author: Glass, J.

text:
    Arthur Golab v. City of New Britain et al.
    (13098)
    Healey, Shea, Callahan, Santaniello and Glass, Js.
    Argued June 11
    decision released August 18, 1987

      Donald E. Shevchuk, for the appellant (plaintiff).

      JosephE. Skelly, Jr., for the appellees (defendants).
   Glass, J.

The dispositive issue in this appeal is whether the period of time during which police officer Arthur Golab, the plaintiff, had been placed under suspension, prior to being formally dismissed, constituted service for the purpose of determining his eligibility to receive retirement benefits. Golab sought a writ of mandamus compelling the defendants, the city of New Britain (city) and the board of trustees of the policemen’s pension fund of New Britain (board), to grant his application for retirement benefits. After a trial to the court, judgment was rendered for the defendants, from which the plaintiff has appealed. We find no error.

I

The parties have stipulated to the following facts: On January 28,1958, Golab became a supernumerary police officer in the New Britain police department, and began employment as a regular police officer on February 7, 1959. On December 3, 1966, he was promoted to the position of police sergeant and on November 26, 1973, he was promoted to the position of police lieutenant. Golab subsequently admitted paying the sums of $500 and $3500 for his promotions to sergeant and lieutenant, respectively. On November 14,1979, he was arrested and charged with the crime of perjury in connection with his testimony before a judicial inquiry concerning the purchase of his promotions. On November 21,1979, the board of police commissioners (commissioners) suspended Golab without pay from the police department. This suspension was to remain in effect until the first regularly scheduled meeting of the commissioners following the ultimate disposition of the perjury charge. During the suspension, the city continued to provide Golab with health insurance benefits, although he was designated as being under suspension on the police department daily roster. During the period of suspension, however, Golab did not pay any assessments to the retirement pension fund.

On February 26, 1983, Golab, while still under suspension, submitted a written request for retirement to the commissioners. On April 27,1983, he pleaded guilty to the charge of hindering prosecution in the second degree in violation of General Statutes §§ 53a-165 (4) and 53a-167. On June 14,1983, the commissioners held a disciplinary hearing to consider Golab’s admissions that he had purchased his promotions to sergeant and lieutenant. The commissioners concluded that Golab, by purchasing his promotions, had violated the rules of the New Britain civil service commission. Because of this conclusion, he was discharged from the police department effective June 14,1983. The commissioners then referred the question of Golab’s eligibility for retirement benefits to the board. On July 12, 1983, almost one month after his discharge, Golab submitted a written clarification of his retirement request, specifically requesting retirement at the rank of patrolman. His request for retirement benefits was denied by the board.

After the board’s denial, Golab brought an action seeking a writ of mandamus compelling the city and the board to grant his application for retirement benefits, claiming that under the charter of the city of New Britain he was entitled to the benefits. Based on these underlying facts, the trial court denied his prayer for a writ of mandamus. Reasoning that Golab, by purchasing his two promotions, had violated the rules of the civil service commission and had thereby “perpetrated fraud against the City,” the court concluded that Golab was precluded from seeking a writ of mandamus because of the equitable doctrine of “unclean hands,” and because he had failed to prove that he had a clear legal right to such relief.

II

On appeal, Golab claims that the trial court erred in denying his prayer for a writ of mandamus because of the doctrine of “unclean hands” and because he had failed to prove that he had a clear legal right to such a remedy.

Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. Beccia v. Waterbury, 185 Conn. 445, 453, 441 A.2d 131 (1981). “It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. Chesebro v. Babcock, 59 Conn. 213, 217, 22 A. 145 [1890]; High, Extraordinary Legal Remedies (3d Ed.), pp. 10, 13. That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks.” State ex rel. Donahue v. Holbrook, 136 Conn. 691, 693, 73 A.2d 924 (1950); Pape v. McKinney, 170 Conn. 588, 595, 368 A.2d 28 (1976). The writ is proper only when “(1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” Bahramian v. Papandrea, 184 Conn. 1, 3, 440 A.2d 777 (1981). Thus, in order for Golab to be entitled to the writ, one of the essential conditions that he must establish is that he had a clear legal right to retirement benefits.

In order to qualify for retirement benefits, Golab must have served in the police department for at least twenty-five years. Section 1958 of the New Britain city charter provides in pertinent part that: “Each regular member of the police department of said city who shall have served in said department 25 years shall upon his written request be permanently retired on half pay.” (Emphasis added.) Golab was hired as a supernumerary police officer on January 28, 1958. He remained a supernumerary officer until February 7, 1959, at which time he became a regular police officer. He continued to serve as a police officer without interruption until November 21,1979, when he was suspended from his position. As of the date of his suspension, Golab had served twenty years, nine months and fourteen days in the New Britain police department. After adding his supernumerary service credit time of two years, Golab’s total service credit, as of November 21,1979, equaled twenty-two years, nine months and fourteen days. As of the date of suspension, Golab was two years, two months and sixteen days short of the twenty-five years of police service required to qualify for retirement benefits. Golab’s suspension, which lasted from November 21,1979, to June 14,1983, when he was ultimately discharged, totaled three years, six months and twenty-three days. Thus, in order to meet the requisite twenty-five years of service, part of Golab’s disciplinary suspension time would have to be added to his previous service time.

Golab claims that because he had been a member of the police department during his disciplinary suspension, the time during which he had been suspended should be added to his time of service prior to the suspension. Specifically, he argues that § 1958 of the charter “imposes on the defendants a mandatory, non-discretionary duty that a twenty-five year member [of the police department] ‘shall, upon his written request, be permanently retired on half pay.’ ” We disagree.

Although we have not had the occasion to distinguish between “service” and “membership” for the purpose of computing length of service and determining a person’s eligibility to receive retirement benefits, this distinction has been made in other jurisdictions. In State ex rel. Johnson v. Buchanan, 254 Wis. 261, 35 N.W.2d 897 (1949), a police officer was suspended eight times without pay, totaling 213 days, during the twenty-two years of his employment. The court held that the 213 days of suspension time could not be included in his length of service computation for pension purposes. “A member of the department who has by reason of his misconduct been suspended from duty without pay is in no position to claim that he has served as a member of that department during the period of his suspension.” Id., 264. Similarly, the court in Stamper v. Los Angeles, 80 Cal. App. 2d 242,181 P.2d 687 (1947), held that a policeman was not entitled to credit periods during which he was absent from duty towards the “aggregate service” required for pension purposes. “There is no denying that when a police officer is appointed and takes the oath as such he remains a policeman until he dies, resigns or otherwise terminates his official connection with the department. But he is not in ‘service’ and his aggregate service is not accumulating unless he performs service.” Id., 244; accord Douglas v. Teachers’Retirement Board, 40 Misc. 2d 870, 872, 244 N.Y.S.2d 173 (1963) (school teacher’s suspension time not included in length of service computation), order affirmed, 20 App. Div. 2d 851, 247 N.Y.S.2d 994, appeal denied, 14 N.Y.2d 485, 200 N.E.2d 219, 251 N.Y.S.2d 1025 (1964); see generally 3 E. McQuillin, Municipal Corporations (3d Ed. 1982) § 12.150, p. 598 (usually, time in which an officer is absent from duty is not counted in computing his aggregate service time).

Golab nonetheless argues that as a member of the police department, he is entitled, as a matter of right, to retirement benefits irrespective of any time he spent under suspension. In doing so, Golab relies primarily on State ex rel. Kirby v. Board of Fire Commissioners, 129 Conn. 419, 29 A.2d 452 (1942). We, however, find Golab's reliance on Kirby inapposite. In State ex rel. Kirby v. Board of Fire Commissioners, supra, 422, the issue presented to this court was whether a fireman was entitled to retirement benefits as a matter of right although he had been placed under suspension. We held that the Hartford city charter provisions regarding retirement benefits provided that the board must retire any member of the fire department who met the requisite qualifications. Moreover, we concluded, that those provisions did not except from membership persons who are employees but who are under suspension for charges of misconduct. Id., 424. As we stated, the suspension had not “even temporarily deprived [Kirby] of all his rights and privileges as a member of the department. He still continued to be a member of the department.” Id., 423.

Kirby, however, is distinguishable from the present case in one important respect. Unlike Golab, Kirby, at the time he made his request for retirement, had served the requisite number of years to be eligible to receive retirement benefits. Id., 425-26. Therefore, although we held that the suspension did not affect Kirby’s membership in the fire department, we did not address whether the suspension affected the computation of his length of service in the department because he had already served the requisite number of years. We did note, however, that “[i]t is to be presumed therefore that the order of suspension was the usual one and suspended [Kirby] only from duty and deprived him of his pay. This would mean simply that temporarily he was prevented from rendering services as a member of the department . . . .” (Emphasis added.) Id., 423.

Significantly, although Golab had been a member of the New Britain police department while under suspension, he did not work or render services during that time. Section 1958 of the New Britain city charter mandates that, in order for a police officer to be eligible for retirement benefits, he must not only be a member of the police department for twenty-five years, but must also serve in the department for that period of time. Accordingly, we hold that since Golab did not work while under suspension, that time cannot be added to his period of service prior to the time he had been suspended for the purpose of computing his length of service. Thus, because he did not serve in the police department for twenty-five years, Golab failed to establish an essential condition for a writ of mandamus, namely, that he had a clear legal right to retirement benefits. Bahramian v. Papandrea, supra.

Golab also contends that the city and the board, by denying him retirement benefits, violated the equal protection clause of the fourteenth amendment to the United States constitution and article first, § 1, of the Connecticut constitution. He apparently claims that, because another person who had also purchased a promotion has received retirement benefits while he has not, he has been denied equal protection of the laws. Golab relies upon the circumstances relating to the retirement of Robert J. Hackett, a lieutenant in the New Britain fire department, as set forth in the opinion of the Appellate Court in Hackett v. New Britain, 2 Conn. App. 225, 477 A.2d 148, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). Hackett had been permitted to retire on April 29,1980, with a pension of $13,250.76 based on his salary after achieving the position of deputy fire chief, subject to review in the event that it should later be established that he had illegally been promoted to that rank. After his conviction of numerous felonies relating to his role in fixing certain promotional examinations, the board of trustees of the New Britain firemen’s pension fund found that Hackett had illegally obtained his promotion both to captain and to deputy chief. He was, however, permitted to retain a reduced pension of $7766.79, corresponding to his status as a lieutenant, a promotion he apparently had obtained legally on May 24, 1968.

Equal protection of the laws prohibits the unequal treatment of those who are similarly situated. State v. Candito, 4 Conn. App. 154,159,493 A.2d 250 (1985); see also Johnson v. Manson, 196 Conn. 309, 321-22 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061,106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). Hackett had become a full-time fireman on November 20,1950, and, at the time of his retirement had approximately thirty years of service, which was more time than necessary to qualify for retirement benefits. Golab, on the other hand, never completed the twenty-five years of service required for a pension. Unlike Hackett, he could become eligible for a pension only if a part of the period of time when he was under suspension was added to his years of prior service. Accordingly, there is little basis for Golab’s claim that no reasonable distinction can be made between him and Hackett in respect to pension eligibility.

Moreover, “[a]n equal protection claim based on unequal application of the law does not arise from conclusory allegations regarding past decisions, but rather must be established by competent evidence.” Hospital of St. Raphael v. Commission on Hospitals & Health Care, 182 Conn. 314, 321, 438 A.2d 103 (1980); see Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497, reh. denied, 321 U.S. 804, 64 S. Ct. 778, 88 L. Ed. 1090 (1944); cf. State v. Haskins, 188 Conn. 432, 474,450 A.2d 828 (1982). There must be a showing of intentional or purposeful discrimination. Snowden v. Hughes, supra; Hospital of St. Raphael v. Commission on Hospitals & Health Care, supra; cf. State v. Townsend, 167 Conn. 539, 554, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); Bianco v. Darien, 157 Conn. 548, 559-60, 254 A.2d 898 (1969). This case was tried to the court on stipulated facts. There was no allegation of discrimination and the trial court made no such finding. Additionally, on appeal, Golab has not claimed that the actions of the city and the board were the product of intentional and purposeful discrimination. Therefore, his claim of unequal protection of the laws must fail.

The trial court, in denying Golab’s application for a writ of mandamus, relied on the equitable doctrine of “unclean hands,” and thus did not consider whether his suspension time should have been calculated as part of his total service time. Since Golab did not have twenty-five years of service we need not decide whether the trial court correctly denied his application because he had “unclean hands.” “[T]his court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980). Even if we were to have concluded that the trial court based its judgment on erroneous grounds, we would properly affirm the judgment ‘if the same result is required by law.’ A&H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).” Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987). Because Golab had not completed twenty-five years of service in the New Britain police department, he had no clear legal right to retirement benefits. He therefore was not entitled to a writ of mandamus. Accordingly, we affirm the judgment of the trial court.

There is no error.

In this opinion the other justices concurred.

       “[Charter of the City of New Britain] § 1958. benefits payable; RETIREMENT AGE
      “Each regular member of the police department of said city who shall have served in said department 25 years shall, upon his written request, be permanently retired on half pay. Upon reaching the age of 60 years each regular member who has served in said department 25 years shall be retired upon his written request and 2 per cent shall be added to his retirement benefits for each additional year of service after 25 years. Upon reaching the age of 65 years, each member shall be retired on half pay regardless of his years of service, unless such service shall entitle him to greater retirement benefits.
      “Any regular member of the police department retiring on or after the first payment of the assessment against the city provided for in Section 1951 shall receive his benefits from the police benefit fund. In the event that the police benefit fund lacks sufficient funds therefor, said benefits shall be paid from the deficiency appropriation provided for in Section 1956 of the city charter. Any regular member of the police department who shall have retired prior to the first payment of the assessment against the city shall continue to receive his benefits from the deficiency appropriation provided for in Section 1956 of the city charter.”

       “[Charter of the City of New Britain] § 1962. computation of service period
      “Service as a regular policeman shall include the 2 years served as a supernumerary officer, no matter how many hours of actual duty were served.” The parties have stipulated that § 1962 has been interpreted to provide for two years of service credit toward the required twenty-five years, if the retiring officer had served as a supernumerary officer for more than one year.

       Golab also relies on the Superior Court case of Banulski v. New Britain Board of Police Commissioners, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 408779 (April 25,1983). In Banulski, the trial court relied extensively on State ex rel. Kirby v. Board of Fire Commissioners, 129 Conn. 419, 29 A.2d 452 (1942), in holding that the period of suspension may be included in computing the length of service. We, however, conclude that Kirby is dissimilar to the present case and therefore do not consider Banulski to be of precedential value. Additionally, because Banulski has never reached this court, there is no need, at this time, to determine the propriety of that court’s decision.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Glenn Murray v. Raymond M. Lopes, Commissioner of Correction, et al.
    (13048)
    Healey, Shea, Callahan, Santaniello and Glass, Js.
    Argued June 11
    decision released August 18, 1987

      Robert Graziano, certified legal intern, with whom were Miriam Berkman and, on the brief, Stephen Wizner, John L. Pottenger, Jr., Sally Zanger, Robert A. Solomon and Mary A. McCarthy, for the appellant (petitioner).

      Carl J. Schuman, assistant attorney general, with whom were L. D. McCallum, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert Statchen, assistant attorney general, for the appellees (respondents).
   Callahan, J.

This is an appeal from the denial of a petition for a writ of habeas corpus challenging the calculation of the petitioner’s statutory good time credit. The petitioner has appealed from the judgment of the habeas court finding that, although statutory sentence reduction credit could be earned while confined at the Whiting Forensic Institute (Whiting), such credit could not be applied to gain early release while the petitioner was in the custody of the department of mental health pursuant to General Statutes § 17-245. We find error.

The relevant facts are undisputed. On February 6, 1985, the petitioner was arrested on a charge of risk of injury to a minor in violation of General Statutes § 53-21. He was detained prior to trial in the Bridgeport Correctional Center until June 20,1985, at which time he pleaded guilty to a substitute information charging him with the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a (a). Prior to sentencing, the trial court, Moraghan, J., pursuant to General Statutes § 17-244 (a), ordered the commissioner of mental health to conduct a mental examination of the petitioner at Whiting. Thereafter, in accordance with the report from Whiting and pursuant to § 17-245 (c), the trial court, finding the petitioner to be mentally ill and a danger to himself or others, sentenced him as follows: “[H]e is ordered committed to the custody of the commissioner of correction for a period of two years, execution of that sentence is to be suspended after he has served eighteen months. Thereafter he is placed on probation for two years. In accordance with the findings, the place of confinement since he does need the care, custody and treatment of the institute, shall be the Whiting Forensic Institute.” The petitioner’s confinement was calculated to begin on the date of sentencing, August 19, 1985, and his release was scheduled for February 19,1987. This calculation did not afford the petitioner credit for presentence jail time pursuant to General Statutes § 18-98d (a), presen-tence jail good conduct or “good time” pursuant to General Statutes § 18-98d (b), or prison good time pursuant to General Statutes § 18-7a (c). If all the foregoing statutory sentence reduction credit had been applied to the petitioner’s sentence for all the time he was confined, he would have been discharged from his confinement at Whiting on March 26, 1986.

On May 23,1986, the petitioner, while still confined at Whiting, filed a petition for a writ of habeas corpus alleging that he had a statutory right to sentence reduction credit, and alternatively, that the state’s practice of awarding good time and jail time credit to mentally ill convicts tranferred from correctional facilities to Whiting pursuant to General Statutes §§ 17-194c through 17-194g and denying such credit to those convicts initially confined at Whiting, pursuant to § 17-245, denies him equal protection of the law as guaranteed by the fourteenth amendment to the United States constitution and article first, §§ 1 and 20, of the Connecticut constitution. On July 3,1986, the habeas court released its memorandum of decision holding that although the petitioner could earn prison good time credit while confined at Whiting, he could not use the credit to gain early release. The habeas court concluded that the accumulated sentence reduction credit could only be deducted from the petitioner’s sentence, if, and when, he was transferred back to a correctional institution. The habeas court did not address the equal protection claim. This appeal followed.

The petitioner was released from Whiting pursuant to § 17-251 (b), on August 18, 1986, prior to the filing of this appeal. All parties, however, urge this court to address the issue raised in this appeal notwithstanding any mootness concerns.

“ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 429 A.2d 508 (1985); Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983); State Farm Life & Accident Assurance Co. v. Jackson, 188 Conn. 152, 156, 448 A.2d 832 (1982); CEUI v. CSEA, 183 Conn. 235, 246, 439 A.2d 321 (1981). ‘In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459,172 A.2d 190 [1961].’ Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17,19, 411 A.2d 1 (1979).” Shays v. Local Grievance Committee, 197 Conn. 566, 571-72, 499 A.2d 1158 (1985).

The petitioner in this case was not released from Whiting unconditionally. The sentencing court released him to a two year period of probation, which will not be completed until August 18, 1988. Had the habeas court applied the statutory sentence reduction credit that the petitioner claims he is entitled to, he would have been released from confinement no later than May 26,1986, and accordingly, would have completed his probation no later than May 26, 1988. Therefore, since our resolution of the issue presented in this appeal will affect his period of probation, the appeal is not moot.

General Statutes § 18-7a (c) provides: “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 . . . .” (Emphasis added.) Similarly, General Statutes § 18-98d provides: “(a) Any person who is confined to a community correctional center . . . shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility .... (b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction . . . (Emphasis added.)

In construing these provisions, the habeas court agreed with the petitioner’s argument that time spent at Whiting was “imprisonment” for purposes of §§ 18-7a and 18-98d, and thus statutory good time credit could be earned, by an individual sentenced in accordance with a conviction and confined at Whiting for custody, care and treatment pursuant to § 17-245 (c). On appeal, the petitioner does not claim error in this finding. Rather, the petitioner claims that the habeas court erred in concluding that his accumulated sentence reduction credit should be withheld until he was returned to a correctional facility. We agree with the petitioner.

We have consistently held that if a statute is clear and unambiguous, there is no room for construction. State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). Once the habeas court had determined that an individual sentenced in accordance with a conviction, and then confined at Whiting, was “imprisoned” within the meaning of General Statutes § 18-7a, it was bound to apply the law as written; Orticelli v. Powers, 197 Conn. 9, 13, 495 A.2d 1023 (1985); Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and direct the commissioner of correction to deduct from the petitioner’s sentence the statutory reduction credit he had earned. Instead, the court went beyond the plain language of these statutory provisions to conclude that the application of such credit to the sentence of a prisoner confined at Whiting would conflict with the purpose of General Statutes § 17-251, which, in conjunction with § 17-250, provides for peri-odie examinations of patients at Whiting by the director of the institute and as ordered by the court. The habeas court, reasoning that the emphasis in § 17-251 was the person’s mental condition, stated that the patient cannot be “discharged from the institute prior to the expiration of his sentence unless the court finds that his mental condition warrants such discharge. ‘Good time’ would not be a valid consideration in making such a decision. If a person were to be released prior to the expiration of his sentence on the basis of ‘good time,’ it would defeat the purpose of . . . Sec. 17-245, i.e., to provide treatment.”

We agree that jail time and good conduct credit provisions are not valid considerations in determining whether a patient at Whiting should be discharged from the institute, pursuant to General Statutes § 17-251, prior to the completion of his sentence. This provision, however, provides for discretionary release or transfer from Whiting based upon the patient’s psychiatric improvement. As the petitioner points out, the benefit of early release under § 17-251 is in addition to, not in lieu of, the statutory sentence reduction credit that automatically accrues to all prisoners, subject only to disciplinary forfeiture. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Bolling v. Manson, 345 F. Sup. 48, 50 (D. Conn. 1972); Roque v. Warden, 181 Conn. 85, 93-94, 434 A.2d 348 (1980). While it is true that the legislature in enacting a law is presumed to have intended to make one consistent body of law; Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979); the fact that there are two different statutory release systems does not compel the conclusion that they are inconsistent or conflict with each other. See Bolling v. Manson, supra, 52.

We also note that “[t]he legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing a statute in constitutional jeopardy. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985); Moscone v. Manson, [supra].” State v. Jenkins, 198 Conn. 671, 679, 504 A.2d 1053 (1986). The good conduct statutes do not on their face require that persons sentenced and then confined at Whiting pursuant to § 17-245 be treated differently with respect to the computation of their sentences from those transferred to Whiting from correctional institutions pursuant to General Statutes §§ 17-194c through 17-194g; as dictated by the present policy of the commissioner of correction. See Delafose v. Manson, 385 F. Sup. 1115, 1117 (D. Conn. 1974). It is neither rational nor sensible to allow all prisoners sentenced to a term of imprisonment, regardless of where they are confined, to earn good conduct credit, but, at the same time, withhold the application of such credit to the sentences of those prisoners confined at Whiting, pursuant to § 17-245. Therefore, we conclude that any person sentenced to a term of imprisonment should be credited with sentence reduction credit as it accrues.

There is error and the case is remanded with direction to correct the judgment in accordance with this opinion.

In this opinion the other justices concurred.

       Audrey Worrell, the commissioner of mental health, and Colin Angliker, the director of Whiting, were named as parties defendant in addition to the commissioner of correction.

       “[General Statutes] Sec. 18-7a. good conduct credit for PRISONERS. . . .
      “(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 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. 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.”

       “[General Statutes] Sec. 18-98d. presentence confinement credit FOR CONFINEMENT RESULTING FROM AN OFFENSE COMMITTED ON OR AFTER July 1,1981. (a) 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; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars.
      “(b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or 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. . . .”

       The petitioner concedes that the presentence jail time statute, General Statutes § 18-98d (a), clearly applies only to time spent in a correctional institution, and therefore would not apply to sixty days presentence time spent at Whiting while he was being examined under § 17-244. The presentence jail time credit that the petitioner is seeking is for time spent as a pretrial detainee at the Bridgeport Correctional Center, not for the pretrial time spent at 'Whiting.

       “[General Statutes] Sec. 17-245. disposition of defendant after REPORT. . . .
      “(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. If the court finds that such person is in need of outpatient psychiatric treatment, it may place him on probation on condition that he receive such treatment. If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”

       We note that although the respondents discuss the issue of whether confinement at Whiting is imprisonment for purposes of General Statutes § 18-7a, they did not file any preliminary statement of issues for the purposes of presenting this issue as an alternate ground for affirmance of the habeas court judgment. Practice Book § 4013 (a) (1). We therefore will not review the merits of this issue. See Lynch v. Davis, 181 Conn. 434, 437, 435 A.2d 977 (1980); City Council v. Hall, 180 Conn. 243,247 n.5, 429 A.2d 481 (1980).

       “[General Statutes] See. 17-251. review of cases after periodic EXAMINATIONS. DISPOSITION OF CASES; FURTHER TREATMENT, TRANSFER, leave OF absence, parole, (a) As soon as is practicable the director shall act upon the examination reports of his staff. Upon review of each report and upon consideration of what is for the benefit of the patient and for the benefit of society, the director shall determine that such patient: (1) Remain in the institute for further treatment or be transferred to some other facility under the control of the commissioner or (2), if such patient is under commitment, be granted a leave of absence or extended visit or (3), if such patient is under sentence and is eligible for parole, be granted a parole; or (4) has sufficiently improved to warrant his discharge from the institute provided if such person was sentenced and confined in the institute under section 17-245, he shall not be released except upon order of the court by which he was confined under said section, after notice to said court by the director.
      “(b) The court, upon its own motion or at the request of the defendant or his attorney, may at any time hold a hearing to determine whether such person should be discharged from the institute prior to the expiration of the maximum period of his sentence. Prior to such hearing, the institute shall file a report with the court concerning the patient’s mental condition. The court will appoint a physician specializing in psychiatry to examine the patient and report to the court. Such hearing shall be held at least once every five years. If the court determines the patient should be released, granted parole or returned to the custody of the commissioner of correction.”

       “[General Statutes] Sec. 17-250. periodic examinations of patients. Not less than once every six months the staff of the institute shall give a complete psychiatric examination to every patient confined in the institute. As used in this section and sections 17-251 to 17-254, inclusive, the word ‘patient’ means any person confined for custody, care and treatment under section 17-245. Such examination shall ascertain whether the patient is mentally ill and in need of custody, care and treatment at the institute and, in making such determination, the staff shall assemble such information and follow such procedures as are used in initial examinations by the diagnostic unit to indicate the need for custody, care and treatment. The record of the examination shall include the information required insubdi-visions (1), (2) and (3) of subsection (d) of section 17-244 and a recommendation for the future treatment of the patient examined. The record of the examination may include a recommendation for transfer of the patient or change in confinement status.”

       “[General Statutes] Sec. 17-194c. voluntary admission of inmates of correctional institutions in hospital for mental illness. The provisions of subection (a) of section 17-187 shall apply to any person who is in the custody of the commissioner of correction provided that no such person shall be received in a hospital for observation and treatment unless a physician designated by the commissioner of correction notifies in writing both the commissioner of correction and the commissioner of mental health that such person is in need of observation and treatment in a hospital for mental illness. No such person shall be confined in any such hospital for more than ten days after he has given written notice of his desire to leave, without commitment, pursuant to the provisions of section 17-178, by the court of probate for the district wherein such person is hospitalized. In the absence of such commitment, such person, if in the custody of the commissioner of correction, shall be returned to any institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated, in which case he shall be discharged.”
      “[General Statutes] Sec. 17-194d. emergency confinement in mental HOSPITAL OF INMATES OF CORRECTIONAL INSTITUTIONS. Any person who is in the custody of the commissioner of correction (1) who has suddenly become in need of care and treatment in a hospital for a psychiatric disorder, other than drug dependence, whom a physician designated by the commissioner of correction finds is a danger to himself or others or to the security or order of the institution wherein he is confined, or (2) who is in need of care and treatment for drug dependence when his condition is acute and creates a pronounced danger to himself or others or to the security or order of the institution wherein he is confined, may be confined in a hospital under an emergency certificate as hereinafter provided, for not more than fifteen days without order of any court. If a written complaint for commitment of such person has been filed in the court of probate for the district wherein such person is hospitalized prior to the expiration of such fifteen days such confinement shall be continued under such emergency certificate for an additional thirty days, without further order, not more than forty-five days in all, until the completion of the probate proceedings. At any time such person is found not to be mentally ill or acutely drug dependent, the superintendent of such hospital shall immediately return him to any institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated, in which case he shall be discharged. The emergency certificate provided for in this section shall be left with the person in charge of such hospital at the time of delivery of the person to such hospital and such certificate shall be dated not more than three days prior to its delivery, signed by a physician licensed to practice medicine and surgery under the provisions of chapter 370, who is designated by the commissioner of correction. Such certificate shall state the date of the personal examination of the person to be confined, which shall be not more than three days prior to the date of signature of the certificate, shall state the findings of the physician relative to the physical and mental condition of the person and the history of the case, if known, and shall state that it is the opinion of the physician that the person examined by him is in need of immediate care in a hospital. Prior to hospitalization under the provisions of this section, any person shall have the right to be examined by a physician of his own choosing, and if such physician concludes from his examination that such person is not mentally ill or acutely drug dependent, such person shall not be admitted to or detained in a hospital under the provisions of this section. If a mentally ill person who has been admitted to any hospital under the provisions of this section, the person in charge thereof shall cause proceedings to be instituted for the commitment, pursuant to the provisions of section 17-178, of such person in the court of probate having jurisdiction in the town where such hospital is located. Any irregularity in the temporary confinement of such person shall be deemed cured by the judge of probate ordering his commitment, and no such commitment shall be invalid because of such irregularity.”
      “[General Statutes] Sec. 17-194e. commitment proceedings for INMATES OF CORRECTIONAL INSTITUTIONS TO HOSPITALS FOR MENTAL ILLNESS. The provisions of section 17-178 shall apply to any person regarding whom proceedings for commitment are being instituted under section 17-194c or 17-194d, and to any other person in the custody of the commissioner of correction, except that if the court revokes the order of commitment, the person shall be returned to any institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated, in which case he shall be discharged.”
      “[General Statutes] Sec. 17-1941 discharge from hospital of inmates of correctional institutions. The provisions of section 17-192 shall apply to any person committed to such hospital pursuant to sections 17-194d and 17-194e, except that upon such discharge (1) the person shall be returned to any such institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated and (2) the commissioner of correction shall notify the prosecuting official of any court in which any such person has criminal charges pending against him.”
      “[General Statutes] Sec. 17-194g. hospitalization in whiting forensic INSTITUTE OF DANGEROUS OR DESPARATE INDIVIDUAL. If any person in the custody of the commissioner of correction who is brought to a hospital pursuant to the provisions of sections 17-179,17-191,17-194b to 17-194g, inclusive, 17-197 and 17-198 is a desparate or dangerous individual, such person shall be hospitalized in the Whiting Forensic Institute. If the Whiting Forensic Insitute is unable to accommodate such transfer, then such person shall remain in the custody of the commissioner at a correctional institution, there confined under appropriate care and supervision. Under no circumstances shall a mentally ill inmate requiring maximum security conditions be placed in a state hospital for the mentally ill which does not have the facilities and trained personnel to provide appropriate care and supervision for such individuals.”

       We recognize, as the habeas court did, that, in some instances, the application of sentence reduction credit may result in the release of a potentially dangerous individual who is still considered to be mentally ill. The civil commitment statutory provisions, General Statutes § 17-176 et seq., however, provide a procedure for containing the dangerously mentally ill whose criminal sentences have expired.


author: Shea, J.

text:
    State of Connecticut v. Timothy C. Shashaty
    (13061)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued June 4
    decision released August 18, 1987

      John R. Williams, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, were John J. Kelly, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Shea, J.

The Appellate Court upheld the judgment of the trial court rendered in accordance with a jury verdict finding the defendant guilty of the crimes of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), and unlawful restraint in the first degree, in violation of General Statutes § 53a-95 (a). State v. Shashaty, 8 Conn. App. 387, 513 A.2d 172 (1986). The Appellate Court ruled that the trial court had committed harmless error in (1) giving the jury an unwarranted “missing witness” instruction, and (2) permitting the state to introduce evidence of the defendant’s silence prior to his arrest but after receiving Miranda warnings. Having certified this appeal, we affirm the judgment of the Appellate Court.

Although the facts that the jury could reasonably have found are set forth in State v. Shashaty, supra, we summarize those pertinent to the issues in this appeal. On March 6,1983, the victim, an eighteen year old high school girl, attended a party at a friend’s home in Milford. The defendant, Timothy C. Shashaty, who had never met the victim before, also attended the party. At about 9 p.m. the defendant borrowed a car and drove the victim to a store to purchase cigarettes, at which time the two engaged in “just small talk.” Later in the evening, at about 11 p.m., after the victim had fought with another guest over the disappearance of the victim’s purse, the defendant spoke with the victim, who had locked herself in the bathroom, for about ten minutes. When the victim went back downstairs, the two spoke again for about thirty minutes, during which time the defendant “tried to kiss [her] a few times.” After resisting the defendant’s advances, the victim, sometime between 12:30 and 1 a.m., left the party and began to walk home.

The defendant followed the victim and caught up with her on Gulf Street. When the victim rebuffed the defendant’s demand that she walk with him, the defendant lifted her onto his shoulders and started walking down the street. In response to the victim’s screams, the defendant stated, “If I put you down, you have to let me hold your hand and walk with you.” The victim acceded to the defendant’s demand, and the two walked hand-in-hand for a while. When the victim eventually indicated that, in order to go home, she had to turn left, the defendant picked her up once again and, ignoring her screams, carried her toward the right. The defendant took the victim across New Haven Avenue to the yard of a house, dropped her to the ground, partially removed her pants, and forced her to have sexual relations with him.

Four days later, on March 10, 1983, two Milford police officers drove to the defendant’s home and “informed him that his name had come up in an investigation.” One of the officers, William Graham, asked the defendant whether he would agree to meet at the police station later in the day to discuss the matter. The defendant agreed and went to the station that afternoon. At the subsequent interview, Graham initially told the defendant that “he was not under arrest and he could leave any time. He was free to go.” The defendant then gave an oral statement accounting for his time on the night of the assault. Prior to signing the typewritten transcript of that account, the defendant was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 467-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and then signed a standard waiver form.

In his written statement of March 10, 1983, the defendant denied any involvement in the sexual assault. He stated that he had left the party at about 1 a.m. with his girlfriend, and two other guests. The defendant stated that the four had departed in a car, and that he had been taken directly home and had gone straight to bed.

The defendant was arrested on March 23,1983, after being formally charged in a two count information with the crimes of sexual assault in the first degree and unlawful restraint in the first degree. At the trial, the three persons with whom the defendant, in his March 10,1983 statement, said that he had been driven home, testified that he had remained at the party after they had departed. The party hostess testified similarly. The defendant, testifying in his own behalf, stated that he had hitchhiked home after leaving the party and that someone named Mark had picked him up and driven him home. The defendant was convicted of the crimes charged and sentenced to a total term of six years. From the Appellate Court judgment affirming the judgment of the trial court, the defendant has brought the present appeal.

I

The defendant first claims that the Appellate Court erred in ruling that the unwarranted “missing witness” instruction given by the trial court constituted harmless error. The trial court charged the jury as follows: “It is the law of the state that the failure of a party to call a witness or witnesses who are within its power to produce entitles you, the jury, to infer that the testimony of such witness or witnesses would be unfavorable to that party.

“In this case, the defendant testified that, after leaving the party ... he hitchhiked and received a ride from a person whose first name he knew to be Mark. Consistent with the rule I have just stated, you may consider the failure of the defendant to call this person.”

The missing witness instruction is commonly known as the “Secondino charge,” by virtue of this court’s holding in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The Secondino court reiterated the rule that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Id., 675; Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). “There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.” Secondino v. New Haven Gas Co., supra; see State v. Roma, 199 Conn. 110,120, 505 A.2d 717 (1986); State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986).

The state concedes that the Secondino charge given by the trial court in the present case was both unwarranted and incorrect as a matter of law. First, the state offered no evidence in support of the instruction to show that the missing witness, Mark, was available. See State v. Boyd, 178 Conn. 600, 605, 424 A.2d 279 (1979); State v. Long, 171 Conn. 18, 21, 368 A.2d 199 (1976). Second, the instruction as delivered did not adequately apprise the jury of both prongs of the Secon-dino rule. See Secondino v. New Haven Gas Co., supra, 676-77. To require a reversal, however, error must be harmful. Id., 677.

The Appellate Court reasoned that, “[bjecause the defendant’s claim of error involves only an evidentiary matter, and not the violation of a constitutional right, the burden of proving the harmfulness of the charge rests upon the defendant.” State v. Shashaty, supra, 391-92. In this appeal the defendant suggests that the Secondino charge, “even if otherwise proper under local rules of evidence,” implicates constitutional rights because “it violates the presumption of innocence and shifts the burden of proof from the prosecution to the defendant.” This court, however, has held to the contrary. See State v. Annunziato, 169 Conn. 517, 538, 363 A.2d 1011 (1975); see also State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). We have recognized, moreover, that the evidentiary basis for the Secondino inference derives from the maxim that “ ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.’ ” Ezzo v. Geremiah, supra, quoting Blatch v. Archer, 1 Cowper 63, 65 (1774) (Lord Mansfield); see also Throckmorton v. Chapman, 65 Conn. 441, 454, 32 A. 930 (1895). Accordingly, we agree with the Appellate Court that, because the erroneous instruction engenders a claim arising under state law and does not involve any constitutional right, the defendant bears the burden of proving harmful error. See State v. Silva, 201 Conn. 244, 250, 513 A.2d 1202 (1986); State v. Conroy, 194 Conn. 623, 627, 484 A.2d 448 (1984).

In order to meet his burden of proving that the unwarranted Secondino charge constituted harmful error, the defendant must show that the charge was likely to have affected the verdict. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). This he has not done. The state’s case against the defendant was a strong one. See generally State v. Gonzalez, 197 Conn. 677, 682-83, 500 A.2d 1330 (1985). The victim positively identified the defendant as her attacker. Further, the condition of the clothing worn by the victim the evening of March 6,1983, which the state introduced into evidence, tended to corroborate the victim’s version of the facts. Her sweater and slacks were stained with soil and grass, and traces of sperm were found on her underwear. Additionally, the credibility of the defendant had already been significantly damaged when he admitted, while being cross-examined, that his statements to the police on March 10, 1983, had been lies. In the light of this admission, any further harm to the defendant’s credibility resulting from the Secondino instruction must reasonably be seen to have been minimal.

Finally, it is significant to note that the victim’s factual account accusing the defendant of sexual assault and the defendant’s alibi story at trial were not necessarily mutually exclusive. In other words, even if the jurors believed the defendant’s claim that he had hitchhiked home after the party and had received a ride from someone named Mark, they might have also believed that the defendant had assaulted the victim prior to being picked up. The defendant’s failure to show any inconsistency between his alibi and the victim’s complaint further supports our conclusion that the defendant has not carried his burden of proving that the court’s error was harmful under the standard applicable to a nonconstitutional error. We therefore hold that, under the circumstances of this case, the Appellate Court correctly determined that the erroneous Secon-dino charge given by the trial court was harmless.

II

The principal issue in this appeal is whether the state may introduce evidence of a defendant’s silence after he has received Miranda warnings but prior to his arrest. In its rebuttal presentation, the state questioned Graham, the police officer who had taken the defendant’s statement on March 10, 1983, about the defendant’s failure to correct that statement between March 10 and March 23, the date of his arrest. The defendant challenges the ruling of the Appellate Court that the error of the trial court in permitting such questioning by the state was harmless beyond a reasonable doubt. The state, on the other hand, urges us to affirm the judgment of the Appellate Court upon the alternative ground that, because the defendant was not in custody when he gave his March 10,1983 statement, any evidence of the defendant’s silence prior to his arrest was properly admitted.

“Q. And between March 10, which you previously testified was the date that you had occasion to interview Mr. Shashaty and March 23, the date on which he was placed under arrest, at any time, did you receive any contact from him and information from him that he had either been mistaken or lied in his statement to you?

Our analysis of the circumstances of this case differs from that of the Appellate Court. The Appellate Court assumed that the questioning by the police of the defendant on March 10, 1983, constituted “custodial interrogation.” See State v. Shashaty, supra, 393. The court then held that the admission into evidence of the defendant’s subsequent silence was erroneous under the rule of Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” See State v. Shashaty, supra. Relying upon Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977), however, the Appellate Court concluded that the Doyle error in the present case was harmless beyond a reasonable doubt. State v. Shashaty, supra, 394-95. The Chapman court had stated that, “[w]hen there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.” Chapman v. United States, supra, 1250.

“A. No.
“Q. At any time during that period [of] time, namely March 10 to March 23, were you advised of the existence of any individual by the name of Mark, who allegedly picked him up while he was hitchhiking home from [the] party on March 6?
“A. No.”

We disagree with the Appellate Court that the defendant was in police custody on March 10, 1983, when he gave his alibi statement that later proved to be false. As we have detailed, Graham and an accompanying Milford police officer went to the defendant’s home and asked the defendant whether he would agree to stop by the police station to discuss the alleged sexual assault. The defendant was not in the company of the police when he arrived at the station later that day. At that time Graham told the defendant that “he was not under arrest and he could leave any time.” Further, the defendant left the police station freely, approximately one hour after the interview had begun. It is clear that, under such circumstances, the March 10, 1983 interview of the defendant was not a “custodial interrogation.” See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); Hunter v. State, 590 P.2d 888, 895 (Alaska 1979); 1 W. LaFave & J. Israel, Criminal Procedure (1984) § 6.6.

Because the defendant was not under arrest or otherwise in custody when he went to the police station on March 10, 1983, the giving of Miranda warnings was not essential before the police interrogated him. “[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Oregon v. Mathiason, supra; see Miranda v. Arizona, supra, 467-69; State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985).

The issue before us, however, is not whether Miranda warnings were required, but whether, once the police had given them, the defendant may have relied upon their assurance of his right to remain silent so that the rebuttal testimony concerning his failure, after receiving the warnings, to correct the statement he had made to the police violated his right to due process. Neither this court nor any federal court has yet had occasion to consider the issue before us, whether the use of a defendant’s pre-arrest, but post -Miranda, silence violates his due process rights under the United States constitution. As we have noted, Doyle v. Ohio proscribes the use for impeachment purposes of a defendant’s silence subsequent to his arrest and after receiving Miranda warnings. “The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” (Emphasis added.) Wainwright v. Greenfield, 474 U.S. 284, 106 S. Ct. 634, 639, 88 L. Ed. 2d 623 (1986); see also State v. Zeko, 177 Conn. 545, 553-54, 418 A.2d 917 (1979).

Doyle has not been extended to apply to a defendant’s silence before he has been taken into custody and given Miranda warnings; Jenkins v. Anderson, 447 U.S. 231, 240,100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980); or to his silence following his arrest but before receiving such warnings. Fletcher v. Weir, 455 U.S. 603,102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982). Doyle has also been held inapplicable to cross-examination of a defendant concerning his failure to inform the police, at the time of his statement following his arrest and receipt of Miranda warnings, of the inconsistent version of the crime given in his trial testimony. Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222, reh. denied, 448 U.S. 912, 101 S. Ct. 27, 65 L. Ed. 2d 1173 (1980); see State v. Casey, 201 Conn. 174,184-86, 513 A.2d 1183 (1986); State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985).

Two state courts have dealt with the issue facing us today, but have reached different conclusions. The Supreme Judicial Court of Maine held that pre-arrest silence following Miranda warnings could be used to impeach a defendant, who had made no statement to the police, concerning "his failure to tell the officers the story he told on the stand.” State v. Robinson, 496 A.2d 1067, 1072 (Me. 1985). The Wisconsin Supreme Court, however, decided that “[rjeceipt of the Miranda warning is the important factor in the Doyle analysis, not whether the defendant has been arrested,” and that, “[tjherefore the Doyle rationale protects post-Miranda silence whether occurring before or after arrest.” State v. Fencl, 109 Wis. 2d 224, 234, 325 N.W.2d 703 (1982).

In this case there is no necessity for us to venture into this unsettled area of federal constitutional law and we reject the state’s invitation to do so. Even if the admission of the rebuttal testimony concerning the defendant’s failure to return to the police in order to correct the statement he previously had given constituted a constitutional error, as the Appellate Court concluded, we agree with the further analysis made by that court holding that its admission was harmless beyond a reasonable doubt. See State v. Shashaty, supra, 394-95. As the Appellate Court noted, “the state’s attorney merely asked the officer as a factual matter whether ‘at any time, [he] receive[d] any contact from [the defendant] and information from him that he had either been mistaken or lied in this statement.’ After the officer answered no, the state’s attorney then asked whether the officer had been ‘advised of the existence of any individual by the name of Mark, who allegedly picked [the defendant] up while he was hitchhiking home from [the] party on March 6?’ When the officer stated that he had not, the line of questioning was dropped.” Id.

The defendant does not claim any further reference at trial to his silence. The credibility of his alibi defense advanced at trial already had been “substantially damaged,” as the Appellate Court observed, by the testimony of four witnesses who had testified, in contradiction of his first alibi contained in his statement to the police, that he had been in the company of those witnesses at the time the crime occurred. Coupled with the devastating effect of the defendant’s prior admittedly contrived alibi upon the credibility of his testimony at trial, the evidence of the crime presented by the state must fairly be characterized as overwhelming. The defendant was not a stranger to the victim, as they admittedly had been in each other’s presence for several hours at the relatively small party that had preceded the crime. No serious issue of her ability to identify him has been raised. As we have mentioned in discussing the erroneous Secondino charge, the victim’s testimony concerning the circumstances of the assault was corroborated by the examination of her clothing following her report of the incident to the police. We agree with the Appellate Court that the criteria for finding a Doyle error harmless beyond a reasonable doubt as set forth in Chapman v. United States, supra, 1249-50, were adequately satisfied in this case.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The following portion of the transcript records, in relevant part, the rebuttal examination of Officer William Graham:

       The defendant nominally makes his due process claim under both the state and federal constitutions. “The due process clauses of the United States constitution, § 1, of the fourteenth amendment, and of the Connecticut constitution, article first, § 8, can be treated together because they ‘generally have the same meaning and impose similar constitutional limitations.’ Keogh v. Bridgeport, 187 Conn. 53, 60,444 A.2d 225 (1982); McKinney v. Coventry, 176 Conn. 613, 616, 410 A.2d 453 (1979).” Gunther v. Dubno, 195 Conn. 284, 297 n.13, 487 A.2d 1080 (1985). The defendant proffers no argument for enhanced state constitutional protection and, on the facts of this case, we see no reason independently to perform such an analysis. See State v. Thompson, 197 Conn. 67, 76 n.6,495 A.2d 1054 (1985).

       The Wisconsin Supreme Court also went on to conclude that the use of pre-arrest silence for impeachment, even in the absence of Miranda warnings, constituted a violation of the defendant’s fifth amendment privilege against self-incrimination. State v. Fencl, 109 Wis. 2d 224, 233 n.6,235-38, 325 N.W.2d 703 (1982). We have held to the contrary based upon the statement in Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124, 65 L. Ed. 2d 2486 (1980), as follows: “We conclude that the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a criminal defendant’s credibility.” State v. Leecan, 198 Conn. 517, 521, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

       The state conceded at oral argument that it had offered its rebuttal evidence of the defendant’s pre-arrest silence both to impeach the defendant’s credibility and, substantively, to demonstrate his consciousness of guilt. In its instructions to the jury, however, the court made no reference to the applicability of such evidence to show the defendant’s consciousness of guilt. Further, because the transcript does not record the closing arguments of counsel, we cannot ascertain whether the state argued for such a substantive use of the defendant’s silence. The use of the defendant’s pre-arrest silence on rebuttal rather than on cross-examination of the defendant did not deprive him of an opportunity to offer an explanation for his silence. He could have offered further testimony, his own or that of others, to explain or refute the state’s rebuttal testimony.


text:
    Wesson, Inc. v. John Hychko
    (13119)
    Healey, Shea, Callahan, Santaniello and Ment, Js.

      Argued June 11
    decision released August 18, 1987

      Robert P. Hanahan, with whom, on the brief, was Brian A. Barnes, for the appellant (defendant).

      Michael J. Daly, with whom, on the brief, was Robert J. Crean, for the appellee (plaintiff).
   Shea, J.

The principal issue in this appeal is whether a distributor of motor vehicle fuel may recover from the purchaser the tax that the distributor has been required to pay to the state pursuant to General Statutes § 12-458, when he has neglected to set forth the amount of such tax in billing the purchaser for the sale, as provided in that statute and also in General Statutes § 12-457.

The complaint in this action alleged that the plaintiff, Wesson, Inc., had sold to the defendant, John Hychko, fuel that was subject to the motor vehicle fuel tax and that it had paid to the state an assessment of the tax on the sale, for which the defendant was claimed to be liable. The trial court rendered judgment for the plaintiff in the sum of $9098.32, the amount of the tax and interest thereon that the plaintiff had paid.

In his appeal from the judgment, the defendant claims error in the court’s conclusions: (1) that § 12-458 imposes the tax on the purchaser as the primary obligor; (2) that the plaintiff could recover the tax by way of subrogation; and (3) that the plaintiff was also equitably entitled to recover the amount of taxes it had been compelled to pay “for which another is legally or equitably bound.”

The parties presented a written stipulation to the court containing the relevant facts and no additional evidence was introduced. The plaintiff is a distributor of fuel and oil products in Connecticut. The defendant operates various businesses located on Huntington Avenue, Waterbury, in which machinery and equipment are used. Between October, 1983, and June, 1985, the plaintiff sold motor vehicle fuel to the defendant, who paid the plaintiff for the amounts billed as the fuel was delivered. During that period the plaintiff was unaware of its statutory responsibility to collect the tax upon each sale as it was made.

The state, after auditing the plaintiff’s accounts, assessed a deficiency of $9098.32 in taxes and interest relating to the defendant’s account. The plaintiff paid this sum to the state. Its request for reimbursement has been refused by the defendant.

I

The defendant claims that, as the purchaser, he is not the primary obligor for the tax imposed by § 12-458 upon motor vehicle fuel, because “the fuel tax is not a user tax, but is a tax on the distributor.” The statutory language imposing the tax, however, is that “each distributor shall pay to the commissioner for the account of the purchaser or consumer a tax on each gallon of such fuels sold or used in this state . . . .” (Emphasis added.) Another provision of the statute requires the distributor to “furnish to the purchaser an invoice showing . . . the amount of tax to be paid by the distributor for the account of the purchaser or consumer.” (Emphasis added.)

This court has previously construed the provision under which the tax is paid by the distributor “for the account of the purchaser or consumer” to indicate that “the intent of the legislature was to impose an excise tax upon persons using the highways for the purpose of propelling motor vehicles upon them.” Anastasio v. Gulf Oil Corporation, 131 Conn. 708, 716, 42 A.2d 149 (1945). “[W]hile the tax was to be paid by [the distributors] it was in fact one imposed upon those who used the gasoline for that purpose; and the distributors were in effect agents of the state in collecting it.” Carroll v. Socony-Vacuum Oil Co., 136 Conn. 49, 53, 68 A.2d 299 (1949). “Under Connecticut law the wholesaler is the collecting and remitting agency .... He pays ‘for the account of the purchaser.’ ” Ciarleglio v. Benedict & Co., 127 Conn. 291, 293, 16 A.2d 593 (1940); see Spencer v. Consumers Oil Co., 115 Conn. 554, 559,162 A.2d 23 (1932). Statutes of other states taxing fuel used in motor vehicles have been construed similarly to impose an excise tax upon those using motor vehicles on public highways. Monamotor Oil Co. v. Johnson, 292 U.S. 86, 93, 54 S. Ct. 575, 78 L. Ed. 1141 (1934); Commonwealths. Wallace, 294 Mass. 31, 34, 200 N.E. 406 (1936).

We conclude that the plain intent of the legislature was to impose the burden of the tax upon the motor vehicle fuel purchaser or user, and to make the distributor responsible only for its collection and payment.

II

We shall consider together the defendant’s second and third claims, that the doctrine of subrogation is inapplicable and that the plaintiff was not equitably entitled to recover the taxes it had paid.

As the trial court noted, there is no statutory provision expressly authorizing a distributor to recover from a motor vehicle fuel purchaser the tax due upon the sale. The requirement of General Statutes § 12-457 that the distributor include in his invoice to the purchaser a written statement indicating “whether or not the required state tax has been charged thereon” implies that a distributor may absorb the tax if the invoice so discloses. By contrast, our sales and use tax imposed on retailers provides that “[reimbursement for the tax . . . shall be collected by the retailer from the consumer . . . [and] shall be paid by the consumer to the retailer. . . and that “[s]uch tax shall be a debt from the consumer to the retailer, when so added to the original sales price, and shall be recoverable at law in the same manner as other debts . . . .” General Statutes § 12-408 (2).

We are not persuaded that the absence of an express statutory provision for reimbursement of the motor vehicle fuel tax forecloses the distributor from resorting to appropriate equitable remedies where he has been legally compelled to pay a tax the incidence of which the legislature intended to impose upon the purchaser. “Where property of one person is used in discharging an obligation owed by another . . . under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee . . . .” Restatement, Restitution § 162. This doctrine is inapplicable where the payment has been made “officiously,” i.e., where the circumstances do not justify the interference with another’s affairs resulting from conferring a benefit upon him. Restatement, supra, § 2. A person does not act officiously when he pays another’s debt under a mistake or when he has discharged an obligation for which he is also liable, but which another should equitably have paid. Restatement, supra, § 162, comment b; see Restatement, supra, §§ 43, 76.

The payment of taxes by one not primarily responsible therefor is a situation where subrogation has been permitted. 73 Am. Jur. 2d, Subrogation § 66. In Hart v. Tiernan, 59 Conn. 521, 21 A. 1007 (1890), this court allowed a tax collector, who was statutorily liable to the town for municipal taxes for which tax liens had been filed and who had accordingly paid the taxes due, to be subrogated to the rights of the municipality under those liens. In a similar case we declared: “That he had all the rights under the lien that could be asserted by the city is true.” Cole v. Rice, 74 Conn. 680, 683, 51 A. 1083 (1902). These cases, however, “arose under the peculiar provisions of the charter of the city of Waterbury” that were construed to provide to the tax collector who had paid the taxes not only the right to reimbursement from the delinquent taxpayer but also “all the securities and remedies against the delinquents held by the community . . . .” Sperry v. Butler, 75 Conn. 369, 374, 53 A. 899 (1903). “When the case is one of subrogation of the individual to public rights and remedies, the situation assumes an aspect not presented where the substitution relates to private rights. Questions of public policy, questions as to the propriety of turning over the governmental machinery to individuals and conferring upon them the powers of the organized public, at once arise.” Id., 373. Thus, subrogation to a governmental claim for taxes does not necessarily make available all of the remedies created for the benefit of the government in collecting taxes; id., 373-74; or give a private individual seeking indemnification for payment of such taxes the preferential status accorded to tax claims asserted by the government. In re Page Express, Inc., 220 F. Sup. 14,18-19 (D. Conn. 1963).

The plaintiff distributor in this case does not, by virtue of its payment of the motor vehicle fuel tax, assert any special status or privilege that the state might have relied upon in collecting the tax or claiming priority over other creditors. See General Statutes §§ 12-458e, 12-461a, 12-461b, 12-461c, 12-475. This is an ordinary civil action for debt based upon the undisputed circumstance that the plaintiff has been compelled to pay a tax that it mistakenly failed to include in its invoice to the defendant. The essential question is whether it is equitable to order reimbursement from the purchaser on whom we have concluded the burden of the tax was intended to fall. In similar situations in other jurisdictions recovery has been allowed. Brandtjen & Kluge v. Fincher, 44 Cal. App. 2d 939, 111 P.2d 979 (1941) (retailer against whom state assessed an uncollected use tax entitled to recover amount paid from purchaser deemed to be primarily liable); Drake v. Thayer Manufacturing Corporation, 105 Ga. App. 20, 123 S.E.2d 457 (1961) (seller not estopped from recovering amount paid for uncollected use tax from purchaser claiming to have relied upon misrepresentation of seller as to taxability of sale); American Cast Iron Pipe Co. v. Volentine, 191 So. 2d 661 (La. App. 1966) (payment of uncollected sales tax by seller created a debt owed by the purchaser); Howitt v. Street & Smith Publications, Inc., 251 App. Div. 461, 462, 297 N.Y.S. 3 (1937) (reimbursement allowed for uncollected sales tax paid by seller “primarily liable for the payment of it to the city” acting as agent for the city in its collection); Reaves & Becker Co. v. Wilkes Co., 392 S.W.2d 379, 381 (Tex. Civ. App. 1965) (seller’s action to recover previously unbilled sales tax from purchaser not barred because of its “mistake of law”); Morrison-Knudsen Co. v. Department of Revenue, 6 Wash. App. 306, 311-12, 493 P.2d 802 (1972) (where statute imposes on seller “duty to collect and remit the tax” and on buyer “the duty to pay the tax,” buyer is ultimately responsible for previously unbilled tax, which constitutes a debt owed to seller). These cases employ different theories to allow recovery, and some rely on statutory provisions that preclude absorption of the tax by the seller. Once it has been determined, however, that the incidence of the tax was intended to fall upon the purchaser and that the liability imposed on the seller was intended as a device to enforce his responsibility to collect the tax, the purchaser has been required to reimburse the seller despite his error in failing to include the tax in his original invoice or estimate.

We conclude that, based upon the stipulated facts in this case, the plaintiff was entitled to recover under the principle that it has been legally compelled to pay an obligation for which primary liability is imposed by § 12-458 on the defendant purchaser, who “would be unjustly enriched by the retention of the benefit thus conferred.” Restatement, supra, § 162. There are no circumstances presented by the stipulation that militate against application of this equitable doctrine. The plaintiff has not acted “officiously,” but has been compelled to pay the tax to the state in order to protect its own interests. Restatement, supra, § 2, comment (a). No priority has been sought over other creditors, such as the state might have asserted in pursuing a claim for the delinquent taxes against the defendant. See Sperry v. Butler, supra, 373. The fact that the plaintiff had mistakenly assumed the sale was not taxable does not preclude resort to the equitable remedy of subrogation. Restatement, supra, § 43. Neither the pleadings nor the stipulation indicate that the defendant has suffered any loss or prejudice resulting from the failure to include the tax in the invoice submitted at the time of the sale. No claim has been raised of an agreement by the plaintiff to absorb the tax. We agree with the trial court that the plaintiff was entitled to recover from the defendant the amount of the assessment for the motor vehicle fuel tax that it paid to the state.

The judgment rendered by the trial court in the sum of $9098.32 included $1605.69 of interest that the plaintiff had paid to the state because of its failure to pay the tax on the sale to the defendant when due. Although no separate issue concerning this portion of the judgment had been raised until inquiry by this court during oral argument, in responding the plaintiff conceded that it was erroneous for the trial court to have included in the judgment the interest resulting from its delay in paying the tax. Accordingly, the judgment should be revised, by eliminating the interest component, to reflect an award of only the amount of the tax paid to the state, $7492.63.

There is error only in the amount of the judgment, the judgment is set aside and the case is remanded with direction to correct the judgment in accordance with this opinion.

In this opinion the other justices concurred.

      "[General Statutes] Sec. 12-458. returns, rate and payment of tax. exemptions. Each distributor shall, on or before the twenty-fifth day of each month, render a return to the commissioner. Each return shall be signed by the person required to file the return or by his authorized agent but need not be verified by oath. Any return required to be filed by a corporation shall be signed by an officer of such corporation or his authorized agent. Such return shall state the number of gallons of fuel sold or used by him during the preceding calendar month, on forms to be furnished by the commissioner, and shall contain such further information as the commissioner shall prescribe. The commissioner may make public the number of gallons of fuel sold or used by the distributor, as contained in such report, notwithstanding the provisions of section 12-15 or any other section. For purposes of this section fuel sold shall include but not be limited to the transfer of fuel by a distributor into a receptacle from which fuel is supplied or intended to be supplied to other than such distributor’s motor vehicles. On said date and coincident with the filing of such return each distributor shall pay to the commissioner for the account of the purchaser or consumer a tax on each gallon of such fuels sold or used in this state during the preceding calendar month of fourteen cents before July 1,1984, fifteen cents on and after July 1, 1984 .... Each distributor, when making a taxable sale, shall furnish to the purchaser an invoice showing the quantities of fuel sold, the classification thereof under the provisions of this chapter and the amount of tax to be paid by the distributor for the account of the purchaser or consumer. Any distributor failing to pay said tax when due shall be liable for interest at the rate of one and one-fourth per cent per month or fraction thereof on the amount of tax from the time when the tax becomes payable until the same is paid.”

       “[General Statutes] Sec. 12-457. records to be kept by distributor. statement to purchaser. Each distributor shall keep an accurate record of the number of gallons of such fuels purchased, manufactured, compounded or received by him, the date of any such purchase and the number of gallons sold or used by him. He shall deliver, with each consignment or delivery of such fuels to any purchaser within this state, a written statement of the names and addresses of the vendor and vendee, the number of gallons sold and the date of sale and delivery. Such written statement shall set forth whether or not the required state tax has been charged thereon. Each such record and such statement shall be preserved by such distributor and such purchaser, respectively, for a period of at least three years and shall be offered for inspection upon demand of the commissioner or any officer or agent designated by him. The commissioner shall cause such records and statements to be regularly audited as he shall prescribe and each distributor shall satisfactorily account for all such fuels as have been sold or used by him. Any such fuels unaccounted for by the distributor for which a satisfactory explanation cannot be submitted shall be construed to have been sold or used.”

       The defendant phrases this issue as whether he was “unjustly enriched at the expense of Wesson.” The trial court, however, did not use the term “unjust enrichment,” but relied upon “the general rule that a person who, not acting voluntarily, pays taxes for which another is legally or equitably bound, is entitled to recover from such other the amount paid.”

       It is possible that the delay caused by the plaintiff’s failure to include the tax in its invoice at the time of the sale might have prevented the defendant from filing a claim for a refund of any portion of the tax paid on exempt fuel, such as that not used in motor vehicles “licensed or required to be licensed to operate upon the public highways of this state . . . .’’General Statutes § 12-459 (a) (1). “Any claim for refund of said tax for fuel used during any calendar year shall be filed with the commissioner on or before March thirty-first of the succeeding year.” General Statutes § 12-459 (b). No such claim of prejudice has been pleaded or briefed nor does the stipulation contain the facts necessary for consideration of such a claim.