author: Arthur H. Healey, J. Shea, J.,

text:
    State of Connecticut v. S & R Sanitation Services, Inc.
    (12746)
    Peters, C. J., Healey, Shea, Callahan and Novack, Js.
    Argued November 6, 1986
    decision released February 17, 1987

      John J. Dropick, assistant state’s attorney, with whom was Judith Rossi, deputy assistant state’s attorney, for the appellant (state).

      James H. Throwe, for the appellee (defendant).

      Joseph I. Lieberman, attorney general, and Richard F. Webb, assistant attorney general, filed a brief as amicus curiae.
   Arthur H. Healey, J.

The defendant, S & R Sanitation Services, Inc. (S & R), was charged by substitute information with nine counts of operating without a permit for collection on or about nine dates in August and September, 1983, in violation of General Statutes § 22a-454. Upon the defendant’s timely motion, the trial court dismissed the substitute information. The state has appealed the judgment claiming that the court erred in its conclusions and that the substitute information, therefore, should be reinstated.

Before we may address the merits of the state’s claims, it is necessary to resolve an issue involving our subject matter jurisdiction over this appeal. The defendant claims that this appeal by the state is not properly before us because the trial court denied the state permission to appeal. We have jurisdiction to determine our jurisdiction. See, e.g., Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57 n.7, 459 A.2d 503 (1983); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980).

The background circumstances disclosed by the record relevant to the determination of our jurisdiction include the following. On December 21, 1983, the defendant was charged with one count of the crime of operating without a permit for collection on or about August 24, 1983, in violation of General Statutes § 22a-454. Some time later, the state filed a substitute information charging S & R with nine counts of operating without a permit for collection in violation of General Statutes § 22a-454 on or about nine dates in August and September, 1983. The state maintained that the charges stemmed from the defendant’s conduct in collecting a chemical liquid, latex waste from a Windsor Locks corporation, and transporting it to S & R’s place of business in South Windsor. The defendant pleaded not guilty on January 18,1984, and elected a jury trial. At that time, the defendant filed a motion for a bill of particulars.

On February 3, 1984, the defendant filed a motion to dismiss the charges. Briefs were filed, and on March 8,1984, the motion was argued before the court, Norm, J. On May 10,1984, the trial court filed an eight page memorandum of decision in which it denied the motion to dismiss. In this decision, the court rejected the first claim raised in the motion to dismiss, that the information failed to contain “an allegation of criminality,” concluding that the bill of particulars filed subsequent to the motion to dismiss satisfied this requirement. The court also rejected the defendant’s argument that the state, by electing to proceed in a civil suit through the department of environmental protection, was precluded from pursuing the criminal prosecution under principles of collateral estoppel. The court noted the existence of a factual dispute as to whether the material allegedly transported by the defendant without a permit was “a liquid chemical,” the transportation of which was proscribed by the statute. The court opined that the defendant could not demonstrate that the issue it sought to foreclose on the motion to dismiss had necessarily been resolved in the earlier civil proceeding brought against the defendant by the commissioner of environmental protection, which had been disposed of by a stipulated judgment on January 30, 1984. After a thorough discussion of collateral estoppel, the court denied the motion.

Thereafter, the defendant filed a motion to reargue the motion to dismiss on two grounds. One ground was directed to the collateral estoppel aspect. There the defendant alleged that it was now admitting that the material involved was “a chemical liquid” under the statute for the purposes of the judgment in the civil case. Permission to reargue was granted. After reargument and the filing of a supplemental brief, the court granted the motion to dismiss. In its supplemental memorandum on the motion to dismiss, the court said, inter alia, that during reargument and in the supplemental brief, “the defendant admitted that the material in question here, as in the prior civil action, is liquid chemical, or in the words of the statute, that the latex materials are chemical liquids.” It therefore decided that the other requirements for the application of collateral estoppel were met and it granted the motion to dismiss.

The state then moved for permission to appeal. The state based its motion on General Statutes § 54-96 and State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). The state thereafter filed a “Motion for Further Articulation” with the trial court requesting further articulation of the legal basis for applying collateral estoppel, the factual basis for its conclusion that “the other requirements for the application of collateral estoppel [were] met,” the basis for the conclusion “that any issues have been resolved in the defendant’s favor in prior litigation” and “[w]hether the court has concluded that any issues were fully and fairly litigated when only a stipulated judgment has entered, and the basis for that conclusion.” The court, in a four page memorandum of decision, dated January 15, 1985, denied the motion to appeal and granted the motion for further articulation. In its articulation, the court said: “It is the understanding of this Court that the factual allegations which were the subject of that related civil matter are the same as those which form the basis of the charges in the instant criminal action.”

“The State of Connecticut hereby moves the court for permission to appeal dismissal of the captioned case, contained in a judgment and memorandum of decision of the court, Noren, J., dated September 28,1984, and attached hereto as Exhibit A.
“This motion is brought pursuant to General Statutes, section 54-96 and State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). No previous motion of this kind has been brought in this action.”

On February 16, 1985, the state filed, pursuant to Practice Book § 3107 (now § 4053), a “Motion for Review” in the Appellate Court. In this motion, the state “move[d] for review and reversal of the decision of the trial court denying it permission to appeal from its decision granting the defendant’s motion to dismiss the above-captioned case.” On March 26, 1985, the Appellate Court directed that the motion for review and the relief requested therein be granted. Pursuant to Practice Book § 3004A (now § 4023), the case was transferred to this court on May 28, 1985.

“The right to an appeal is not a constitutional one.” Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). “There is ... no common-law right of appeal by the state in criminal matters. . . . The right of the state to appeal in criminal cases is granted only by statute.” State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); see State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976); State v. Carabetta, 106 Conn. 114, 115, 137 A. 394 (1927). “As we noted in State v. Carabetta, [supra, 119]: ‘ “Statutes authorizing an appeal in a criminal case must be strictly followed.” 17 Corpus Juris, 14; State v. Caplan, 85 Conn. 618, 84 Atl. 280 [1912].’ The conditions of the statute must therefore be met to have a valid appeal.” State v. Audet, supra. “The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. [Id., 342]; Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589, aff’d, 337 U.S. 901, 69 S. Ct. 1046, 93 L. Ed. 1715 (1948).” State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

In this case, the right of appeal exists only by virtue of General Statutes § 54-96. That statute provides, in part, that appeals “may be taken by the state, with the permission of the presiding judge. ” (Emphasis added.) The words of a statute are to be given their commonly approved meaning, unless a contrary intent is expressed. General Statutes § 1-1; State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). The term “permission” as used in § 54-96 needs no judicial gloss to demonstrate that it means the obtaining of consent and authority of the court; no automatic right to appeal is conferred upon the state. The statutory language unmistakably confers upon the trial court the choice of granting or withholding the appeal privilege depending upon the circumstances of each case. It is apparent from the permissive language of the statute that the legislature did not intend that permission to appeal be granted in every case in which it is sought.

We have recently said: “The provision that permission from the . . . judge be obtained was a limitation on the right of appeal granted the state. . . . This condition is generally considered to be a prerequisite to appeal by the state. . . . However, as the dominant intention of the legislature was to extend the right of appeal to the state, the limitation placed upon that right is one which must be so exercised as to avoid abuse and unreasonable consequences.” State v. Avcollie, supra, 109-10. The permission of the trial judge is a condition which is a “prerequisite” to the existence of the state’s right of appeal in a criminal matter under § 54-96. State v. Avcollie, supra, 109. It follows, therefore, that without that permission there is no viable appeal unless the court’s denial of permission is “ ‘so unreasonable as to constitute an abuse of discretion.’ ” Id., 110.

This case reaches us in an unusual posture. As already noted, the Appellate Court granted the state’s motion for review and the relief requested therein; its order reversed the trial court’s denial of permission to appeal and thus created an appeal where one had not theretofore existed. The Appellate Court’s order, which was not accompanied by a memorandum of decision, impliedly determined that the trial court had abused its discretion in denying the state’s motion for permission to appeal.

The defendant argues that the Appellate Court erred in reversing the trial court because, having invoked Avcollie and § 54-96, the state did not meet the standard set out in Avcollie. Maintaining that it has had no opportunity to have a review of the Appellate Court order, which created an appeal where none existed before, the defendant urges us to inquire whether the trial court did abuse its discretion. The state argues that the trial court’s denial did violate Avcollie and, “[m]oreover, the ‘extreme abuse of discretion’ test expounded by the defendant is a standard of review and has no bearing on reviewability, which is the issue here.” In addition, the state argues, and we agree, that this court has “the general supervisory power to protect its jurisdiction to hear appeals” and that this “power cannot be defeated by the arbitrary action of a trial court.” Accordingly, we proceed with our jurisdictional inquiry which brings us, as it must, to the issue of whether the trial court abused its discretion for, if it did, then a viable appeal exists and, if it did not, such an appeal does not exist. Put another way, the jurisdictional predicate for this appeal under § 54-96 exists only if the trial court abused its discretion in denying the state’s motion for permission to appeal. We conclude that there was no such abuse in this case and, therefore, dismiss this appeal.

We agree with the state and the defendant that Avcollie lays down the standard to be followed in this case. Recognizing that “[t]he court’s granting or denial of the state’s motion to appeal constitutes a ‘judicial determination’ within the court’s discretion” and that “[ojrdinarily” we will not review rulings made in the exercise of a court’s discretion; State v. Avcollie, supra, 110; the Avcollie court, nevertheless, said that “[i]n those cases of manifest abuse . . . where injustice appears to have been done, this court will grant review to determine whether the court’s exercise is ‘so unreasonable as to constitute an abuse of discretion.’ ” Id. The “judicial determination” we spoke of in Avcollie, which is within the court’s discretion, is more than “a mere formality” as is evidenced by its reference to State v. Cavabetta, supra. In striking down the trial court’s earlier denial of the state’s motion to appeal in Avcollie, we determined that “just such a clear and extreme abuse of discretion is evident.” State v. Avcollie, supra, 111. In doing so, we said that even the trial court itself admitted “that there was no considered reason for denying the state the opportunity to appeal” and, therefore, we held that “its action [was] arbitrary and an abuse of its discretion . . . .’’Id.

Inherent in the concept of judicial discretion is the idea of choice and a determination between competing considerations. Discretion could generically be said to apply to issues which do not yield a fundamentally empirical yes or no answer. The very core consideration of choice in discretion logically means that neither party is absolutely entitled to have that discretion exercised in its favor. We must determine whether the trial court’s denial of permission to appeal was an abuse of its discretion. We conclude that it was not in this case. In reaching this conclusion, we weigh heavily the fact that in this case, unlike both Avcollie and State v. Bellamy, 4 Conn. App. 520, 495 A.2d 724 (1985), the trial court did give “considered reason[s]”; see State v. Avcollie, supra; and did so at length and still later articulated them on request of the state. We hasten to add that our conclusion does not imply that we would have resolved the merits in the same fashion as the trial court. But the question of determining whether a trial court has abused its discretion does not depend upon whether a reviewing court would have reached the same conclusion. See, e.g., Bringhurst v. Harkins, 32 Del. 324, 122 A. 783 (1923); Rogers v. Lyle Adjustment Co., 70 N.M. 209, 213-14, 372 P.2d 797 (1962); Abbenhaus v. Yakima, 89 Wash. 2d 855, 858-59, 576 P.2d 888 (1978).

We are aware, as the state argues, that the deference given to the trial court’s exercise of discretion should not be interpreted as meaning that its exercise is insulated from meaningful review. While another trial court might have resolved the competing considerations differently, given the analysis of the trial court in this case, we cannot say its considered reasons constituted “arbitrary” or “unreasonable” action. See State v. Avcollie, supra. “Arbitrary” means “[wjithout adequate determining principle . . . not governed by any fixed rules or standard.” Black’s Law Dictionary (5th Ed.). “Unreasonable” means “irrational.” Id. One court aptly set out this reasoning: “Where there is room for two opinions, an action taken after due consideration is not arbitrary or capricious even though a reviewing court may believe it to be erroneous.” Abbenhaus v. Yakima, supra. The memoranda filed by the trial court disclose a unique fact pattern, in both the civil and criminal aspects of this matter, which are admittedly based on identical facts. Despite the claims of the state to the contrary, even though we do not reach the merits, an examination of the trial court’s memorandum on the issue of granting or withholding of the required permission to appeal discloses that the trial judge recognized his obligation “to playfair with the system.” See M. Rosenberg, “Judicial Discretion of the Trial Court, Viewed from Above,” 22 Syracuse L. Rev. 635, 665 (1971). We do not see evident in this case, as we did in Avcollie, a “clear and extreme abuse of discretion” or a case “where injustice appears to have been done.” State v. Avcollie, supra.

There was no abuse of discretion by the trial court in denying the state’s motion for permission to appeal under § 54-96. Because that permission is crucial under the statute for an appeal to be viable and, a fortiori, for our subject matter jurisdiction, we have no such jurisdiction under the circumstances of this case. This requires that we dismiss the appeal.

Accordingly, the appeal is dismissed.

In this opinion, Peters, C. J., Callahan and Novack, Js., concurred.

Shea, J.,

dissenting. Because I find no valid reason for the denial of the state’s motion for permission to appeal in either the memoranda of the trial court or the majority opinion, I agree with the conclusion of the Appellate Court when it granted the state’s motion for review that the trial court abused its discretion in denying such permission. Although the majority opinion implies that the trial court gave reasons for its denial of permission to appeal which would negate any “abuse of discretion,” it does not specify what these reasons were or advance any reasons for such denial approved by the majority. The trial court did give reasons for its initial decision denying the motion to dismiss and also for its subsequent granting of the motion following reargument. The court filed an additional memorandum of decision responding to the state’s motion for further articulation of the reasons for this reversal and also denying its motion for permission to appeal. All but the last paragraph of that memorandum simply elaborate upon the court’s reasons for previously granting the motion to dismiss as requested in the motion for further articulation. The last paragraph is as follows: “Fairness, the bedrock upon which is based the doctrine of collateral estoppel, demands an end to these proceedings. And there will be no seismic result to Cardozo’s edifice of justice; Palko v. Connecticut, 302 U.S. 319, 328, 82 L. Ed. 288, 58 S. Ct. 149 (1937); as the Court exercises the discretion upon which he said the constitutional validity of our statute depends; Id.; in the absence of the convoluted facts and chronology of [State v. Avcollie, 174 Conn. 100, 384 A.2d 315 (1977)], and in the absence of its admission of no considered reason for denying the state the opportunity to appeal.”

To the extent that this paragraph relies upon the doctrine of collateral estoppel as demanding “an end to these proceedings,” it necessarily implicates the merits of the court’s decision to dismiss the prosecution because of the stipulated judgment in the civil action and the terminology used in the release given by the commissioner of environmental protection in settlement of any civil claims against the defendant for water pollution. The remainder of the paragraph, as supplemented by a footnote, seems to question the present constitutional viability of General Statutes § 54-96, the statutory authority for the state to appeal on questions of law. It concludes that, because the “convoluted facts and chronology” of State v. Avcollie, supra, where the trial judge had expressly conceded there was no good reason to deny permission to appeal, are absent, permission to appeal should be denied.

To the extent that the opinion may rely on the elaborate discussion by the trial court of the grounds upon which it dismissed the information as its statement of “considered reasonfs]” for denying permission to appeal, the implication is that, so long as the memorandum of decision gives more than cursory treatment to the issues, a trial judge has absolute discretion to deny permission to appeal under the statute. The legislature could never have intended to vest in a trial judge such arbitrary authority to preclude appellate review of his own decisions. It is fundamental that one cannot be a judge in his own case. Unless this principle is deemed to have been wholly disregarded in § 54-96 by making the trial judge’s determination conclusive, so long as the record demonstrates that sufficient judicial effort has been devoted to the issues, a denial of permission to appeal cannot properly be based upon the trier’s view that his judgment is correct and that any appeal therefrom would be fruitless.

To the extent that the opinion may rely upon the remaining reasons given by the trial court for denying permission to appeal, it seems to imply that such an exercise of discretion is reversible only where there has been an express admission by the trial judge that there is no good reason to deny the appeal, as in Avcollie. It is quite evident from the brief comments in the memorandum expressly addressing the motion for permission to appeal that the trial court took a jaundiced view of § 54-96, intimating that its constitutional validity was seriously in question. This plainly erroneous view appears to have been a significant influence in inducing the court to conclude that, unless the “convoluted facts and chronology” of Avcollie were duplicated, permission to appeal should be denied.

Neither the trial court nor the majority have taken the view that the issues sought to be raised by the state in this appeal are frivolous. Indeed they are highly significant, involving a question of whether one state agency in pursuing its authorized functions may deliberately or inadvertently invade the exclusive authority of the state’s attorney to pursue a criminal prosecution. Nor does the majority opinion suggest any hardship that will be suffered by this corporate defendant or by other persons as a possible ground to support the action of the trial court. I find it incomprehensible, therefore, that the majority chooses to reverse the conclusion of the Appellate Court that the trial court did abuse its discretion in denying permission to appeal rather than address the substantial and unprecedented issues raised.

Accordingly, I dissent.

       General Statutes (Rev. to 1983) § 22a-454 provides: “permit for collection, STORAGE OR TREATMENT, CONTAINMENT, REMOVAL OR DISPOSAL OF CERTAIN SUBSTANCES, MATERIALS OR WASTES: SUSPENSION OR REVOCATION. study of disposal methods. No person shall engage in the business of collecting, storing or treating waste oil or petroleum or chemical liquids or hazardous wastes or of acting as a contractor to contain or remove or otherwise mitigate the effects of discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste nor shall any person, municipality or regional authority dispose of waste oil or petroleum or chemical liquids or waste solid, liquid or gaseous products or hazardous wastes without a permit from the commissioner. Such permit shall be in writing, shall contain such terms and conditions as the commissioner deems necessary and shall be valid for a fixed term not to exceed five years. No permit shall be granted unless the commissioner is satisfied that the activities of the permittee will not result in pollution or contamination or emergency. The commissioner may suspend or revoke a permit for violation of any term or condition of the permit. The commissioner may conduct a program of study and research and demonstration, relating to new and improved methods of waste oil and petroleum or chemical liquids or waste solid, liquid or gaseous products or hazardous wastes disposal. For the purposes of this section, collecting, storing, or treating of waste oil, petroleum or chemical liquids or hazardous waste shall mean such activities when engaged in by a person whose principal business is the management of such wastes.”

       There is a fundamental difference between this court’s power to entertain an appeal and the determination of the merits of the appeal itself. See, e.g., Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985); Laurel Park, Inc. v. Pac, 194 Conn. 677, 679, 485 A.2d 1272 (1984). “The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage of the proceedings. . . . [I]f at any point it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Citations omitted.) Laurel Park, Inc. v. Pac, supra, 678 n.l. The record before us clearly requires that we examine the threshold question of our jurisdiction to entertain this appeal and to dismiss it if we lack jurisdiction. State v. Phillips, 166 Conn. 642, 644, 353 A.2d 706 (1974); Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 574, 87 A.2d 137 (1952); State v. Carter, 3 Conn. App. 235, 236, 486 A.2d 1138 (1985).

       The state first filed a bill of particulars on the nine counts on January 25, . 1984.

       The defendant’s motion to dismiss stated the following:
      “The defendant, S & R Sanitation Service, Inc., respectfully moves the court to dismiss the charges pending against it on the following grounds:
      “1. That the information as set forth in the bill of particulars fails to set forth that the defendant corporation, wilfully or with criminal negligence, violated a provision of the statute.

        “2. That the State of Connecticut has elected its remedy by filing a civil action against the defendant in CV82-0270920S, Stanley J. Pac, Commissioner of Environmental Protection vs. S & R Sanitation Service, Inc., Superior Court Judicial District of Hartford, October 25, 1983. This case has been disposed of by entry of a stipulated judgment on January 30, 1984, in which the defendant agreed to cease all transportation and storage of latex waste in this area and to remove the stored latex within 60 days in accordance with an approved method to be submitted to the Water Compliance Division of the D.E.P. The court also ordered the defendant to pay the sum of $3,000.00 penalty in the storage case and $1,000.00 in the transportation of liquid latex case. These amounts were in lieu of a fine and for the costs and expenses incurred by the State in the investigation and prosecution of these cases.
      “3. That to criminally charge the defendant now constitutes double jeopardy in violation of the Connecticut and United States Constitutions.
      “4. That the materials transported are neither toxic or hazardous nor are they a liquid chemical but rather waste latex and water which can be disposed of in a municipal dump once much of the water is removed.”

       The court file indicates that on March 8,1984, the state filed a second bill of particulars which, according to the trial court, effectively mooted out the first ground of the motion to dismiss, i.e., that the information failed to contain “an allegation of criminality.”

       The printed record in this case discloses, inter alia, the following release, reference to which is made in the briefs of both the state and the defendant:
      “RELEASE
      “TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, GREETING:
      “KNOW YE, that the Commissioner of the Department of Environmental Protection for and in consideration of the sum of One Thousand Dollars ($1,000) lawful money of the United States of America to it in hand paid by S & R Sanitation Service, Inc., a corporation with its principal place of business in South Windsor, Connecticut, the receipt whereof is hereby acknowledged, has remised, released and forever discharged, and by these presents does for himself and his successors, remise, release and forever discharge the said S & R Sanitation Service, Inc., its successors and assigns, of and from all, and all manner of action and actions, cause and causes of actions, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, in admiralty, or in equity which against S & R Sanitation Service, Inc., said Commissioner of the Department of Environmental Protection ever had, now has or which he or his successors hereafter can, shall or may have for, upon or by reason of violations alleged to have taken place since June 30, 1981, for the transport of any type of waste without a permit as required by Section 22a-454 of the Connecticut General Statutes.
      “This Release may not be changed orally.
      “IN WITNESS WHEREOF, the said Commissioner of Environmental Protection signs these presents on the 28th day of February, 1984. “Signed, sealed and delivered in the presence of:
      “[signature illegible]
      “[signature illegible]
      “COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION
      “BY Isl

      Stanley J. Pac
      Commissioner”

       On this branch of the matter, the defendant’s motion to reargue alleged the following:
      “With respect to the question of collateral estoppel, the defendant has admitted for the purposes of that issue the fact that the material (i.e. liquid latex) was a chemical liquid under the statute for the purposes of the Judgment which was entered in the civil case so that the requirement of the collateral estoppel doctrine was satisfied and under the reasoning of the Court, provides the basis for the dismissal of the information.”

       The state’s motion for permission to appeal was the following:

       General Statutes § 54-96, entitled “Appeals by the state from superior court in criminal cases,” provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The defendant objected to the motion.

       An examination of the transcript of March 8,1984, at the time of the arguments before the court, Norm, J., on the motion fairly discloses that this was conceded by the state. It is fair to say, however, that the state’s position was, and is, that, even conceding this, it still does not preclude the criminal action undertaken against the defendant.

       On April 29,1985, the state filed a second motion for further articulation asking the trial court to articulate whether its motion to dismiss the charges was with prejudice. On May 16,1985, over the defendant’s objection, the court filed a memorandum of decision stating that the dismissal was with prejudice.

       “[Ujnder settled precedent of [the United States Supreme] Court, the Government may take an appeal from an adverse decision in a criminal ease only if expressly authorized by statute to do so.” Arizona v. Manypenny, 451 U.S. 232, 238, 101 S. Ct. 1657, 68 L. Ed. 2d 58, reh. denied, 452 U.S. 955, 101 S. Ct. 3100, 69 L. Ed. 2d 965 (1981).

       The state urges us not to consider the defendant’s untimely attack on the standard employed by the Appellate Court because the defendant failed to object to the state’s motion for review in that court and because it failed to file a motion to dismiss the appeal. In addition, the state asks this court to note that “implicit in the Appellate Court’s order was a determination that the denial of permission to appeal was an abuse of discretion or would lead to unreasonable consequences. See State v. Avcollie, [174 Conn. 100, 111, 384 A.2d 315 (1977)]; State v. Bellamy, 4 Conn. App. 520, 523, 495 A.2d 724 (1985).”
      These arguments are not persuasive. It is true that the defendant did not file an objection to the state’s motion for review, but its position cannot be suggested to be one of acquiescence given its written objection together with the supporting documents it had earlier filed in the trial court. In addition, the defendant did not file a motion to dismiss the appeal. This presents no bar to our jurisdictional inquiry in this case for at least two reasons. First, as this opinion indicates, we are entitled to consider the entire proceedings below in order to determine if this court has jurisdiction. Second, our general supervisory power over appeals referred to in Practice Book § 3096 (now § 4183) is peculiarly applicable in the circumstances of this case.
      While we deal elsewhere in this opinion with the impact of Avcollie, we will comment here on the state’s citation of Bellamy. In Bellamy, the Appellate Court was, as is this court, the third court involved. In that case, the trial court had denied the state’s motion to appeal. Thereafter, the Appellate Session of the Superior Court granted the state’s motion for review and set aside the trial court’s denial and the state filed its appeal in the Appellate Court. The Bellamy court, unlike the trial court in this case, even after the Appellate Session granted the state the right to appeal, did not offer any reasons for its denial of permission to appeal. The Appellate Court in State v. Bellamy, supra, 523, noted that “[i]mplicit in the decision of the Appellate Session was the determination that the denial of permission to appeal was, under the circumstances, so arbitrary as to be an extreme abuse of discretion, a determination with which we agree.” (Emphasis added.)
      The case before us is not Bellamy because it does not reflect a clear abuse of discretion. In this case, the trial court wrote a long memorandum of decision. In response to the state’s motion, the court further articulated its decision. Therefore, the “implicit” abuse of discretion opined in Bellamy has no place in the explicit reasoning of the trial court decision which is attacked in this case. Moreover, unlike Bellamy, its “implicit” ratiocination cannot summarily lead here to the conclusion that “the denial of permission to appeal was, under these circumstances, so arbitrary as to be an extreme abuse of discretion . . . .’’Id.

       The footnote referenced at the end of the quoted paragraph of the trial court’s memorandum was as follows: “In light of the myriad and vast changes which have taken place in the field of constitutional law in the past nearly half century, and in light of the rationale for the decision in Palko v. Connecticut, 302 U.S. 319, 82 L. Ed. 288, 58 S. Ct. 149 (1937), it is intriguing to contemplate the fate of general statutes section 54-96 if considered today by the United States Supreme Court.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Monel Ruiz
    (12893)
    Peters, C. J., Healey, Shea, Callahan and Novack, Js.
    Argued November 6, 1986
    decision released February 17, 1987

      Joette Katz, public defender, with whom was Alan McWhirter, for the appellant (defendant).

      Michael A. Fasano, special assistant state’s attorney, with whom were Joseph A. Geremia, Jr., Patricia King, assistant state’s attorneys, and, on the brief, John Connelly, state’s attorney, and Walter Scanlon and Bradford J. Ward, assistant state’s attorneys, for the appellee (state).
   Shea, J.

After a jury trial the defendant was convicted of murder in violation of General Statutes § 53a-54a. In his appeal from the judgment he claims the trial court erred: (1) in failing to suppress the identification testimony of a witness for the prosecution; (2) in permitting the state to argue that an adverse inference should be drawn from his failure to call an additional alibi witness; and (3) in denying his motion for mistrial based upon improper argument by the state. We find no error.

There is no dispute about the facts that could reasonably have been found to support the verdict. At about 6:20 a.m. on February 4,1985, the victim, Tyrone Williams, was fatally shot in the neck as he sat in his car parked near a dumpster in the parking lot of the apartment complex where he resided in Naugatuck. A resident of the apartments, who was standing in the parking lot about forty-five yards from the victim’s car, heard the shot and saw running from the scene a person whom he described as at least six feet tall and wearing dark clothes as well as a knitted hat with a cuff. This man carried in his right hand a rifle that he attempted to conceal behind his leg, and he hobbled as he ran to keep the weapon in line with his leg movements.

Another apartment resident, L, heard a “pop” noise coming from the area of the parking lot where the dumpster was situated. Immediately she arose from her bed, put her head out the window and observed a man running by at a distance of twenty to thirty feet from her. She described him as a black male, five feet ten or eleven inches tall, of medium build, wearing a blue waist-length jacket, dark pants and a maroon knitted hat that covered half his forehead. She did not notice that he was carrying anything in his hand or running in an unusual manner. She watched him approach a blue car with its motor running parked in the street at the entrance to the driveway of the apartment building.

Later that day L helped to prepare a front view composite drawing of the man she had seen from the apartment window. The next day she was shown eight color photographs of black males. She identified none of these photographs. A similar attempt at photographic identification was made on March 6,1985, which was also unsuccessful. No picture of the defendant was contained in these arrays, although a photograph of his stepbrother was included in each of them.

On March 13,1985, two police officers, who regarded the defendant as a suspect but were unable to obtain a photograph of him, took L to the K-Mart Plaza in Waterbury so that she might have an opportunity to view him. The officers had learned that the defendant worked at the Pie Plate restaurant in the plaza and they knew his work schedule. They parked in the third row of cars, about thirty feet in front of the restaurant. After waiting about fifteen minutes, L asked whether she was there to view a person in the Pie Plate restaurant. She told the officers she had been in the restaurant with some neighbors a couple of days before and had seen a black male there who looked familiar, but she was not sure where she previously had seen him. She informed them that it had just occurred to her that “that might have been him.” She testified that, when she had been in the restaurant on the earlier occasion, the defendant had greeted her as she walked toward the restroom and that she had walked away from him because she did not know who he was, although he had looked familiar. She had made the connection between the person she had seen in the restaurant and the man she had seen running by her apartment before actually viewing the defendant at the shopping plaza.

After waiting in the car a while longer, L observed a black male leave the Pie Plate restaurant and come within ten or fifteen feet of the car in which she sat. She told the officers he was the man they were seeking. To provide another opportunity to observe him, the officers drove to a different location in the parking lot, near the store the person identified by L had entered. When this person, who proved to be the defendant, came out of the store, he again passed by the car. L then said that she was sure he was the man she had seen running from the scene of the murder.

Prior to his identification by L, the police had interviewed the defendant. He had been questioned at his home on the day of the murder and at the police station on the following day, following appropriate Miranda warnings on each occasion. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant, who was sixteen years old, said that the victim was his stepfather and that at times he had struck the defendant and other children in the family without provocation. He also told the officers that he did not like the way the victim took care of his mother, E. At the trial the state presented the testimony of E that she and the victim had been separated for one and one-half years before his death.

The defendant testified in his own defense and also presented several alibi witnesses to corroborate his testimony that at the time of the murder he was at his home, about thirteen minutes by automobile from the scene of the crime. He also presented an expert witness who testified about natural lighting conditions at the time of the murder.

I

The defendant claims that the identification of him made by L at the shopping plaza in Waterbury should have been suppressed because it resulted from impermissibly suggestive police procedures. He fails, however, to specify any action of the police that can fairly be characterized as misconduct related to the identification. He concedes that it was not improper for the police to bring L to a large shopping center for the purpose of viewing a suspect. He does not maintain that the officers accompanying her did anything to induce her to select the defendant from the many people she observed as she sat in the parked car.

The defendant does point out that, because of the impracticability of preserving the record of the identification procedure fully, it is much more difficult to review the reliability of an identification made after a public viewing than where an array of photographs has been shown to a witness. L testified that, of the twenty or thirty people she observed in the area of the car before she saw the defendant come out of the restaurant, about ten were black males, but she could not describe them or estimate their ages. This deficiency in the record available for review, however, does not render the public viewing procedure impermissibly suggestive. The police had tried unsuccessfully to obtain a photograph of the defendant for the purpose of including it in an array to be shown to L. After consulting the state’s attorney, the police decided upon the viewing at the shopping plaza as the most feasible alternative. See generally Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

The defendant also maintains that once L had told the police about having seen a black male who looked familiar to her when she had been in the restaurant a few days earlier, the officers should have left the area and arranged some other identification procedure. He argues that the police should have realized from her remarks that she was under the impression that she had been brought to the shopping plaza to confirm a police suspicion that someone who worked at the restaurant had committed the murder. L testified, however, that, even before she saw the defendant come out of the restaurant, her memory had connected the restaurant employee she had seen a few days before with the person she had seen running from the crime. Although her remarks must have alerted the officers to the fact that L’s attention undoubtedly would be focused primarily on people entering or leaving the restaurant, we are not persuaded that this circumstance rendered the identification procedure impermissibly suggestive.

The key element in this identification is that, even before seeing the defendant on that occasion, L, possibly because her recollection was stimulated when she noticed that the officers had parked in front of the restaurant she had visited a few days earlier, made the connection between the black male employee she had seen on her visit to the restaurant and the person she had observed when the crime occurred. There is no indication that any improper conduct of the police contributed to the mental process by which L had reached that conclusion prior to her actual identification of the defendant when he emerged from the restaurant. From the vantage point of hindsight, it would have been preferable for the police to have arranged a viewing of the defendant at another location, such as the school he attended or the neighborhood where he resided. We are not persuaded, however, that the failure to do so resulted in an impermissibly suggestive identification under the circumstances.

Even if the actual identification of the defendant outside the restaurant were deemed impermissibly suggestive, its reliability is adequately supported by L’s independent recollection beforehand that the murder suspect was the restaurant employee who had “looked familiar” to her when she had previously visited the restaurant. The defendant stresses the fleeting opportunity the witness had to observe the suspect from her second floor apartment window as he ran from the scene of the crime, some discrepancies between the statements she gave the police and her testimony concerning his height and build, her failure to recognize the defendant as the suspected murderer when she first saw him at the restaurant, the fact that her degree of attention when she observed the suspect running by her window may have been less than a crime victim would have exercised, and the lapse of more than four weeks before she identified the defendant leaving the restaurant. On the other hand, the witness was able, with the assistance of a detective, to make a composite drawing of the man she had seen from her window that corresponds generally with the defendant’s features. She reviewed photographs of sixteen other black males, one of whom was the defendant’s stepbrother, who generally resembled the defendant, and unhesitatingly rejected them as picturing the suspect. Her initial description of the vehicle toward which she saw the suspect run as a dark blue medium-sized car with a hatchback type rear window matched the automobile that the defendant’s mother had leased from a car rental agency and that the defendant and his stepbrother returned the day after the crime occurred. She also demonstrated a high level of certainty about her identification once she had sufficiently viewed the defendant at the shopping plaza. We conclude that under all the circumstances the trial court did not err in permitting L’s identification of the defendant to be presented to the jury.

II

An alibi witness, A, testified that he had visited the defendant at his home at 6:30 a.m. on February 4,1985, about ten minutes after the estimated time of the murder. The defendant’s mother, E, answered the door when A entered the apartment. A awoke the defendant, who had been sleeping. After obtaining some money that the defendant owed him, he left the defendant’s apartment and returned to his home.

Before commencement of final arguments, the court informed counsel that it intended to charge the jury that an adverse inference could be drawn from the failure of the defendant to call E, his mother, in support of A’s testimony that he had found the defendant asleep when he visited his apartment at about the time of the murder. The defendant objected on the ground that E had been equally available to both sides as a witness during the trial and also that her testimony would be cumulative. The court remained, nevertheless, of the opinion that an adverse inference charge was in order and later gave the charge substantially as requested by the state, to which the defendant excepted. During its summation the state argued that the failure of E to testify in corroboration of A’s claim that he had found the defendant in his apartment at about the time of the murder indicated that “it didn’t happen.”

“The 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.” Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928); see also State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986). “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., 147 Conn. 672, 675, 165 A.2d 598 (1960). The defendant does not contest the basis for finding that the first of these requirements was satisfied. He claims that the second requirement was not fulfilled, however, because: (1) E’s testimony would have been cumulative; (2) she was equally available to the state as a witness; and (3) her credibility had been significantly impaired when the state, which had called her as a witness concerning her relationship with the victim, her estranged husband, had been permitted to attack her credibility by using her prior inconsistent statements.

We disagree with the defendant’s assertion that E’s testimony would have been merely cumulative. A’s alibi testimony was significant in that it placed the defendant in his home at the approximate time of the murder. If the jurors had credited that testimony, they could not reasonably have convicted the defendant. The failure to call E to corroborate A’s testimony that at such a critical time she had opened the door for him to enter her apartment in order to visit the defendant was an important circumstance to call to the attention of the jury. The testimony of an additional witness upon a significant disputed issue can hardly be characterized as cumulative. State v. Reid, 193 Conn. 646, 662, 480 A.2d 463 (1984).

We also reject the defendant’s argument that the undeniable opportunity each party had to call E to the stand negates the view of the trial court that it would have been natural for the defendant to have used her as a witness to support his alibi. Though each party ordinarily is empowered to place an available witness on the stand, such a witness often may be expected to furnish testimony more favorable to one side than the other. Id., 662-63; see Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191, 510 A.2d 972 (1986). In this case E’s relationship to the defendant, her son, as well as her presence in the apartment at the time of A’s visit, which indicated that she could probably have strengthened his defense of alibi if A’s testimony were true, plainly justified the court’s view that the defendant would naturally have presented his mother’s testimony if it would have helped his case.

The defendant’s further contention that the state’s cross-examination of E concerning her prior inconsistent statements had so impaired her credibility that it might have been more harmful than helpful to call her as a witness assumes that considerations of trial strategy may preclude an otherwise appropriate adverse inference instruction. We do not equate the requirement that the witness be one whom a party would naturally produce with the judgment of counsel that the witness would be effective. In any event, it is not a certainty that the jury would have applied the falsus in uno, falsus in omnibus principle to testimony E might have given in support of her son’s alibi. The absence of her testimony on such a significant issue was appropriately called to the attention of the jury.

Ill

The claim that the court should have granted the defendant’s motion for a mistrial is based upon references during the state’s summation to the testimony of Detective Peter DeStiso. He testified that E had told him that the victim had been living with another woman at the time of his death, that he would become violent when intoxicated and would strike her children for no reason, that two weeks before his death the victim had quarrelled with her at a shopping place and had tried to choke her, causing her to stab him with a knife in order to defend herself, and that the defendant was her favorite child and would do anything for her. The court had admitted this hearsay evidence for the limited purpose of impeaching E’s credibility after she had denied making these statements to the detective. The jury had been instructed at the conclusion of this portion of DeStiso’s testimony that the statements E had made to him had been admitted only to attack her credibility and “not for the truth” of them.

During the state’s initial argument, Assistant State’s Attorney Patricia King, after referring to the testimony of another witness concerning problems between the victim and his wife E, also began to mention DeStiso’s testimony about his interview with E. Defense counsel objected at her first reference to DeStiso, but the court denied his request to excuse the jury, saying that it would “handle that in due course.” King then completed the sentence that had been interrupted after her reference to the testimony of the detective: “that the defendant’s mother had told Detective DeStiso that there had been problems in the relationship, certain specific problems.” King made no further reference to any statements of E that had been admitted only for impeachment. At the conclusion of her argument, the court gave a special instruction to the jury that the testimony about E’s statements to DeStiso had been admitted only to impeach her credibility and could not be used to show motive.

Assistant State’s Attorney Walter Scanlon delivered the closing argument for the state. In arguing that the defendant had murdered the victim for his mother, he also referred to the testimony of DeStiso that had been admitted only for impeachment: “the mother had told him that this boy would do anything for her.” Once more defense counsel objected, but the court merely declared: “I’m going to inform the jury on that again. You may continue, sir.” Scanlon then proceeded: “I submit that the evidence in this case shows that he did the ultimate for his mother.” Later Scanlon characterized the crime as a “joint venture” on the part of the defendant and his stepbrother “to satisfy the vindictiveness of their mother.” Again the court did not respond directly to the objection of defense counsel but said the jury would later be addressed on that subject. At the conclusion of the argument, when the jury had been excused, defense counsel moved for a mistrial based upon the references by the state to E’s hearsay statements to the detective as evidence of motive. The court denied the motion, declaring its intention to instruct the jury in order to “correct any potential harm that can befall the defendant.” The charge to the jury again warned that the testimony concerning E’s statements to DeStiso had been admitted only to impeach her and not to prove the underlying facts relating to motive.

The defendant claims that the references by the state during argument to E’s hearsay statements as evidence of motive were not only improper but also violated his due process right to a fair trial. He contends further that these remarks constituted defiance of the trial court’s rulings sufficiently flagrant to invoke the supervisory authority of this court to deter prosecutorial misconduct that offends a sound judicial process.

With respect to the defendant’s constitutional claim of improper argument, “the touchstone of due process analysis in cases of prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In this case there was competent evidence from other witnesses that the motivation for the murder was the antipathy of E and the defendant toward the victim arising from his separation from his family. B testified that the victim had been living with her for one and one-half years before his death. In his interview with the police after the murder, the defendant said that his stepfather had struck him and the other children without provocation and that he did not like the way the victim took care of his mother. E herself testified that she and her husband had been separated for one and one-half years “because he wouldn’t help me out in the house,” that he was “not a good provider,” and that the defendant was her favorite child because he generally obeyed her, helped around the house and stayed out of trouble. There was also evidence that she had leased the car claimed to have been used by the murderer, which the defendant and his brother had returned to the car rental agency. Detective Neal O’Leary testified that the defendant had told him that he had not “got along” with his stepfather.

It appears, therefore, that the reference by King to E’s statement to DeStiso, “that there had been problems in the relationship, certain specific problems,” informed the jury of no facts that were not amply supported by other witnesses whose testimony had been introduced for substantive purposes. The reference by Scanlon to DeStiso’s testimony that E had said that the defendant “would do anything for her,” however, goes well beyond her testimony that “he’d do most of what I say” and help her with the other children. This transgression, nevertheless, was harmless beyond a reasonable doubt in view of all the other evidence of motive in the case. Additional remarks of Scanlon challenged as improper, that the defendant “did the ultimate for his mother” and that the crime was a “joint venture” with his stepbrother “to satisfy the vindictiveness of their mother,” while flamboyant, are at least arguable inferences based upon evidence not necessarily implicating the statements of E that had been admitted only for impeachment. Apart from the single reference to DeStiso’s testimony concerning the defendant’s loyalty to his mother, the remarks do not exceed permissible limits for rhetorical hyperbole by counsel engaged in advocating a cause under our adversary system.

In any event, the rule of evidence precluding the substantive use of prior inconsistent statements, which lies at the heart of the prosecutorial misconduct relied upon, is not of constitutional dimension. California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). “[Tjhere is good reason to conclude that the Confrontation Clause is not violated by admitting a defendant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” Id. This court has recently sanctioned the substantive use of prior statements of a witness made under prescribed safeguards that enhance their reliability. State v. Whelan, 200 Conn. 743, 753-54, 513 A.2d 86, cert. denied, 479 U.S. , 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We conclude, therefore, that the defendant’s claim of a violation of his constitutional right of fair trial is unfounded.

The defendant also contends that the state’s repeated attempts to have the jury consider the impeachment evidence as proof of motive constituted a deliberate defiance of the trial court’s authority, so that this court should invoke its supervisory authority over the conduct of attorneys in the trial courts by setting aside the conviction as a sanction. “Where a prosecutor in argument interjects remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant, his conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Reversal of a conviction under our supervisory powers, however, should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct. United States v. Hasting, 461 U.S. 499, 505-507, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983); State v. Ubaldi, supra, 572. The minimal prejudice the defendant may have suffered from the references during argument to the impeachment testimony in this case plainly renders the sanction of reversal inappropriate.

We must, nevertheless, consider whether the prosecutorial misconduct claimed by the defendant warrants some disciplinary sanction against the attorneys for the state. “A judge should take or initiate appropriate disciplinary measures against a . . . lawyer for unprofessional conduct of which the judge may become aware.” Code of Judicial Conduct, Canon 3B (3). The isolated reference by King to DeStiso’s testimony that E had told him of “problems in the relationship, certain specific problems” was wholly innocuous in view of E’s testimony and that of others concerning the separation. These remarks of King cannot fairly be viewed as an attempt to bring before the jurors anything significant that they were not entitled to consider. Her improper reference to DeStiso may well have been inadvertent.

Scanlon’s comment that E had told DeStiso the defendant “would do anything for her” was less excusable. Juxtaposed as it was to Scanlon’s next remark, that the defendant “did the ultimate for his mother,” greater impact may have been intended. There is also less reason to suppose the reference to DeStiso was inadvertent since Scanlon must have been alerted by the interruption of King’s argument that use of the impeachment evidence as proof of motive would be improper. The fact that the trial court did not act more decisively, however, does extenuate Scanlon’s culpability in some degree. If the objections of defense counsel that interrupted King when she referred to DeStiso had been sustained and an appropriate caution issued to refrain from further mention of the impeachment testimony, Scanlon’s later reference thereto could well be viewed as deliberate defiance of the court. Instead, the court chose to deal with the situation simply by giving a curative instruction to the jury. Again, after Scanlon had made his more damaging reference to the impeachment testimony, the court failed to prohibit any further allusion thereto, stating its intention to deal with the matter in its charge to the jury, as it later did. It was undoubtedly error on the part of the trial court not to sustain immediately the defendant’s seasonable objection to Scanlon’s improper remark concerning E’s statement to DeStiso, rather than defer corrective measures until afterward, thus affording an opportunity for counsel to complete the offensive argument. State v. Couture, supra, 565. The court should have excused the jury, as the defendant had earlier suggested, and made it crystal clear that no further reference to the impeachment testimony for its content would be tolerated and that even inadvertent references to improper matters during argument were unprofessional. Although the court in charging the jury again pointed out the limited purpose for which E’s statements could be used, this cautionary instruction was not a sufficient judicial response to the defendant's objection. Curative instructions, though salutary, can never completely eradicate the effect of bringing improper matters before a jury. Id., 563. As we have previously indicated, however, the error was harmless in view of the ample evidence, apart from-E’s statements, that the defendant had a strong antagonism toward the victim arising from the manner in which the victim had treated his family.

Despite the court’s failure to respond adequately to the defendant’s seasonable objection by expressly banning further mention of the impeachment testimony as evidence of motive, Scanlon made no additional reference thereto. The trial court did not believe that Scanlon was attempting to defy its authority and apparently accepted his explanation, advanced when the defendant moved for a mistrial at the conclusion of the summation, that he did not intend to implicate the impeachment testimony in arguing the motive for the killing. From our more remote viewpoint, we cannot say that the trial record demonstrates the kind of flagrant misconduct that would require intervention by an appellate court to remand the case to the trial court for consideration of whether Scanlon’s conduct should be referred to a grievance committee for possible disciplinary action. See Code of Judicial Conduct, Canon 3B (3).

There is no error.

In this opinion the other justices concurred.

       This portion of the charge was as follows: “Now, in this case you may draw an unfavorable inference against the defendant for not producing his mother [E] to testify regarding answering the door and allowing [A] in the apartment to get some money from the defendant at 6:30 a.m. on February 4th, 1985.
      “You may draw an inference that the witness’s testimony would have been unfavorable to the defendant because if you find that, one, the witness was available and, two, the witness was one the defendant would naturally have produced.”

       The principal focus of the defendant’s attack on references to the absence of testimony by E in support of her son’s alibi is upon this argument of the state rather than upon the instruction given by the court. There is no significant difference, however, between the argument and the instruction. Our conclusion that the instruction was proper also means that we find no impropriety in this argument of the state.

       In State v. Whelan, 200 Conn. 743, 753-54, 513 A.2d 86, cert. denied, 479 U.S. , 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), this court approved the substantive use of prior written inconsistent statements, signed by a declarant having personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. In the present case it is not clear from the transcript whether E’s out-of-court statements to the police officer were contained in a document that she had signed.


text:
    Ruth Boland v. Ronald M. Catalano
    (12869)
    Peters, C. J., Healey, Shea, Callahan and F. Hennessy, Js.
    Argued December 10, 1986
    decision released February 17, 1987

      M. Katherine Webster-O'Keefe, for the appellant (plaintiff).

      Richard L. Nahley, with whom were Robert C. Steams, Jr., and, on the brief, Ronald M. Sullivan, for the appellee (defendant).
   Shea, J.

The plaintiff, Ruth Boland, brought suit against the defendant, Ronald M. Catalano, for the return of certain personal property and to recover an equal share of the money and property they had accumulated while living together in an unmarried relationship from 1971 to 1980. The trial court, Pickett, J., rendered judgment in accordance with the conclusion of the attorney trial referee that, while the plaintiff was entitled to the return of the specific items of personal property she sought, her major claims for relief based on contract and quantum meruit were not supported by the evidence. Because we agree with the plaintiff’s contention on appeal that the referee’s conclusion that the parties had not contracted to share property was wholly inconsistent with facts found in his report, we set the judgment aside and remand for a new trial.

The following facts appear to be undisputed. The parties began living together as unmarried lovers in 1971 in a house the defendant owned in the town of Sherman. In 1972 they became interested in building a new home on approximately twenty-seven wooded acres of land in the town of New Milford. Title to this realty was taken in the name of the defendant, who explained to the plaintiff “that it was easier to place it in his name because he had equity in another house and because they were not married.” While the defendant was solely liable for the mortgage loan on the New Milford property in the amount of $29,500, as well as on a loan from his mother of $13,320 obtained for the purchase of the property, the plaintiff helped to plan, build and improve the house into which the parties moved, and also cleared and landscaped portions of the grounds. The plaintiff does not claim to have contributed any funds toward the purchase of the real estate or construction of the house.

During their years together, the parties were regarded by some members of the public as husband and wife. During the period of their cohabitation, the plaintiff earned approximately $50,000, which she turned over to the defendant. The defendant, in turn, provided the plaintiff with an allowance, which she used for groceries, and for personal and household expenses. Although the parties maintained separate bank and charge accounts and filed separate income tax returns, the defendant used the plaintiffs bank account, and each had signatory power to use the other’s charge accounts. By agreement the plaintiff was responsible for the housework, grocery shopping, cooking and landscaping, while the defendant ran his automotive business.

In 1980, when the parties’ relationship ended, the plaintiff brought this action in four counts claiming: (1) a contractual right to a one half share of all the personalty accumulated during their relationship; (2) an equitable interest in the New Milford realty; (3) a right to restitution based on quantum meruit; and (4) compíete ownership of her own property. The trial court, Buzaid, J., rendered a judgment of dismissal of the second, third and fourth counts of the complaint for failure to make out a prima facie case. In Boland v. Catalano, 1 Conn. App. 90, 468 A.2d 1238 (1983), the Appellate Court set the judgment aside because the proof had been sufficient to establish a prima facie case, and remanded the action for a new trial. The case was subsequently referred to an attorney trial referee, who concluded in his memorandum that the plaintiff was entitled to recover only some furniture that she had purchased or received as gifts. In this appeal the plaintiff, who had filed an objection to acceptance of the referee’s report pursuant to Practice Book § 440; see Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); contends essentially that the trial court, Pickett, J., erred in rendering judgment in accordance with the referee’s report because (1) the conclusions reached by the referee are contrary to the facts found, and (2) the policy considerations underlying such conclusions are specious.

In his supplemental report the attorney trial referee found the following “ultimate fact”: “The parties agreed implicitly by their conduct and/or words to share their earnings and the fruits of their joint labor.” “A contract is an agreement between parties whereby one of them acquires a right to an act by the other; and the other assumes an obligation to perform that act. The obligation so assumed is called a promise. Contracts may be express or implied. These terms, however, do not denote different kinds of contracts, but have reference to the evidence by which the agreement between the parties is shown. If the agreement is shown by the direct words of the parties, spoken or written, the contract is said to be an express one. But if such agreement can only be shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances, then the contract is an implied one.” Skelly v. Bristol Savings Bank, 63 Conn. 83, 87, 26 A. 474 (1893); Hale v. Fred Benvenuti, Inc., 38 Conn. Sup. 634, 638-39, 458 A.2d 694 (1983). A reasonable conclusion logically following from the referee’s finding is that the parties created a contract to share their earnings and property accumulated during the relationship. Whether this contract is styled “express” or “implied” involves “no difference in legal effect, but lies merely in the mode of manifesting assent.” 1 Restatement (Second), Contracts § 4, comment a; see also E. Farnsworth, Contracts (1982) pp. 124, 142 n.2.

Despite the finding of an implied contract to share their earnings and the fruits of their joint labor as an “ultimate fact,” the referee effectively awarded all of the property acquired during the cohabitation to the defendant, except for a few items of furniture as mentioned. In his memorandum the referee concluded that “[t]he parties did not express the mutual assent necessary to form an express contract. . . . Similarly, the evidence as to the circumstances and conduct of the parties falls short of a standard required by Connecticut for an implied contract between the parties regarding the disposition of property.” “ ‘As this court has many times stated, conclusions that violate “law, logic or reason or are inconsistent with the subordinate facts” cannot stand.’ Delfino v. Vealencis, 181 Conn. 533, 543, 436 A.2d 27 (1980).” Edens v. Kobe Construction Co., 188 Conn. 489, 502-503, 450 A.2d 1161 (1982). The contradiction between the finding and conclusions of the referee, therefore, precludes us from sustaining the judgment accepting the referee’s report.

We are not persuaded by the defendant’s attempt to reconcile the referee’s conclusions with his finding of an agreement between the parties. The defendant interprets this finding to mean that the parties agreed to share jointly acquired property only as long as the relationship lasted. According to the defendant, “[t]he evidence presented at trial did not convince the referee that the parties agreed to or contemplated any exchange of ownership rights.” Belying this assertion, however, is the unqualified agreement to share found as an “ultimate fact” and also the subordinate fact found by the referee that “[t]he defendant referred to the New Milford house as being ‘our house’ to the plaintiff.” The referee found additional facts relating to the substantial amount of time and labor the plaintiff had devoted to building and maintaining the home. We therefore decline to read into the finding of an agreement between the parties “to share their earnings and the fruits of their joint labor” a concomitant finding that the parties intended no obligations arising from such agreement to survive the period during which they lived together.

A possible explanation of the discrepancy between the finding of an implied agreement to share and the recommended disposition of the case is that the referee viewed certain policy considerations as preventing the agreement between the parties from rising to the level of a contract. The term “agreement” has in some respects a wider meaning than “contract.” 1 Restatement (Second), Contracts § 3, comment a. “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Id., § 1. An agreement embodying promises that the law will not enforce is thus, by definition, not a contract.

In his memorandum, the referee stated that “Connecticut has refused to accord legal consequences to informed unmarried cohabitants. . . . Moreover, in the light of Connecticut’s public policy with respect to common law marriages, rights accruing to unmarried individuals who choose to cohabit cannot be adjudicated simply on the basis of the law of express contract.” The referee based these assertions on this court’s decision in McAnerney v. McAnerney, 165 Conn. 277, 334 A.2d 437 (1973), and the Illinois case of Hewitt v. Hewitt, 77 Ill. 2d 49, 394 N.E.2d 1204 (1979). It is conceivable that the referee may have viewed the refusal in this state to recognize common law marriages or to impose legal consequences simply by virtue of cohabitation between unmarried persons as militating against contractual enforcement of the implied agreement to share.

We agree with the trial referee that cohabitation alone does not create any contractual relationship or, unlike marriage, impose other legal duties upon the parties. In this jurisdiction, common law marriages are not accorded validity. Hames v. Hames, 163 Conn. 588, 593, 316 A.2d 379 (1972); State ex rel. Felson v. Allen, 129 Conn. 427, 432, 29 A.2d 306 (1942). The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit outside the marital relationship. McAnerney v. McAnerney, supra, 285. Ordinary contract principles are not suspended, however, for unmarried persons living together, whether or not they engage in sexual activity. Contracts expressly providing for the performance of sexual acts, of course, have been characterized as meretricious and held unenforceable as violative of public policy. E.g., Hill v. Estate of Westbrook, 95 Cal. App. 2d 599, 602, 213 P.2d 727 (1950); Wallace v. Rappleye, 103 Ill. 229, 249 (1882); Gauthier v. Laing, 96 N.H. 80, 84-85, 70 A.2d 207 (1950). “[T]he nonenforceability of agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and encompassed prostitution. To equate the nonmarital relationship of today to such a subject matter is to do violence to an accepted and wholly different practice.” Marvin v. Marvin, 18 Cal. 3d 660, 683, 557 P.2d 106, 134 Cal. Rptr. 815 (1976). In accordance with contemporary mores, our criminal statutes have been revised to decriminalize sexual activities between unmarried consenting adults not involving prostitution. General Statutes §§ 53a-65 through 53a-90. There is no longer, therefore, any basis for imposing civil sanctions for such behavior or for failing to recognize that contractual rights may develop in the course of a cohabitation that includes a sexual relationship just as they may arise between parties inhabiting the same household without any such relationship.

We agree with the view set forth in Marvin v. Marvin, supra, 665, that “[t]he courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. . . . In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.”

The decided trend among commentators and courts that have found an agreement between unmarried cohabitants is to endorse the enforcement of such agreement. See Levar v. Elkins, 604 P.2d 602 (Alaska 1980); Poe v. Estate of Levy, 411 So. 2d 253 (Fla. App. 1982); Artiss v. Artiss, 8 Fam. L. Rptr. (BNA) 2313 (Hawaii 1982); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. App. 1980); Donovan v. Scuderi, 51 Md. App. 217, 443 A.2d 121 (1982); Carnes v. Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (1981); Carlson v. Olson, 256 N.W.2d 249 (Minn. 1977); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77(1981); Joan S. v. John S., 121 N.H. 96, 427 A.2d 498 (1981); Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980); Morone v. Morone, 50 N.Y.2d 481, 407 N.E.2d 438, 429 N.Y.S.2d 592 (1980); Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978); Mullen v. Suchko, 279 Pa. Super. 499, 421 A.2d 310 (1980); In re Estate of Thornton, 81 Wash. 2d 72, 499 P.2d 864 (1972); In Matter of Estate of Steffes, 95 Wis. 2d 490, 290 N.W.2d 697 (1980); Kinnison v. Kinnison, 627 P.2d 594 (Wyo. 1981); see also M. Glendon, The New Family and the New Property (1981); G. Douthwaite, Unmarried Couples and the Law (1979); G. Blumberg, “Cohabitation Without Marriage: A Different Perspective,” 28 U.C.L.A. L. Rev. 1125 (1981); C. Bruch, “Property Rights of De Facto Spouses Including Thoughts on the Value of Homemakers’ Services,” 10 Fam. L.Q. 101 (1976); R. Casad, “Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again?” 77 Mich. L. Rev. 47 (1978); H. Folberg & W. Burén, “Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families,” 12 Willamette L.J. 453 (1976); H. Kay & C. Amyx, “Marvin v. Marvin: Preserving the Options,” 65 Calif. L. Rev. 937 (1977); J. Oldham & D. Caudill, “A Reconnaissance of Public Policy Restrictions Upon Enforcement of Contracts between Cohabitants,” 18 Fam. L.Q. 93 (1984).

We conclude that our public policy does not prevent the enforcement of agreements regarding property rights between unmarried cohabitants in a sexual relationship. To the extent that the existence of such a relationship between the parties may have been the basis for the referee’s conclusion that no enforceable contract resulted from their agreement to share, we reject that conclusion. Finding no support for the denial of the plaintiff’s claims in such notions of public policy as the referee’s memorandum suggests, we are faced, on the one hand, with his finding that the parties agreed “by their conduct and/or words to share their earnings and the fruits of their joint labor,” and, on the other hand, with his conclusion that the evidence provided insufficient proof of a contract. We view this conclusion as wholly inconsistent with the finding of an agreement, and thus discern no theory upon which to salvage the judgment rendered below.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       One subordinate fact found by the trial referee suggests that the plaintiff’s earnings were, in fact, used for the mortgage payments: “When the Plaintiff made a statement as to the amount of money she made, the Defendant said, ‘Don’t knock it—it pays the mortgage.’ ”

       Because the complaint of the plaintiff involved claims of both contract implied-in-fact and contract implied-in-law, we note that “[alternative counts seeking inconsistent remedies are generally permitted in the same complaint . . . . ” 3 Restatement (Second), Contracts § 378, comment a; see Fuessenich v. DiNardo, 195 Conn. 144, 148-52, 487 A.2d 514 (1985); cf. Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 72-73, 394 A.2d 191 (1978).

       After the referee had issued his memorandum, the plaintiff made a request for findings, which annexed a draft statement of facts, pursuant to Practice Book § 435. In response to that request, the referee issued his supplemental report, which adopted the plaintiffs draft finding of the implied contract.

       It has been noted that “[although fornication or cohabitation still violates the criminal law of a number of states, this has not caused contemporary courts to consider cohabitation contracts unenforceable. For example, in Tyranski v. Piggins, [44 Mich. App. 570, 205 N.W.2d 595 (1973)], even though ‘lewd and lascivious cohabitation’ was a crime, the court held that the cohabitation relationship did not violate the public policy of the state, since the relationship resembled a normal family relationship. [Id., 573-74.] Similarly, the Wisconsin Supreme Court recently found cohabitation contracts enforceable, even though cohabitation remains a crime in Wisconsin. [In Matter of Estate of Steffes, 95 Wis. 2d 490, 290 N.W.2d 697 (1980).]” J. Oldham & D. Caudill, “A Reeonnaisance of Public Policy Restrictions upon Enforcement of Contracts between Cohabitants,” 18 Fam. L.Q. 93, 128 (1984).


author: Callahan, J.

text:
    Ronald G. Sutton v. Raymond M. Lopes, Commissioner of Correction
    (12626)
    Peters, C. J., Shea, Dannehy, Callahan and Brenneman, Js. '
    Argued November 13, 1986
    decision released February 24, 1987

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (respondent).

      Denise Dishongh, deputy assistant public defender, with whom, on the brief, were Joan A. Leonard and G. Douglas Nash, assistant public defenders, for the appellee (petitioner).
   Callahan, J.

This is a petition for habeas corpus challenging the calculation of the petitioner’s statutory presentence credit. The respondent has appealed from the judgment of the trial court ordering that the petitioner’s time spent in custody under a sentence later vacated and declared void be credited as presentence time rather than as time served on a sentence.

The relevant facts are undisputed. On June 22,1979, the petitioner was arrested and committed to the custody of the commissioner of correction in lieu of bond in connection with the rape of a fourteen year old Wallingford girl. In a substitute information, he was charged with sexual assault in the first degree in violation of General Statutes § 53a-70, kidnapping in the second degree in violation of General Statutes § 53a-94, and threatening in violation of General Statutes § 53a-62. The petitioner pleaded guilty under the Alford doctrine. On August 14,1981, he was sentenced to three concurrent sentences: seven to twelve years on the first two counts, and one year on the third count, for a total effective sentence of not less than seven years nor more than twelve years.

Subsequently, the petitioner filed a petition for a writ of habeas corpus. Sutton v. Warden, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 266428 (November 30,1981), claiming that the sentences were imposed illegally in violation of the provisions of General Statutes § 53a-35 (c) (2). On April 28,1982, the trial court concluded that the petitioner’s sentences were void. The petitioner was allowed to withdraw his prior guilty pleas, and he entered pleas of not guilty to each of the three counts included in the substitute information, electing to be tried by a jury. See State v. Sutton, 197 Conn. 485, 487-94, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). On October 4, 1982, the petitioner was found guilty on each of the three counts included in the substitute information. The trial court sentenced the petitioner to three consecutive sentences: seven and one-half years to fifteen years on each of the first two counts, and one year on the third count, for a total effective sentence of not less than sixteen years nor more than thirty-one years.

The petitioner has remained in the custody of the respondent from June 22,1979, the date of his arrest, to the present. The relevant periods of the petitioner’s confinement have been summarized by the parties as follows: (1) June 22,1979, to August 14,1981, confinement from date of arrest to date of first sentence; (2) August 14,1981, to May 11,1982, time served under first sentence to the date the sentence was vacated; (3) May 11,1982, to October 5,1982, confinement prior to imposition of second sentence; (4) October 5,1982, to September 10,1985, confinement under second sentence. Subsequent to the October 5, 1982 sentences, the respondent recalculated the petitioner’s sentence credits to reflect the new sentences. On March 26, 1984, the petitioner filed this petition for a writ of habeas corpus challenging the respondent’s method of computing the petitioner’s sentence credits with respect to the second time period outlined above.

The principal issue before the habeas court, and now before this court, is what type of statutory sentence credit is appropriate for time spent in custody serving a sentence that was later vacated and declared void. The petitioner argues that the time served on the vacated sentence is presentence confinement and that General Statutes § 18-97 should apply for purposes of the time calculation. General Statutes § 18-97, which governs pretrial confinement credit for offenses committed prior to July 1, 1981, permits multiple crediting of presentence time in certain cases. Cf. General Statutes § 18-97d. Under this provision, therefore, since the petitioner is presently serving an effective sentence of thirty-one years on three separate consecutive sentences, he would receive multiple credit on his new sentence. See Delevieleuse v. Manson, 184 Conn. 434, 439, 439 A.2d 1055 (1981). The respondent, however, argues that General Statutes § 53a-38 (c) applies and that it provides that only “time served” on the vacated sentence be credited against the new sentence. Under this latter section, the credit would be calculated on a one for one basis since the new sentence would be calculated as having begun to run on the date of the commencement of the vacated sentence.

The trial court, relying on our decision in Moscone v. Manson, 185 Conn. 124, 127-28, 440 A.2d 848 (1981), rejected the respondent’s interpretation of General Statutes § 53a-38 (c). It ordered the respondent to allow the petitioner presentence credit for the period June 22, 1979, the date of the petitioner’s arrest, to October 5, 1982, the date the second sentence was imposed. We find no error.

General Statutes § 53a-38 (c) provides: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such a person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.” It is well established that “[cjredit for time previously served is constitutionally mandated by the double jeopardy clause of the fifth amendment of the United States constitution which is enforceable in state courts through the fourteenth amendment. North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); Benton v. Maryland, 395 U.S. 784, 794-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).” Moscone v. Manson, supra, 126-27. General Statutes § 53a-38 (c), in keeping with the mandate of North Carolina v. Pearce, supra, is a general statutory provision which requires that a prisoner be given full credit for time served on a vacated sentence. Moscone v. Manson, supra, 131. It “does not specify what type of ‘credit’ it refers to.” Id., 133 (Healey, J., concurring).

Although we did not directly address in Moscone whether time spent in custody pursuant to a sentence which is later vacated is subject to “time served” credit or “presentence credit,” we did indicate that the plain language of § 53a-38 (c) requires only that some form of credit for time served be awarded, and that it is irrelevant to any other statutory credit. Moscone v. Manson, supra, 131-32. Therefore, as the trial court correctly concluded, General Statutes § 53a-38 (c) does not bar crediting the time period in question as presentence confinement. This conclusion is supported by the constitutional mandate of North Carolina v. Pearce, supra, 721, which rests “ ‘upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean. . . . ’ ” (Emphasis added.) Moscone v. Manson, supra, 131. Viewed from this perspective, we cannot say that the trial court erred in concluding that any confinement prior to the time a sentence is vacated and declared void should be characterized as presentence confinement and credited pursuant to General Statutes § 18-97. See North Carolina v. Pearce, supra; cf .King v. United States, 98 F.2d 291, 293-94 (D.C. Cir. 1938).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1979)] Sec. 53a-70. sexual assault in the first degree: class b felony, (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 (2) 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] Sec. 53a-94. kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person. . . .”

       “[General Statutes] Sec. 53a-62. threatening: class a misdemeanor. (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes (Rev. to 1979) § 53a-35 (c) (2) provides: IMPRISONMENT FOR FELONY: INDETERMINATE; MAXIMUM AND MINIMUM SENTENCES. . . . (c) Except as provided in subsection (d) the minimum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows ... (2) for a class B, C or D felony the court may fix a minimum term of not less than one year nor more than one-half of the maximum term imposed, except that (A) where the maximum is less than three years the minimum term may be more than one-half the maximum term imposed or (B) when a person is found guilty under section 53a-59 (a) (1), section 53-59a, 53a-101 (a) (1) or 53a-134 (a) (2), the minimum term shall be not less than five years and such sentence shall not be suspended or reduced, or when a person is found guilty under section 53a-60c, the minimum term shall be not less than three years and such sentence shall not be suspended or reduced, or when a person is found guilty under section 53a-60b, the minimum term shall be not less than two years and such sentence shall not be suspended or reduced.”
      See State v. Sutton, 197 Conn. 485, 487-94, 498 A.2d 65 (1985), for a full discussion of proceedings relating to the petitioner’s first habeas corpus petition.

       Although the petitioner’s sentence was declared void on April 28,1982, it was not until May 11,1982, that the sentence mittimus on the first sentence was substituted with a continuance mittimus committing the petitioner to the custody of the respondent in lieu of bond.

       On September 10, 1985, this court set aside the sentence imposed on October 5,1982, and remanded the case for resentencing. State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985).

       “[General Statutes] Sec. 18-97. confinement under a mittimus: presentence confinement credit prior TO JUDY 1,1981. Any person receiving a fine or a sentence to a correctional institution or a community correctional center for an offense committed prior to July 1, 1981, shall receive credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution. Upon notification from the commissioner of correction, the clerk of the court shall enter such credit upon the order in the case of a fine, and upon the mittimus in the case of a sentence and it shall be the duty of the agency or person that held such person under such mittimus to inform the clerk of the court of the proper amount of such credit. In the case of a fine each credit day shall be computed at the rate of ten dollars. In no event shall credit be allowed in excess of the fine or sentence actually imposed.”
      See also: “[General Statutes] Sec. 18-98. confinement where bail UNOBTAINABLE: PRESENTENCE CONFINEMENT CREDIT PRIOR TO JULY 1, 1981. Any person who has been denied bail or who has been unable to obtain bail and who is subsequently imprisoned for an offense committed prior to July 1, 1981, is entitled to commutation of his sentence by the number of days which he spent in a community correctional center from the time he was denied or was unable to obtain bail to the time he was so imprisoned. The commissioner of correction shall, if such person has conformed to the rules of the institution, credit such person with the number of days to which the supervising officer of the correctional center where such person was confined while awaiting trial certifies such person was confined between the denial of bail to him or his inability to obtain bail and his imprisonment.”

       General Statutes § 53a-38 (c) provides: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such a person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.”

       We noted in Moscone v. Manson, 185 Conn. 124, 132 n.5, 440 A.2d 848 (1981), that in addition to separate good time credits, “the legislature has provided presentence confinement credit and good conduct credit for time served ‘in a community correctional center’ by a person ‘who was denied or unable to obtain bail.’ General Statutes §§ 18-98 and 18-98c.” The United States Supreme Court decision in North Carolina v. Pearce, 395 U.S. 711, 719 n.13, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), also indicated that the credit required for punishment already exacted is not limited to “time served credit,” but included “time credited ... for good behavior, etc.”