years.” (Emphasis added.) Thus, by adding the phrase “as such sentence is served” and the word “served” to language virtually identical to § 18-7a (b), the legislature dispensed with the posting method and adopted, in its place, a system of calculating statutory good time on a monthly basis.

Although § 18-7a (c) was designed to alter the time at which statutory good time is awarded, and to change from the posting method to a system of good time earned monthly, the legislative history does not indicate that the legislature also intended to change the practice of determining the time at which the enhanced rate of good time commences on the basis of the sentence imposed. Nor does the language reveal any such intention. The only substantial difference between the pertinent language of § 18-7a (b) and (c) is the phrase “as such sentence is served” and the word “served” which, as previously explained, altered the time at which statutory good time is awarded. Otherwise, the relevant language is substantially unchanged. “ ‘In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.’ Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954).” McCarthy v. Commissioner of Correction, 217 Conn. 568, 578, 587 A.2d 116 (1991).

Furthermore, the respondent’s argument would require that the phrases, “of his sentence” and “of a sentence,” have different meanings in subsections (a) and (b) of § 18-7a and in subsection (c) of the same section. It is clear, as the respondent concedes, that those phrases as used in § 18-7a (a) and (b) refer to the sentence as imposed by the court, reduced by the applicable good time. When the legislature used the same phrases in § 18-7a (c), it must be regarded as having intended the same meaning. Gurliacci v. Mayer, 218 Conn. 531, 551, 590 A.2d 914 (1991). Thus, when the legislature referred in § 18-7a (c) to “twelve days for each month served . . . for the sixth and each subsequent year of a sentence which is more than five years”-, (emphasis added); it must be regarded as intending that language to have the same meaning as it has in § 18-7a (a) and (b).

Finally, the respondent’s interpretation of § 18-7a (c) leads to an irrational result. If we were to interpret § 18-7a (c) as imposing a new requirement of five years of actual incarceration in order to earn statutory good time at the rate of twelve days per month, model prisoners would not have the ability to earn the enhanced rate of statutory good time earlier than prisoners who have failed to exhibit good conduct and obedience to the rules. In addition to effecting a change in established practice, therefore, the incentive for prisoners to behave obediently would be decreased, thereby undercutting the rehabilitative function served by good time. See McCarthy v. Commissioner, supra, 569; Holmquist v. Manson, 168 Conn. 389, 394, 362 A.2d 971 (1975). “ ‘[Wjhere a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to “bizarre results” destructive of that purpose, the former should prevail.’ State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988).” State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988).

In light of its language and legislative history, we conclude that § 18-7a (c) requires that the respondent calculate a prisoner’s sentence at the rate of twelve days per month once his confinement time and statutory good time total five years. We conclude, therefore, that the habeas court should have determined that the respondent failed to calculate and credit properly the statutory good time earned by the petitioner and should have granted his petition for a writ of habeas corpus.

Our conclusion sustains the petitioner’s claim only in part. Whereas we conclude that the respondent must calculate a prisoner’s statutory good time at the rate of twelve days per month once his confinement time and statutory good time total five years, the petitioner claims that the enhanced rate commences when a prisoner’s confinement time and credit time from all sources total five years. Thus, the petitioner argues that in addition to his statutory good time; General Statutes §§ 18-7a (c), 18-98d (b); the respondent should have considered his credit time for employment; General Statutues § 18-98a; and outstandingly meritorious good time; General Statutes § 18-98b; in determining when the petitioner had served five years of his sentence within the meaning of § 18-7a (c) and was therefore entitled to earn statutory good time at the enhanced rate of twelve days per month. See footnote 5, supra. We decline to address this aspect of the petitioner’s claim.

The language and legislative history of § 18-7a (c) only support the conclusion that the respondent must consider statutory good time along with confinement time in determining when a prisoner is entitled to earn statutory good time at the enhanced rate. These sources are uninstructive with respect to the issue of whether other forms of credit time must be considered. Furthermore, despite the petitioner’s use of the phrase “credit time from all sources” in characterizing his claim, the parties did not address the question of whether forms of credit time other than statutory good time must be included in the respondent’s calculation under § 18-7a (c) in either their briefs or at oral argument. We therefore defer consideration of the question of whether credit time from employment and outstandingly meritorious good time must be considered in determining when a prisoner is entitled to earn statutory good time at the rate of twelve days per month.

The judgment is reversed and the case is remanded with direction to render judgment for the petitioner and for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

        “ ‘[G]ood time’ is a commutation of a sentence, affecting an inmate’s parole and discharge dates, thereby serving an important rehabilitative function by allowing an inmate the opportunity to earn an earlier release for himself. See McGinnis v. Royster, 410 U.S. 263, 271, 35 L. Ed. 2d 282, 93 S. Ct. 1055 [1973].” Holmquist v. Manson, 168 Conn. 389, 394, 362 A.2d 971 (1975).

       General Statutes § 18-7a provides: “(a) Except as provided in subsections (b) and (c) any person sentenced to a term of imprisonment, on and after October 1,1976, and while still serving such sentence whether such sentence is for a definite, indefinite or indeterminate term, and regardless of the institution wherein the prisoner is confined may, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. In the case of an indeterminate sentence, such credit shall apply to both the minimum and maximum term. In the case of an indefinite sentence, such credit shall apply to the maximum term only. Any act of misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such credit by the commissioner or his designee.
      “(b) Except as provided in subsection (c), any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1981, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of Ms sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.
      “(c) Any person sentenced to a term of imprisonment for an offense committed on or after July 1,1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of Ms sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”

       The petitioner was convicted of nine counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), five counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B).

       By adding five years to the day that the petitioner’s sentence had commenced and then subtracting 197 days, the time that the petitioner had spent in presentence confinement, the respondent determined that on October 13,1988, the petitioner had been incarcerated for five years. Accordingly, the respondent began calculating the petitioner’s statutory good time at the enhanced rate on the following month.

       On or about March 17,1987, the petitioner had been confined for 1056 days and had received 197 days of credit time for presentence confinement. General Statutes § 18-98d (a). In addition, the petitioner had earned sixty-three days of presentence statutory good time; General Statutes § 18-98d (b); 346 days of statutory good time; General Statutes § 18-7a (c); sixty days of outstandingly meritorious good time; General Statutes § 18-98b; and 103 days of credit time for employment. General Statutes § 18-98a. Thus, on or about March 17,1987, the petitioner’s confinement time and credit time from all sources totaled 1825 days, or five years.

       General Statutes § 18-98d (a) provides in pertinent part: “Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed . . . .”

       If a prisoner engaged in misconduct, a portion of the good time was rescinded. Nichols v. Warren, 209 Conn. 191, 199, 550 A.2d 309 (1988).

       We recognize that some of the language of Senator Howard T. Owens, Jr.’s remarks may support the respondent’s reading of General Statutes § 18-7a (c), namely, that regarding “the ten days or the twelve days respectively, whatever the case may be, credit would actually be imposed on the time actually served rather than on the sentence imposed . . . .” 25 S. Proc., Pt. 12,1982 Sess., p. 3822. Taken in the context of the other legislative history, however, suggesting more limited purposes of the act, and taken in the context of the language of the act itself, discussed in the text, we cannot ascribe to those remarks a conclusive effect in support of the respondent’s position.

       General Statutes § 18-98d (b) provides: “In addition to any reduction allowed under subsection (a), if [any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail] obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or a sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing a good conduct reduction under this subsection.”

       General Statutes § 18-98a provides: “Each person committed to the custody of the commissioner of correction who is employed within the institution to which he was sentenced, or outside as provided by section 18-100, for a period of seven consecutive days, except for temporary interruption of such period as excused by the commissioner for valid reasons, may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the commissioner of correction.”

       General Statutes § 18-98b provides: “In addition to any commutation or diminution of [a] sentence or any meritorious time service award which may have been granted under section 18-7 or 18-53 any inmate committed to the custody of the commissioner of correction for a definite term, or for a term with a minimum sentence imposed, may have not more than one hundred and twenty days deducted from any one continuous term of imprisonment as an outstandingly meritorious performance award in the discretion of the commissioner of correction for exceptional personal achievement, accomplishment and other outstandingly meritorious performance, provided any serious act of misconduct or insubordination or refusal to conform to institution regulations occurring at any time during his confinement shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all, or any portion, of any time awarded under this section. When any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award authorized by this section.”

       The petitioner contends that, as a result of the respondent’s failure to calculate properly his statutory good time, he is entitled to an additional thirty-eight days of statutory good time. This thirty-eight day figure is based, however, upon the petitioner’s claim that the enhanced rate commences once a prisoner’s confinement time and credit time from all sources; see General Statutes §§ 18-7a (c), 18-98a, 18-98b, 18-98d (b); total five years. In light of our conclusion that General Statutes § 18-7a (c) requires that the respondent calculate a prisoner’s statutory good time at the enhanced rate once his confinement time and statutory good time; General Statutes §§ 18-7a (c), 18-98d (b); total five years, we conclude that the balance of statutory good time to which the petitioner is entitled has yet to be determined. We therefore direct the habeas court on remand: (1) to determine the date upon which the petitioner’s confinement time and statutory good time totaled five years; and (2) to order the respondent to credit the petitioner’s sentence with an additional two days of statutory good time per month, for each month that transpired from that date until November 1, 1988, the date on which the respondent commenced calculation of the petitioner’s statutory good time at the enhanced rate. See footnote 4, supra.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Robert T. Parris, Jr.
    (13870)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued March 20
    decision released June 18, 1991

      Mark Rademacher, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Gerard F. Esposito, assistant state’s attorney, for the appellee (state).
   Glass, J.

The principal issue in this sexual assault case is whether the trial court improperly admitted the testimony of certain of the state’s “constancy of accusation” witnesses without making a preliminary finding that the victim’s statements to them had been made at a “natural” time. We conclude that such a finding is not a prerequisite to the admission of constancy evidence and therefore affirm the judgment of the trial court.

The defendant, Robert Parris, was convicted after a jury trial of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), one count of risk of injury to a child in violation of General Statutes § 53-21, and one count of kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A) and (C). The defendant was sentenced to a total effective term of twenty years imprisonment, execution suspended after fifteen years, to be followed by three years probation. This appeal followed.

The jury could reasonably have found the following facts. In March of 1986, when the victim was fourteen years old, she lived in an apartment building where the defendant also resided. On the evening of March 12, 1986, the defendant accompanied the victim to a friend’s house. At some point during their return, he dragged her into an abandoned building known as the “fan gallery.” The defendant then performed various sexual acts upon the victim, including intercourse, against her will.

The defendant’s principal claim focuses upon the admission of the testimony of three of the four constancy of accusation witnesses called by the state at trial: Eric Sutherland, the victim’s “close friend”; Fran Dwyer, who counselled the victim at a clinic; and Detective Patricia Miranda, to whom the victim officially reported the incident. Prior to trial, the defendant moved to suppress the testimony of these witnesses, as well as that of Geraldine Katz, the victim’s school guidance counsellor who ultimately testified at trial, and Cindy Howell, an assault crisis counsellor who did not testify. The defendant argued that the victim’s statements to all of the proposed witnesses should be excluded as hearsay, and advanced the related claim that her statements, made from approximately ten to nineteen months after the crimes, had not been made at a “natural” time. See State v. Ouellette, 190 Conn. 84, 99, 459 A.2d 1005 (1983). Alternatively, the defendant sought to limit the number of constancy witnesses permitted to testify, as well as the victim’s testimony regarding the number of people to whom she had reported the incident, in view of the “prejudicial effect” of the testimony. The state countered that the chailenged testimony was admissible under the constancy of accusation “exception to the hearsay rule,” that the victim had made the statements at a “natural” time, and that the testimony was not more prejudicial than probative. In support of its contentions, the state offered the victim’s voir dire testimony. The victim named all of the proposed witnesses as persons to whom she had reported the incident, gave reasons for her delay in making the reports, and described the circumstances that eventually had prompted her to make them.

After hearing the victim’s testimony, the court found that while she normally would have reported such an incident to her mother, “she was afraid that her mother would not believe her.” The court further surmised that “not reporting something like that . . . because of the fear that she would be disbelieved as time went on [probably made it] more difficult to make the report. When the report was made, it was made to a Counsellor [Katz] after a presentation of a movie on the subject [sexual assault]. I think that would be a natural time for someone who had this on their mind for a considerable period of time to make the report.” Accordingly, the court denied the defendant’s motion. At trial, the victim testified on direct examination to the facts of the incident and stated that she had told her ex-boyfriend, Howell, Katz, Sutherland and Miranda that the defendant had sexually assaulted her. The state then called Sutherland, Dwyer, Katz and Miranda, who related the victim’s statements about the incident in varying degrees of detail.

On appeal, the defendant argues that the court improperly: (1) admitted the testimony of Sutherland, Dwyer and Miranda without making a preliminary finding that the victim’s statements to them had been made at a “natural” time; and (2) refused to restrict the number of the state’s constancy witnesses, as well as the victim’s testimony regarding the number of people to whom she had reported the incident, despite the “prejudicial effect” of the testimony.

I

The defendant first attacks the court’s failure to make a preliminary finding, before admitting the testimony of Sutherland, Dwyer and Miranda, that the victim’s statements to them had been made at a “natural” time. In the defendant’s view, the court found only that the victim’s statements to Katz had been made at a “natural” time, and in the absence of a similar finding regarding her statements to Sutherland, Dwyer and Miranda, their testimony should have been excluded, and his conviction accordingly should be reversed, under the authority of State v. Ouellette, supra. We disagree.

In State v. Ouellette, supra, 99, this court indicated that before constancy of accusation evidence can be admitted, “the trial court must find, under the circumstances in each case, first that the statement was made at a time when it was natural tó make it; second that the witness has been impeached by a suggestion of recent contrivance.” The Ouellette court provided two grounds for this dual prerequisite to the admission of constancy evidence. First, the court determined that because the rationale for admitting such evidence “is essentially the same as that ... for admitting prior consistent statements to counter a suggestion of recent contrivance or fabrication,” there was “no analytical reason” to approach the two kinds of evidence differently. Id. Second, the court concluded that analyzing constancy evidence in a manner analogous to prior consistent statements to counter a suggestion of recent fabrication would reduce “the confusion surrounding the admissibility of constancy of accusation evidence . . . .” Id.

While phrased in terms of a rule to be applied in future cases involving constancy of accusation evidence, however, the prerequisite announced in Ouellette was not essential to the outcome of that case. The constancy of accusation doctrine ultimately was found inapplicable in Ouellette because the victim’s disputed statement “did not concern the crime charged and was therefore not an ‘accusation’ . . . .” Id., 100. Consequently, the prerequisite was merely dictum, without the force of precedent insofar as proper constancy evidence is concerned. “[T]he precedential value of a decision should be limited to the four corners of the decision’s factual setting.” Id., 91.

Moreover, were we to adopt the Ouellette dictum by applying it in this case, our decision effectively would overrule a long line of precedent in the constancy of accusation context with which that dictum directly conflicts. The decisions of this court predating Ouellette, for example, did not condition the admission of constancy evidence upon a court’s finding that the victim’s statements had been made at a “natural” time. Rather, the admission of such evidence was approved “when the complainant first has testified, in court, to the facts of the alleged occurrence .... She is then permitted to state that she made complaint to some other person. Thereupon, the person to whom she complained, out of court and in the absence of the defendant is permitted to testify not only to the fact that a complaint was made but also to its details.” State v. Segerberg, 131 Conn. 546, 548-49, 41 A.2d 101 (1945); see State v. Brice, 186 Conn. 449, 453-54, 442 A.2d 906 (1982).

Furthermore, contrary to the dictum in Ouellette, the term “natural” as employed in our prior caselaw was not connected to any preliminary issue of admissibility for the trial court’s resolution. That term merely represents the phenomenon of human behavioral expectations that lends corroborative force, on one hand, to a sexual assault victim’s report of the fact of the incident and its details to another, and lends impeaching force, on the other hand, to the victim’s failure to make such a report or include particular details in a report made. In an early decision, this court explained the corroborative quality of constancy evidence and the impeaching quality of the lack thereof as follows: “Why has the rule been adopted that in prosecutions for rape, and for attempts to commit rape, the public prosecutor may show that the woman on whom the assault was made complained of it to her friends? It is simply because such a course would be natural if the crime had been committed, but very unnatural if it had not been. But her natural impulses would prompt her to tell all the details of the transaction. Why, on the same principle, ought not her statement of the details to be evidence? . . . If her story were true, the evidence would show constancy in the charge even to the details, and the truth [of her testimony] would more clearly appear.” State v. Kinney, 44 Conn. 153, 156-57 (1876).

Finally, again conflicting with the dictum in Ouellette, the significance of the timing of a victim’s report of the incident traditionally was a matter to be considered by the jury, exclusively, in evaluating the victim’s credibility. If the victim’s report had been immediate as would be expected after “such an outrage has been committed on [his or] her person”; State v. DeWolf, 8 Conn. 93, 100 (1830); the jury might logically infer that the victim’s trial testimony more probably was truthful. A delayed report, while suggesting a contrary inference, was not subject to exclusion on the ground that it had not been made at a “natural” time. The state was entitled to introduce evidence of the delayed report and the victim was permitted to counteract the negative implications of the delay by giving reasons for it that the jury might find understandable. See State v. Brigandi, 186 Conn. 521, 529, 442 A.2d 927 (1982) (“reason that the victim did not tell the police initially was . . . a fact for the jury to pass upon with all the other evidence”); State v. Byrne, 47 Conn. 465, 466 (1880). In other words: “Whatever delay took place between the time of the attack and the time the victim first told witnesses of it does not affect the admissibility of the evidence, but merely presents a question of fact for the trier as to the weight to be given it.” State v. Brigandi, supra; see State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946).

We have stated that “the necessity of certainty and continuity in the law dictates that ‘a court should overrule its own precedents for only the most compelling reasons. . . .’ ” State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984). While it may well be that the analytical underpinnings of our constancy of accusation doctrine resemble those of the hearsay exception for prior consistent statements to rebut a suggestion of recent fabrication, we do not find that similarity, nor has the defendant offered any additional reason, sufficiently compelling to warrant a restriction of the doctrine iti the manner suggested by Ouellette. Constancy evidence is properly viewed as a peculiar species of evidence, and, rather than further attempt to conform our traditionally liberal doctrine to evidentiary rules designed for other classes of evidence, we leave any curtailment of the doctrine to future cases where compelling reasons presented by litigants might persuade us to do so. See State v. Dabkowski, 199 Conn. 193, 203, 506 A.2d 118 (1986). We are satisfied that the doctrine in its form prior to Ouellette is “rationally and socially adapted to ascertaining the truth”; id., 202 n.9; and advantageously provides criminal defendants with “a fertile field for cross-examination of a complainant with reference to ascertaining where the truth lies.” Id., 202; see State v. Kinney, supra, 156.

Accordingly, we discard the dictum in Ouellette to the extent that it pertains to constancy of accusation evidence, and we reaffirm our precedents prior to Ouellette that leave the evaluation of the timing of a victim’s statements and any “naturalness” thereof in the hands of the jury. The defendant’s challenge to the court’s failure to make a preliminary finding that the victim’s statements to Sutherland, Dwyer and Miranda had been made at a “natural” time must therefore be rejected.

II

The defendant next argues that the court improperly-refused to restrict the number of constancy of accusation witnesses and the victim’s testimony regarding the number of persons to whom she had reported the incident due to the “prejudicial effect” of the testimony. The defendant maintains that the court’s refusal, to his prejudice, allowed the state to “bombard” the jury with the testimony of the “sheer number” of witnesses who related the victim’s reports and the victim’s testimony identifying the “sheer number” of people to whom she had reported the incident. In addition, the defendant contends that Miranda’s testimony was “particularly harmful” because she gave “the only detailed account” of the incident as described to her by the victim. We are unpersuaded.

A trial court’s broad discretion to exclude evidence more prejudicially cumulative than probative certainly encompasses the power to limit the number of witnesses who may be called for a particular purpose. See State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). “In excluding evidence on the ground that it would be only ‘cumulative,’ care must be taken not to exclude merely because of an overlap with evidence previously received. To the extent that evidence presents new matter, it is obviously not cumulative with evidence previously received.” (Emphasis in original.) 2 D. Louisell & C. Mueller, Federal Evidence § 128. In the present case, each item of the state’s constancy evidence, while overlapping in the sense that it related to the same incident, pertained to a different statement that the victim had made to a different person at a different point in time. Rather than prejudicially cumulative, therefore, the evidence covered new matter by demonstrating, as was its relevant purpose, that the victim previously had reported the incident she described on direct examination in a constant and consistent fashion.

With respect to Miranda’s testimony providing the details of the victim’s report to her, the court minimized any appreciable danger that the jury might treat her testimony as substantive evidence by giving an appropriate instruction as to its limited corroborative use. The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions. State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991). Finding no such indication in the record we conclude that the court properly refused to exclude or restrict the volume of the state’s constancy of accusation evidence as more prejudicial than probative.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1985)] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       General Statutes (Rev. to 1985) § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-92 provides in pertinent part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . or (C) terrorize him or a third person . . . .”

       The victim testified out of the presence of the jury that she had not immediately informed anyone of the incident because she was young, frightened of the defendant and because she “didn’t know what to do.” In particular, she had not notified her mother due to her belief that her mother would blame her. Emotional upset had prompted her first to reveal the incident to her ex-boyfriend, though she could not recall the date of that revelation. After a school lecture and film on the subject of sexual assault on January 8,1987, the victim had spoken about the incident to the lecturer, Cindy Howell, because she had “needed to tell somebody what happened.” The victim had related the incident to Katz on the following day at a meeting attended by her mother. Thereafter, the victim had informed Dwyer of the incident in connection with counselling sessions during October of 1987. She then had described the incident to Sutherland on a date she could not remember. The victim had officially reported the incident to Miranda on October 14, 1987.

       Sutherland testified that on a date uncertain, the victim had told him “a little story that she was raped. . . . [b]y the [defendant. . . .She was at some fan gallery or something and she was raped. . . . She really didn’t go into any details.” Dwyer testified that the victim had informed her that she had been “forced into a vacant building and assaulted ... by [the defendant],” and that “she knew him . . . from I believe living in the house where she lived . . . and she was walking with him when she was going home.” Katz testified that the victim had come to her “with a complaint of being sexually assaulted’ ’ by the defendant, and that the victim had told her that the incident had taken place in or near “the fan gallery,” that “she knew this boy . . . she had gone off with him I guess knowing him and then he took her into this building unwillingly.” Miranda testified that she had interviewed the victim in connection with the victim’s sexual assault complaint against the defendant and gave a detailed account of the incident as the victim had described it to her.

       As for the second of these preliminary findings, the Ouellette court stated that “[i]n a sexual assault case, however, when the evidence concerns the crime charged, the trial court may presume . . . that the victim is impeached by a suggestion of recent contrivance.” State v. Ouellette, 190 Conn. 84, 99, 459 A.2d 1005 (1983).

       That rationale was stated as follows: “ ‘ “If a female testifies that such an outrage has been committed on her person, an [i]nquiry is, at once, suggested, why it was not communicated to her . . . friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it ... . [S]uch a course [of conduct] would be natural if the crime had been committed, but very unnatural if it had not been.” ’ ” State v. Ouellette, 190 Conn. 84, 99, 459 A.2d 1005 (1983), quoting State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945).

       We do not consider State v. Pollitt, 205 Conn. 61, 77,530 A.2d 155 (1987), our sole decision that acknowledged, but did not examine the foundation or effect of the dictum in State v. Ouellette, 190 Conn. 84, 98-99, 459 A.2d 1005 (1983), to have infused that dictum with precedential value.

       In this connection, we have stated that: “It is reasonable to require that the victim, when she testifies, name those to whom she made complaint where she specifically knew those persons prior to the incident such as a relative, close friend, etc. It would be less reasonable to expect the victim, when she testifies, to name specifically a police officer, doctor, nurse, etc. whom she did not know before the incident but to whom she did, in fact, make complaint. Nevertheless, as to the latter circumstance, it is a preliminary question of fact for the trial court to decide whether any such proffered witness was the person to whom complaint was allegedly made.” State v. Brice, 186 Conn. 449, 454 n.4, 442 A.2d 906 (1982).

       As this court explained in State v. Sebastian, 81 Conn. 1, 6, 69 A. 1054 (1908), “it is natural to suppose that the sufferer would promptly inform those standing closest to her of the indignity and shame to which she had been subjected. A failure to make complaint, within a reasonable time, created a strong presumption at common law that there was no ground for making one.”

       A delayed statement undermined the victim’s credibility because it was considered “obvious that for one who claims to have been ravished to have long kept silence about it, would, if unexplained, weaken the force of any testimony that she might give in court, in support of a prosecution for such an offense.” State v. Sebastian, 81 Conn. 1, 6, 69 A. 1054 (1908).

       The defendant further contends that the court “failed to consider and weigh the prejudicial impact” of permitting the state to introduce the testimony of “six” constancy witnesses into evidence. Because we conclude that the testimony of the four witnesses called by the state at trial was not more prejudicial than probative, any purported failure of the court to consider the prejudicial impact of their testimony was harmless.

       The court instructed the jury that the state’s constancy evidence was “admitted solely to corroborate . . . the testimony of [the victim] in Court. And it is to be considered by you only in determining the weight and credibility you will afford to her testimony.”


author: Callahan, J.

text:
    State of Connecticut v. James Diggs
    (13876)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued March 26
    decision released June 18, 1991

      G. Douglas Nash, public defender, with whom, on the brief, was Amoldo Granados, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, James Diggs, was charged in an information with murder in violation of General Statutes § 53a-54a (a). He was convicted by a jury of the crime charged and was sentenced by the trial court to a term of imprisonment of forty-six years.

The charge arose out of an incident that occurred shortly after 1 o’clock in the morning on October 2, 1988, in front of 541 Gregory Street, Bridgeport. During an argument, the defendant, then sixteen years old, shot and killed the victim, twenty-six year old Frank Davis, with a single shot from a sawed-off .22 caliber rifle. The defendant admitted killing Davis but claimed that the killing was justified because he had acted in self-defense.

I

The defendant first claims that his conviction should be reversed because the trial court, although it instructed the jury on the portion of General Statutes § 53a-19 (c) (2) that states that one is not justified in using physical force in defense of his person if he is the initial aggressor, failed to give the jury the requested instruction that, even if it found that the defendant had been the initial aggressor in his confrontation with the victim, his use of physical force would have been justified if he had withdrawn from the encounter and had effectively communicated his intent to do so, but the victim had, nonetheless, continued the use of deadly physical force or had threatened the continued use of deadly physical force against him. The defendant concedes that the jury could have found from the evidence that he was the initial aggressor in his encounter with the victim. He contends, however, that there was also evidence that he had withdrawn and had communicated effectively his intent to withdraw but the victim had continued the use or had threatened the continued use of deadly physical force. The defendant claims, therefore, that he was entitled to a charge encompassing the whole of § 53a-19 (c) (2), including the exception to criminal liability that allows even an initial aggressor to claim self-defense if he withdraws from the encounter and effectively communicates that intention to his victim. We disagree.

The conflict between the defendant and the victim was ignited when the victim, after parking his car on Gregory Street, approached a group of youths, including the defendant, that had gathered around the front porch of 541 Gregory Street. At that time words were exchanged between the victim and the defendant. Thereafter, the defendant jumped from the porch and retrieved the .22 caliber rifle that the defendant knew had been placed under the porch earlier in the evening by a friend. The defendant then confronted the victim with the rifle. The victim’s cousin, Rayford Scott, who had come to Gregory Street with the victim, crossed the street and attempted to defuse an argument that had clearly gotten out of hand. The victim and the defendant continued to argue and to threaten, however, and the victim threw a punch at the defendant. There is conflicting evidence as to whether the punch landed on the defendant. Nevertheless, after the punch was thrown, the defendant shot the victim. The single bullet pierced the victim’s right side, striking his heart and lungs and causing massive internal bleeding and death.

When considering a claim of failure to deliver a requested charge, we adopt the version of the facts most favorable to the defendant that the evidence reasonably would support. State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990); State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986); State v. Arroyo, 181 Conn. 426, 430-31, 435 A.2d 967 (1980); State v. Tyson, 23 Conn. App. 28, 33, 579 A.2d 1083 (1990). The court, however, has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding. State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987); Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982); Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933); Drummond v. Hussey, 24 Conn. App. 247, 248, 588 A.2d 223 (1991).

An instruction as to the effect of an aggressor withdrawing from an encounter and communicating the intent to withdraw is only necessary where the particular factual situation supports such an instruction. People v. Peoples, 75 Mich. App. 616, 624-25, 255 N.W.2d 707 (1977). Further, the doctrine of communicated withdrawal may not be invoked unless the aggressor’s intent to withdraw is clearly made known to his victim. Melchior v. Jago, 723 F.2d 486, 493 (6th Cir. 1983), cert. denied, 466 U.S. 952, 104 S. Ct. 2156, 80 L. Ed. 2d 542 (1984); People v. Kerley, 95 Mich. App. 74, 83, 289 N.W.2d 883 (1980), appeal denied, 411 Mich. 868, 312 N.W.2d 380 (1981); Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986). “In other words, the initial aggressor must withdraw or abandon the conflict in such a way that the fact of withdrawal is perceived by his opponent, so that his adversary is aware that he is no longer in any danger from the original aggressor.” 3 Am. Jur. 2d 712, Proof of Facts § 4.

We have conducted a thorough search of the transcript and conclude that the record contains no evidence that reasonably would support a finding that the defendant had withdrawn from the encounter with the victim or had clearly manifested his intention to do so. In his brief the defendant argues that his admonishment to Scott, the victim’s cousin, to “tell your cousin to get out of my face” and “come and get your cousin” and warning the victim “to get back before I shoot,” constituted an effective communication of the defendant’s intent to withdraw from the encounter. He also claims that his walking across the small front lawn of 541 Gregory Street away from the house constituted a withdrawal and an effective communication thereof although no words were spoken. We disagree.

All of the defendant’s communications of an alleged intent to withdraw from the conflict with the victim took place while the defendant kept the rifle in his hands and trained on the victim. “ ‘As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault.’ ” State v. Huemphreus, 270 N.W.2d 457, 462 (Iowa 1978), quoting 40 C.J.S., Homicide § 121; Bellcourt v. State, supra; see State v. Muhammad, 757 S.W.2d 641, 643 (Mo. App. 1988) (“Go on, go on leave me alone” insufficient to support withdrawal instruction). The defendant’s communications were more in keeping with a demand that the victim withdraw in order to avoid being shot than an expression of the defendant’s intent to break off and withdraw from the encounter himself.

It is telling, moreover, that the defendant at the conclusion of the trial did not mention the court’s failure to charge § 53a-19 (c) (2) in its entirety in his motions for acquittal and for a new trial, nor is it mentioned specifically in his preliminary statement of issues on appeal. The issue rather appears to be one that received little attention at trial because of the lack of evidence indicating withdrawal or the communication of an intent to withdraw, but, with the benefit of hindsight, was dredged up by appellate counsel painstakingly trawling through the record for possible errors. In our view, the evidence in this case simply does not support a communicated withdrawal instruction.

II

The defendant next claims that the trial court improperly refused to give a requested charge that the jury had to be unanimous in its decision concerning certain statutory exceptions to his defense of self-defense as justification for his killing of the victim. The trial court informed the jury that the defendant was not justified in using deadly physical force in self-defense if he knew he could have avoided the necessity of using such force with complete safety by retreating or if he was the initial aggressor. See General Statutes § 53a-19 (b) (1) and (c) (2). The court did not deliver an instruction requested by the defendant that in order to find him guilty, the jury must agree unanimously on which of the exceptions to justification for the use of deadly force applied. In other words, the defendant claims that one half of the jurors might have found that he knew he could have retreated with complete safety and therefore was not permitted to use deadly physical force, while the other half might have found that he was the initial aggressor and therefore was not permitted to use force in his own defense. The trial court did deliver a general unanimity charge instructing the jury that its verdict must be unanimous. The defendant claims that the general unanimity instruction was insufficient and that the trial court’s charge violated his right to a unanimous verdict. We disagree.

As we noted in State v. Bailey, 209 Conn. 322, 335-36, 551 A.2d 1206 (1988), we have “serious reservation[s] about the applicability of the unanimity requirement to self-defense . . . .” As in Bailey, the defendant here is unable to provide us with any authority for the proposition that a unanimity instruction was required as to the factual basis for the jury’s rejection of his self-defense claim, nor have we been able to locate any. A determination of that issue, however, is not necessary for the resolution of the instant case.

“A general instruction on unanimity is sufficient to insure that ... a unanimous verdict is reached; [United States v. Peterson, 768 F.2d 64, 67-68 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985)]; United States v. Murray, 618 F.2d 892, 898-99 (2d Cir. 1980); [United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert. denied, 425 U.S. 934, 96 S. Ct. 1663, 48 L. Ed. 2d 175 (1976)]; except in cases where the complexity of the evidence or other factors create a genuine danger of jury confusion. United States v. Payseno, 782 F.2d 832, 835-37 (9th Cir. 1986).” United States v. Schiff, 801 F.2d 108, 114-15 (2d Cir. 1986), cert. denied, 480 U.S. 945, 107 S. Ct. 1603, 94 L. Ed. 2d 789 (1987). “Moreover, a number of courts have acknowledged the need to avoid unwarranted multiplication of specific unanimity instructions by requiring such a charge only in ‘cases where the complexity of the evidence or other factors create a genuine danger of jury confusion.’ ” State v. Bailey, supra, 337.

In the present case, the encounter between the victim and the defendant was a single incident, which was brief and took place within a small area. While the testimony bearing on the defendant’s claim of self-defense varied somewhat from witness to witness, it certainly was not complicated and the trial was relatively short. We do not perceive in the record a complexity of evidence or any other factors creating jury confusion and a consequent need for a specific unanimity charge. See United States v. Payseno, supra, 836; State v. Russell, 22 Conn. App. 440, 448, 577 A.2d 1107 (1990). We are, therefore, not persuaded that the trial court was required to deliver such an instruction concerning the statutory exemptions to the defendant’s self-defense claim.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides: “murder, (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 a 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.”

       The rifle, which had been a semiautomatic, had been altered so that it fired only a single shot because, in reducing its overall length, its tube magazine had been removed.

       “[General Statutes] Sec. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       The defendant did list as a preliminary issue “whether or not the trial court erred in its charge to the jury.”

       See footnote 3, supra.


author: F. X. Hennessy, J.

text:
    Winchester Woods Associates v. Planning and Zoning Commission of the Town of Madison
    (14197)
    Peters, C. J., Callahan, Glass, Borden and F. X. Hennessy, Js.

      Argued March 19
    decision released June 18, 1991

      Philip N. Costello, town attorney, for the appellant (defendant).

      John W. Barnett, for the appellee (plaintiff).
   F. X. Hennessy, J.

This appeal arises out of the deci-

sion of the defendant planning and zoning commission of the town of Madison (commission) to deny the application of the plaintiff, Winchester Woods Associates, for a final approval of a resubdivision of the plaintiffs property. The plaintiff appealed the commission’s decision to the Superior Court. The court, after a hearing, sustained the appeal and ordered the commission to issue to the plaintiff, upon demand, a certificate of approval of the plan of resubdivision. From that decision, the commission appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We now reverse the judgment of the trial court.

The trial court found the following facts. In February, 1989, the plaintiffs filed an application with the commission for final resubdivision of Lots 10 and 11 in the plaintiffs Dream Lake Subdivision. Upon the commission’s denial of the application, the plaintiff appealed to Superior Court, and that appeal has not yet been decided. On May 31,1989, the plaintiff filed another application with the commission requesting final approval of a resubdivision of the same property as that involved in the February, 1989 application. At its next regularly scheduled meeting on June 15,1989, the commission voted not to accept the application, citing as its reason the provision of General Statutes § 8-26 that “[n]o planning commission shall be required to consider the application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission.” Although the plaintiff’s application appeared on the commission’s agenda under the heading “Application For Which Public Hearing May Not Be Waived,” no public hearing was either noticed or held.

The plaintiff’s application of May 31,1989, appeared on the agenda for the commission’s August 17, 1989 meeting under the heading “Applications for Which Public Hearing is Not Required or May be Waived.” Again the commission neither noticed nor held a public hearing on the application. At the August 17 meeting, the commission voted to deny the application on the ground that “[t]his is the second application on the same piece of property; the first application is pending in litigation; the Commission wishes to preclude automatic approval of the second application due to lack of action within the 65-day period.”

The plaintiff filed an appeal of the commission’s decision with the Superior Court on September 27, 1989. Following a hearing on the issue of aggrievement, the trial court found the plaintiff to be aggrieved by the decision of the commission for the purpose of filing the appeal. The trial court sustained the plaintiff’s appeal, concluding that the commission was required to consider the plaintiff’s application and that its action of not accepting the application was improper and an abuse of its discretion. The trial court also concluded that the commission had not acted upon the plaintiff’s May 31,1989 application within the sixty-five day time period prescribed by § 8-26 and therefore ordered the commission to issue to the plaintiff, upon demand, a certificate of approval of its resubdivision plan.

In its appeal to this court, the commission claims that the trial court mistakenly concluded that: (1) the plaintiff was an aggrieved party with standing to maintain its appeal; (2) no application was pending before the commission within the meaning of § 8-26; (3) the sixty-five day deadline for action by the commission on the plaintiff’s application had run from the submission of the application and not from the time of a public hearing; (4) the denial by the commission was not action on the plaintiff’s application within the meaning of General Statutes § 8-26d; and (5) the plaintiff was entitled to a certificate of approval of the application, although no public hearing had ever been held on that application as required by § 8-26. While we agree with the trial court’s conclusions as to the first and third claims, we disagree with its remaining conclusions of law and with its order directing the commission to issue a certificate of approval to the plaintiff.

I

The commission first contends that the plaintiff failed to meet its burden of proving that it is aggrieved by the decision of the commission. Before we address this claim, however, we consider the plaintiffs argument that this court should not consider the issue of aggrievement because the commission failed to raise that issue distinctly in the trial court as required by Practice Book § 4185. We have previously responded to this argument and stated that because aggrievement is a jurisdictional question, it must be resolved even though the issue was not raised below. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984).

“ ‘The fundamental test by which the status of aggrievement . . . is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974).” Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 730, 573 A.2d 736 (1990); State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987). “Aggrievement is an issue of fact . . . and credibility is for the trier of the facts. . . . ‘Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . .’ ” Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 496, 400 A.2d 726 (1978).

The record reflects that at the hearing before the trial court, James A. Miessau testified that he was a partner of the plaintiff partnership and that the partnership owned Lot 10 in the Dream Lake Subdivision and had an agreement with the owners of Lot 11 for an exchange of portions of Lot 11 for portions of Lot 10 upon final approval of the resubdivision application. The thrust of the commission’s claim, for which it offers no authority, appears to be that in the absence of documentary evidence in support of Miessau’s testimony, the plaintiff did not meet its burden of showing aggrievement. This claim is without merit. Given the court’s role to find facts and weigh credibility, there was sufficient evidence before the court as to the plaintiff’s status as owner of the property for the court to conclude that the plaintiff was aggrieved. See Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968); Rogers v. Zoning Board of Appeals, 154 Conn. 484, 488, 227 A.2d 91 (1967).

II

The commission next challenges the trial court’s conclusion that on June 15, 1989, the plaintiff’s February application was no longer pending before the commission. The commission contends that the February application, although on appeal, continues to pend before it and that the commission properly exercised its discretion pursuant to § 8-26 in refusing to accept the May application at its June meeting and in denying that application at its August meeting. While we agree that the plaintiff’s February application was pending before the commission in June, we do not agree that the commission acted properly in refusing to accept the plaintiff’s May application.

In 1977, the legislature amended § 8-26; see Public Acts 1977, No. 77-545, § 3; to include the provision that “[n]o planning commission shall be required to consider an application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission.” Inherent in this provision is the requirement that the commission exercise discretion to determine, upon receipt of an application, whether that application is the same or similar to an application which has been previously filed by the applicant, whether the prior application is pending before it and whether, in light of these questions, the application should be heard.

The trial court concluded that because the language “pending before the commission” is clear and unambiguous and does not encompass a commission decision that is on appeal to the Superior Court, the commission abused its discretion in not accepting the plaintiff’s application at its June meeting. The commission argues that as long as the denial of the plaintiff’s February application was on appeal, its ultimate fate before the commission was undecided because the commission could be required to reconsider the application if the plaintiff were successful on appeal.

“A fundamental tenet of statutory construction is that ‘statutes are to be considered to give effect to the apparent intention of the lawmaking body.’ Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989). Where there is ambiguity in the statute, however, we ascertain the actual intent by looking to the language of the statute itself, its legislative history, the circumstances surrounding its enactment and its purpose. Id.; Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

Because we agree with the commission that the language “pending before the commission” could logically be construed to include a commission decision on appeal to the Superior Court, we conclude that that language creates an ambiguity such that the legislative intent is not readily apparent. We therefore broaden our search for the legislative intent.

The legislative history of Public Acts 1977, No. 77-545 indicates that the portion of Substitute House Bill 7988 that added the language that we now must interpret was intended to address the problem of multiple subdivision applications to planning commissions for the same parcel of land. On the floor of the House of Representatives, Representative Janet Polinsky stated that “[i]t has come to our attention . . . that some developers [use] numerous submittal[s] of subdivision applications on the same site with substantially the same plans to harass planning commissions and this problem is addressed in this portion of the bill.” 20 H.R. Proc., Pt. 6, 1977 Sess., p. 2414.

Although statements made on the floor of the legislature are not controlling on statutory interpretation, we may take judicial notice of those statements, which are strong indications of legislative intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195 n.8, 530 A.2d 171 (1987); Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987); Verrastro v. Sivertsen, supra, 223 n.9. To interpret the language “pending before the commission” to exclude a decision of the commission on appeal would defeat the purpose of the amendatory language, which was intended to confer discretion on the commission not to accept a second substantially similar application while the outcome of a prior application had not been finally resolved. A literal reading of the statute, by contrast, would permit a developer to file repeated applications proposing essentially the same plans for the same site, to take appeals from each adverse decision, and thus to impose unwarranted but possibly significant administrative and legal burdens on planning and zoning commissions. Also, such a literal reading would unduly confine the commission’s discretion to reject a second application only to those situations where a prior application had been submitted to but was not acted upon by the commission. Because this interpretation would circumvent the legislative purpose, we construe “pending before the commission” as used in § 8-26 to include commission decisions on appeal to the Superior Court.

The discretion to be exercised by the commission pursuant to § 8-26 in determining whether to accept a second application for consideration is, however, not unlimited. The sole reason offered by the commission for not accepting the plaintiff’s May application at its June meeting was a reference to the provision of § 8-26 that a commission is not required to consider an application for approval of a subdivision while another application for subdivision of the same or substantially the same parcel is pending before the commission. Given the legislative purpose of the amendatory language to § 8-26, which we have outlined above, we conclude that the commission’s denial of the plaintiff’s application, without any consideration of whether that application differed substantively from the plaintiff’s February application, was an abuse of its discretion.

Ill

The commission’s third, fourth and fifth claims arise out of the trial court’s application of the automatic approval provision of § 8-26 to the facts of this case. We, therefore, will address those claims together.

Under §§ 8-26 and 8-26d (b), the failure of the commission to “approve, modify and approve, or disapprove” a subdivision or resubdivision application, on which no hearing is held, within sixty-five days after receipt of such application results in the sanction of automatic approval. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682, 495 A.2d 268 (1985). Section 8-26d (c) defines the day of receipt of an application as “the day of the next regularly scheduled meeting of such commission . . . immediately following the day of submission to such . . . commission . . . or thirty-five days after submission, whichever is sooner.”

The trial court found the date of receipt for the plaintiffs application tobe June 15,1989, the day of the next regularly scheduled meeting of the commission following the submission of the application. Because no public hearing was held on the application, the court concluded, and we agree, that the commission had sixty-five days from June 15, 1989, in which to act on the application. We disagree, however, with the court’s conclusion that the commission had not acted upon the plaintiffs application for resubdivision within the time period prescribed by § 8-26 to avoid the automatic approval sanction, and with the court’s resulting order that the commission issue a certificate of approval to the plaintiff, upon demand.

At its meeting on June 15, 1989, the commission voted not to accept the plaintiff’s resubdivision application. At its meeting on August 17, 1989, the commission voted to deny the same application for the stated reasons that this was the second application on the same piece of property, the first application was pending in litigation and the commission wished to preclude the automatic approval of the second application due to lack of action within the sixty-five day period.

The commission’s vote not to accept the plaintiff’s application at its June meeting, although based upon an incomplete examination of the factors to be considered in the exercise of its discretion and therefore an abuse of that discretion, was nevertheless an action by the commission. At its August meeting, the commission, uncertain of the application of the sixty-five day rule to situations where a subdivision application has not been accepted for consideration pursuant to § 8-26, confirmed the action it had taken in June by voting to deny the May 31, 1989 application. Because the conduct of the commission at its June and August meetings was action disapproving the plaintiff’s application and was taken within the sixty-five day period prescribed by § 8-26, we conclude that the trial court improperly ordered the commission to grant to the plaintiff, upon demand, a certificate of approval. The case must be returned to the commission for consideration of the plaintiff’s application.

The judgment is reversed and the case is remanded with direction that it be returned to the commission for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       Counsel for the commission stated at oral argument before this court that the plaintiff had filed two applications for resubdivision of the same parcel prior to its application of May 31,1989, and that appeals of the denial of those applications were pending in Superior Court, Docket Nos. CV-89-0275421S and CV-89-0284702S.

       General Statutes § 8-26 provides in pertinent part: “The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application . . . within the period of time permitted under § 8-26d. . . . The failure of the commission to act thereon shall be considered as an approval . . .
      General Statutes § 8-26d (b) provides in pertinent part: “A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application.”

       “[Practice Book] Sec. 4185 (Formerly Sec. 3063). 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.”

       At the hearing on aggrievement, the commission conceded that the court could accept Miessau’s testimony as sufficient to establish aggrievement.

       General Statutes § 8-18 defines “subdivision” to include resubdivision.

       See footnote 2, supra.

       Relying on the language of General Statutes § 8-26d (b), the trial court rejected the commission’s argument that because General Statutes § 8-26 states that “[n]o plan of resubdivision shall be acted upon by the commission without a public hearing,” the sixty-five days does not and cannot begin to run until after the public hearing.

       The minutes of the commission’s August 17,1989 meeting indicate the commission’s uncertainty as to whether the sixty-five day rule applies to resubdivision applications that have not been accepted: “The Chairman indicated this application was presented at the June meeting and the Commission did not accept it then because there is pending litigation on the same property. Atty. [Philip] Costello, Town Counsel, indicated the previous application for resubdivision was denied and is currently pending in Superior Court. This current application was subsequently filed. Under Section 8-26 of the Connecticut General Statutes, the Planning and Zoning Commission is not required to hear the newest application for the same parcel. The Commission Chairman asked Atty. Costello to determine if there is any jeopardy to the Commission for failure to act under the 65-day rule since the newest application was refused and the possibility there would be an automatic approval granted the second application. Atty. Costello indicated no court decisions of record discuss that possibility. In conclusion, he said, it might be wise to put the matter on the agenda and suggest taking a similar action to give the Planning and Zoning Commission a backup of its June intention. The action of denying it would constitute action rather than inaction during the 65-day period.”