author: PALMER, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. JOSE W. ZAPORTA
    (15179)
    Peters, C. J., and Callahan, Borden, Berdon and Palmer, Js.
    Argued February 15
    officially released May 21, 1996

      Suzanne Zilser, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   PALMER, J.

The defendant, Jose W. Zaporta, was convicted after a jury trial of murder in violation of General Statutes § 53a-54a. He appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Zaporta, 36 Conn. App. 250, 650 A.2d 582 (1994). We granted the defendant’s petition for certification to appeal limited to the following issues: (1) whether the Appellate Court properly upheld the trial court’s refusal to permit the defendant to depose a witness pursuant to Practice Book § 791 (3); and (2) if the trial court’s ruling was improper, whether the error was harmless. State v. Zaporta, 232 Conn. 906, 653 A.2d 194 (1995). Although we conclude that the Appellate Court adopted an unduly stringent standard for determining whether the judicial authority in a criminal case should order the appearance and deposition of a prospective witness prior to trial because of that witness’ potential unavailability at trial, we nevertheless affirm the judgment of the Appellate Court.

The essential facts underlying the jury’s verdict are set forth in the opinion of the Appellate Court. “On the night of August 30, 1991, the victim, Ricardo Figueroa, and his girlfriend, Frances Carrasquillo, stood outdoors [on the steps of the residence at 200 South Marshall Street in Hartford] talking with several people. The area was illuminated primarily by streetlights. Around 11 p.m., the defendant, with his hands in his pockets, swiftly approached the victim. When the defendant was about three feet away from the victim, he pulled out a gun and shot the victim in the head and the leg. The victim died as a result of his injuries.” State v. Zaporta, supra, 36 Conn. App. 251. On the basis of information provided to the police by three eyewitnesses to the crime, Vannon Shelton, Jessica Luna and Reggie Thomas, each of whom identified the defendant as the shooter, the defendant was arrested and charged with murder. The defendant was convicted as charged and sentenced to a term of imprisonment of thirty-three years.

On appeal to the Appellate Court, the defendant claimed that the trial court had improperly denied his motion to depose Carrasquillo, a witness to the shooting, pursuant to Practice Book § 791 (3). The Appellate Court rejected the defendant’s contention, concluding that the trial court had not abused its discretion in denying the defendant’s motion because “[t]he reasons provided by the [defendant for the deposition] were not sufficient to demonstrate any likelihood that Carrasquillo would be unable to testify at trial.” Id., 257. The Appellate Court further concluded that § 791 (3) “requires the moving party to convince the court that the witness will be unable to testify at trial. The section does not require absolute certainty, but it requires a strong likelihood that the witness will be unable to testify. . . . The trial court must look at the totality of the circumstances to determine whether the moving party has met its burden.” (Citation omitted.) Id.

On appeal to this court, the defendant claims, first, that the “strong likelihood” standard adopted by the Appellate Court is unreasonably exacting and, second, that the trial court’s denial of his request to depose Carrasquillo constituted an abuse of discretion. We agree with the defendant that the “strong likelihood” test enunciated by the Appellate Court is too stringent. We need not determine whether the trial court properly denied the defendant’s § 791 (3) motion, however, because we conclude that the trial court’s failure to grant his request to depose Carrasquillo was harmless.

The following additional facts are necessary to our resolution of the certified issues. “Shortly after the murder, the police interviewed Carrasquillo, showing her three arrays of photographs, including one that contained a [photograph] of the defendant. When Carrasquillo saw the defendant’s photograph, she paused for a second or two before moving on to the next photograph. Carrasquillo did not identify the defendant, or anyone else, as the assailant.

“At the time of the defendant’s probable cause hearing in October and November, 1991, Carrasquillo had moved from where she lived at the time of the shooting to a different location in Hartford. Although the state had difficulty locating her, the defendant, with the help of a private investigator, was able to discover Carrasquillo’s whereabouts. Carrasquillo voluntarily attended the probable cause hearing. Because the trial court determined that her proposed testimony concerning her failure to identify a photograph of the defendant as the assailant would not be sufficient to rebut probable cause, the trial court denied the defendant’s request to call Carrasquillo as a witness at the probable cause hearing in accordance with General Statutes § 54-46a.

“[On] December [18,] 1991, the defendant filed a motion to preserve testimony of a material witness by means of a deposition. The defendant claimed that it was necessary to depose Carrasquillo because (1) she was a material witness who [had] failed to identify the defendant’s [photograph] as the assailant’s in a photographic array shown to her by the police and who, at the probable cause hearing, [had] told the defendant’s counsel that the defendant was not the man who had shot the victim, (2) at the time of the probable cause hearing the state had difficulty locating her, (3) the defense found it necessary to hire a private investigator to locate her for the defendant’s probable cause hearing, (4) she was a nervous fifteen year old, (5) she was two years older than the state’s witnesses, (6) one state’s witness had to be summoned by capias to appear at the probable cause hearing, (7) it was difficult to predict when the trial would take place, (8) it was generally difficult to find witnesses for this trial, and (9) unlike the testimony of the state’s witnesses, there was no opportunity to preserve her testimony at the probable cause hearing.” State v. Zaporta, supra, 36 Conn. App. 252-53.

After a hearing, the trial court, Damiani, J., denied the defendant’s motion to depose Carrasquillo, concluding that the defendant had not produced evidence sufficient to warrant a finding that Carrasquillo would be unavailable to testify at trial. In denying the motion, the trial court noted that the defendant’s concerns regarding Carrasquillo’s availability for trial “could be applied to every witness in a murder case and could turn every criminal trial into a series of minitrials.” Id., 253. The trial court, however, expressed its willingness to reconsider its ruling if the defendant were able to provide additional support for his claim that Carrasquillo would be unavailable at the time of trial.

“The trial took place almost a year after the motion to preserve testimony was filed. Carrasquillo did not testify. The state and the defendant stipulated to certain facts concerning Carrasquillo, which were reported to the jury. These were the detailed description of the assailant that Carrasquillo had provided to the police, and the facts that she did not know the defendant before the shooting, that a failed attempt to issue a subpoena to her had been made on the day before trial, that at the time of trial her whereabouts were unknown, and that neither the state nor the defendant was capable of producing her for trial. Further, the court gave the defendant leeway in questioning a police witness about Carrasquillo’s statements and the state discussed in its closing argument Carrasquillo’s failure to select the defendant’s photograph from the array.” Id., 253-54.

I

We first turn to the defendant’s claim regarding his burden of presenting sufficient evidence to satisfy the unavailability requirement of Practice Book § 791 (3). We conclude that the party seeking to invoke § 791 (3) to preserve testimony must establish to the trial court’s satisfaction that it is more likely than not that the witness will be unavailable at the time of trial.

At common law, a party in a criminal case had no right to depose a prospective witness, even upon proof that the witness was not likely to be available for trial. See, e.g., Minder v. Georgia, 183 U.S. 559, 562, 22 S. Ct. 224, 46 L. Ed. 328 (1902); State ex rel. Hanagan v. Armijo, 72 N.M. 50, 53, 380 P.2d 196 (1963); Westry v. Commonwealth, 206 Va. 508, 512, 144 S.E.2d 427 (1965). A majority of states, however, has promulgated statutes or rules providing for depositions in criminal cases upon a showing by the moving party that the deposition is necessary to preserve the testimony of a material witness who will be unavailable at the time of trial. In Connecticut, § 791 (3) authorizes the judicial authority, upon request of any party in a felony case, to “issue a subpoena for the appearance of any person at a designated time and place to give his or her deposition if such person’s testimony may be required at trial and it appears to the judicial authority that such person . . . [w]ill ... be unable to be present to testily at any trial or hearing.” The issue before us is what standard of proof the moving party must satisfy to establish for purposes of § 791 (3) that the witness “[w]ill ... be unable to be present to testily” at trial.

The defendant asserts that the “strong likelihood” standard adopted by the Appellate Court places too great a burden on the party seeking to depose a witness under § 791 (3) because, as a practical matter, it would preclude the preservation of testimony in many cases in which the moving party has reasonable grounds to believe that the witness will not appear at trial. The defendant further argues that because deposition testimony is not admissible in lieu of live testimony unless, at the time of trial, the moving party is able to establish that the witness is, in fact, unavailable, it is appropriate to set a less stringent standard for allowing depositions under § 791 (3) than that adopted by the Appellate Court. Accordingly, the defendant urges a construction of § 791 (3) that would allow a party to depose a material witness upon a showing of a “reasonable probability” that the witness will be unavailable to testify at trial. The state, on the other hand, maintains that any standard other than the “strong likelihood” test adopted by the Appellate Court would permit a defendant to use § 791 (3) as a discovery tool, which, the state claims, would add to the length and cost of pretrial proceedings and result in the harassment of prospective witnesses.

Both parties raise important policy considerations. As the defendant points out, “ ‘[i]t would be unreasonable and undesirable to require [the moving party] to assert with certainty that a witness will be unavailable for trial months ahead of time, simply to obtain authorization to take his deposition.’ ” United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir. 1993), quoting United States v. Sines, 761 F.2d 1434, 1439 (9th Cir. 1985). Indeed, “the denial of a deposition may lead to the denial altogether of the testimony of a material witness, [which results in] a limitation on the trial’s truthfinding function . . . .” United States v. Ismaili, 828 F.2d 153, 170 (3d Cir. 1987) (Becker, J., concurring and dissenting). We also recognize, however, the legitimacy of the state’s concern that “[a]llowing depositions too freely would create the [risk] that parties would seek to use depositions as a discovery device in criminal cases . . . .” United States v. Mann, 590 F.2d 361, 365 (1st Cir. 1978); In re United States, 348 F.2d 624, 625 (1st Cir. 1965). This concern, moreover, is not totally alleviated by the fact that the prospective witness’ deposition testimony is not admissible at trial unless the moving party can also demonstrate that he or she cannot secure the witness’ trial testimony.

We are persuaded that a standard requiring the moving party to establish that it is more likely than not that the prospective witness will be unavailable at the time of trial strikes an appropriate balance between these competing considerations. This standard is not unduly burdensome because it does not require the moving party to demonstrate with certainty that the witness will be unavailable to testify at the time of trial. “When a prospective witness is unlikely to appear at trial and his or her testimony is critical to the case, simple fairness requires permitting the moving party to preserve that testimony .... In that situation, justice usually will be served by allowing the moving party to take the deposition, thereby preserving the party’s ability to utilize the testimony at trial, if necessary.” United States v. Drogoul, supra, 1 F.3d 1552-53.

A less stringent test, however, would be incompatible with the mandate of § 791 (3) that the party seeking to take a deposition thereunder demonstrate that the witness “[w]ill ... be unable to be present to testify at any trial or hearing.” Moreover, because the moving party will be required to make a showing sufficient to establish that the witness is unlikely to be available at the time of trial, we are confident that trial courts will be able to ferret out any improper attempts to transform § 791 (3) into a tool for pretrial discovery. Accordingly, we conclude that a party seeking to depose a prospective witness under § 791 (3) must adduce evidence sufficient to satisfy the trial court that, in light of all of the relevant circumstances, it is more probable than not that the witness will not be available at the time of trial.

II

The defendant next claims that the trial court’s denial of his request to depose Carrasquillo constituted an abuse of discretion entitling him to a new trial. The defendant also asserts that the trial court’s alleged impropriety was so harmful that it deprived him of his constitutional right to present a defense. We need not reach the defendant’s claim that the trial court improperly denied his request pursuant to § 791 (3) because we conclude that the defendant suffered no harm as a result of the trial court’s denial of his motion.

As previously noted, the defendant and the state entered into two stipulations regarding Carrasquillo, each of which was read to the jury. The first stipulation provided in relevant part that Carrasquillo had told Hartford police detective James Rovella that “the assailant, or the assailing person, was a Hispanic male, five foot nine to five foot eleven inches, thin build, long black curly hair, mustache, beard, in his thirties, [who] wore a black baseball cap, white tee shirt, black nylon jacket, black jeans, and black sneakers.” The second stipulation provided that Carrasquillo “did not know [the defendant] either before or after the incident. . . . [D] espite the issuance of subpoenas to produce her whereabouts here at trial . . . [Carrasquillo’s] present whereabouts are unknown, and . . . both sides have been incapable of producing her physical appearance.” In addition, Rovella testified that Carrasquillo had viewed a photographic array that included a photograph of the defendant, and that she had been unable to identify any of the photographs as that of the shooter. Rovella also testified that Carrasquillo had told him that she had gotten a good look at the shooter as he approached and shot the victim.

Furthermore, the state, during closing argument, reviewed the stipulations and Rovella’s account of his interview with Carrasquillo and expressly acknowledged that Carrasquillo had “in no uncertain words [stated] that she did not see or recognize the man who shot [the victim] in . . . [the photographic] array [shown to her by the police].” The defendant, in his closing argument, emphasized the importance of the stipulations: the fact that the perpetrator’s identity was the key issue in the case; Carrasquillo’s description of the shooter; and Carrasquillo’s failure to select the defendant’s photograph from the array.

The defendant contends that this evidence did not eliminate the harm that, he asserts, resulted from the trial court’s denial of his request to depose Carrasquillo. In support of this contention, he maintains, first, that the jury might have found Carrasquillo’s deposition testimony more credible or more persuasive than the statements contained in the stipulations. The defendant, however, has provided nothing to substantiate this assertion, and we are not aware of anything in the record to support it. We therefore reject the defendant’s argument.

The defendant further argues that the stipulations were not an adequate substitute for the testimony that he claims he would have elicited from Carrasquillo had he been permitted to depose her. Specifically, the defendant points to Carrasquillo’s statement to defense counsel, allegedly made after she had observed the defendant in court on the day of the probable cause hearing, that the defendant was not the shooter. There is no indication in the record, however, that the defendant sought to obtain the state’s agreement to stipulate to this alleged statement by Carrasquillo. Furthermore, the defendant did not raise a claim in the trial court that the stipulation was in any way incomplete or inadequate. Indeed, as far as can be gleaned from the record, the state agreed to stipulate to everything to which the defendant asked it to stipulate. Having failed to request that the state agree to the admission into evidence of Carrasquillo’s alleged statement to defense counsel, the defendant cannot now be heard to complain that the stipulations were insufficient. Accordingly, the defendant has failed to demonstrate that he was harmed by the trial court’s denial of his request to depose Carrasquillo under § 791 (3).

The judgment is affirmed.

In this opinion PETERS, C. J., and CALLAHAN and BORDEN, Js., concurred.

BERDON, J.,

concurring. I concur in the majority’s opinion, but I am perplexed at its reluctance to apply the standard regarding the deposing of a potentially unavailable witness in a criminal case. For the sake of providing guidance to our trial courts, I believe it is important to apply that standard to the facts before us today. In this case, I would conclude that it was “more likely than not that [Frances Carrasquillo would] be unavailable at the time of trial.” Accordingly, the trial court improperly denied the defendant’s motion to depose Carrasquillo. I also conclude, however, that that denial was harmless error for the reasons set forth in the majority opinion.

       Practice Book § 791 provides: “In any case involving an offense for which the punishment may be imprisonment for more than one year, the judicial authority, upon request of any party, may issue a subpoena for the appearance of any person at a designated time and place to give his or her deposition if such person’s testimony may be required at trial and it appears to the judicial authority that such person:
      “(1) Will, because of physical or mental illness or infirmity, be unable to be present to testify at any trial or hearing; or
      “(2) Resides outside of this state, and his presence cannot be compelled under the provisions of Gen. Stats., § 54-82Í; or
      “(3) Will otherwise be unable to be present to testify at any trial or hearing; or

        “(4) Is an expert who has examined a defendant pursuant to Secs. 757 through 760 and has failed to file a written report as provided by such section.”

       The shooting apparently stemmed from a prior encounter between the defendant and the victim. As the Appellate Court noted, “[o]ne month earlier, the defendant, the victim, and a third person, Raymond Zukowski, had engaged in a fight outside the defendant’s house. During this altercation, the defendant sliced Zukowski’s temple with a knife. The victim and Zukowski retaliated by beating the defendant with golf clubs. As a result of this beating, the defendant was taken to the hospital. The defendant threatened to avenge his injuries.” State v. Zaporta, supra, 36 Conn. App. 251-52.

       General Statutes § 54-46a provides in relevant part: “(b) Unless waived by the accused person or extended by the court for good cause shown, such [probable cause] hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. ... At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause. . . .”

       The trial court stated: “I'm going to deny your motion. ... If you can come back to me with something to say that this young girl is leaving, or whatever — is going to be physically not within the state of Connecticut in the very near’ future. . . . The thing is, I would just say that if you can come within the third ground under section 791, that she’ll be unable to be present to testify at any trial — bring that to my attention, and I’ll order the deposition.”

       Because the proper construction of a Practice Book section involves a question of law, our review of the Appellate Court’s determination is plenary. See State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981).

       Depositions also may be 1 aken in federal criminal proceedings under rule 15 of the Federal Rules of Criminal Procedure, which provides in relevant part: “(a) Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be t aken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is detained pursuant to section 3144 of title 18, United States Code, the courl on written motion of the witness and upon notice to the parties may direct that the witness’ deposition be taken. After the deposition has been subscribed the court may discharge the witness. . .

       As the defendant, acknowledges, deposition testimony obtained under § 791 is not admissible at any trial or hearing unless the moving party can demonstrate that he or she cannot secure the witness’ testimony at the trial or hearing. See Practice Book §§ 793 and 803.

       In Connecticut, depositions for discovery purposes are not permitted in criminal cases. See Practice Book §§ 788 through 805; State v. Darby, 19 Conn. App. 445, 455, 563 A.2d 710, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

       We recognize that, under certain circumstances, a trial court’s refusal to permit a defendant to depose a witness prior to trial because of his or her potential unavailability may infringe upon a defendant’s constitutional right to present a defense. In this case, however, the state and the defendant stipulated to the facts to which Carrasquillo would have testified. We conclude, therefore, that the trial court’s refusal to permit the defendant to depose Carrasquillo, even if wrongful, did not rise to the level of a constitutional violation. Because we find that any error in the trial court’s denial of the defendant’s motion was nonconstitutional in nature, the defendant bears the burden of demonstrating the harmfulness of the court’s alleged error. State v. Wilkes, 236 Conn. 176, 188, 671 A.2d 1296 (1996).


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    PAUL STEWART v. TUNXIS SERVICE CENTER ET AL.
    (15249)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued January 11
    officially released May 21, 1996

      David M. Reilly, with whom was Allen J. Segal, for the appellant (plaintiff).

      Loida John-Nicholson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   BORDEN, J.

The dispositive issue in this appeal is whether the workers’ compensation review board (board) properly determined that the failure of a workers’ compensation commissioner (commissioner) to issue his finding and award within 120 days of a hearing, as set forth in General Statutes § 31-300, did not invalidate the commissioner’s decision. The plaintiff, Paul Stewart, appeals from a decision of the board concluding that (1) the commissioner’s decision was valid despite his failure to comply with the 120 day time period set forth in § 31-300, and (2) the plaintiff was not permanently and totally disabled. The plaintiff claims that he is entitled to a new hearing because the commissioner had failed to issue an opinion within the statutory time period. The defendant second injury fund (fund) responds that the time period in § 31-300 is directory and that, in the absence of a showing of prejudice due to the delayed award, the plaintiff is not entitled to a new hearing. We conclude that the time period is mandatory and that the commissioner’s decision was invalid because of its untimeliness, but that the invalidity was subject to waiver by the plaintiff. Accordingly, we reverse the decision of the board and remand the case for a determination of whether the plaintiff waived his right to challenge the commissioner’s untimely issuance of his decision.

The following facts and procedural history are not in dispute. On May 14, 1985, while employed as an auto mechanic by the named defendant, Tunxis Service Center (Tunxis), the plaintiff suffered a work-related injury to his right foot. On September 25, 1987, he injured his right wrist, as a result of a fall caused by the prior injury to his foot. The plaintiff received an impairment rating of 35 percent permanent partial disability of his foot and 22 percent permanent partial disability of his wrist, and collected permanent partial disability benefits pursuant to General Statutes § 31-308a. After recuperating from the injury to his foot, the plaintiff returned to work at Tunxis, but was discharged on November 18, 1987.

For several years after being discharged from Tunxis, the plaintiff collected discretionary benefits under § 31-308a, participated in vocational training, and engaged in job searches, but he was unable to hold down a regular job. The plaintiff subsequently moved for a hearing in order to determine whether he was permanently and totally disabled and thus eligible for workers’ compensation benefits pursuant to General Statutes § 31-307 or, in the alternative, was entitled to additional discretionary benefits under § 31-308a. The fund contested the plaintiff’s claim that he was totally disabled.

Hearings were held before the commissioner on December 4,1991, and on March 5,1992, and the record was closed on May 26, 1992. On March 26, 1993, which date was beyond the 120 day time period set forth in § 31-300; see footnote 1; the commissioner issued his finding and award, concluding that the plaintiff had not established that he was totally disabled, but also concluding that the plaintiff was entitled to discretionary benefits for an additional six months. The plaintiff appealed to the board from the commissioner’s decision, claiming that the commissioner’s failure to issue his decision within 120 days of the conclusion of the hearing had rendered the decision invalid.

The board concluded that the plaintiff was entitled to a new hearing only if he could establish prejudice due to the delayed issuance of the commissioner’s decision. The board further determined that the plaintiff had not demonstrated the requisite prejudice and, accordingly, upheld the commissioner’s decision. This appeal followed.

The plaintiff claims that the board’s decision was incorrect because it failed to recognize that the commissioner’s late decision was invalid. The fund responds that the time period in § 31-300 is a directory provision, and that unless the plaintiff can demonstrate prejudice resulting from the untimely decision, the commissioner’s decision remains valid. We disagree with the fund’s contention that the legislature intended the time period in § 31-300 to be directory. We conclude that § 31-300 involves a mandatory time period. We also conclude, however, that any lack of timeliness may be waived, either expressly or by conduct.

“Well established principles of statutory construction govern our determination of whether a statutory time period is mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ...” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Under this analysis, if a statutory time period is mandatory in nature, a showing of prejudice is not necessary to a conclusion that a failure to comply with the time period will invalidate the untimely action.

We begin with the language of the statute. In urging that we conclude that the time period in § 31-300 is directory, the fund relies on the legislature’s use of the word “shall,” and argues that our cases have held that “shall” may have a meaning that is directory rather than mandatory.

The fund is correct that we have concluded that the “use of the word ‘shall,’ though significant, does not invariably create a mandatory duty.” Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989). The usual rule, however, is that “[t]he legislature’s use of the word ‘shall’ generally evidences an intent that the statute be interpreted as mandatory.” Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991). The legislature’s use of the word “shall” in § 31-300, therefore, although not conclusive, suggests that the time period was intended to be mandatory.

Furthermore, the legislature, rather than phrasing the amendment to § 31-300 in affirmative terms unaccompanied by negative words, as is often done with directory provisions; see, e.g., Winslow v. Zoning Board, 143 Conn. 381, 387-88, 122 A.2d 789 (1956) (statutory provision that “petition shall be scheduled for at least one public hearing to be held within sixty days” held directory because time limitation stated in affirmative terms); instead chose the negative phrasing “but no later than one hundred twenty days.” The legislature’s use of such negative terminology suggests that it intended § 31-300 to be mandatory.

The legislative genealogy and the legislative history of § 31-300 reinforce this linguistic interpretation. Prior to 1985, § 31-300 did not specify the time period within which a workers’ compensation commissioner was required to issue an award. The relevant provision in that statute provided that “[a]s soon as may be after the conclusion of any hearing, the commissioner shall send to each party a written copy ofhis award.” General Statutes (Rev. to 1985) § 31-300. In a case decided under that statute, the Appellate Court determined that a judgment rendered by a commissioner more than one year after the conclusion of a hearing was valid because, unlike other statutes that set a specific time period within which judgment must be rendered, § 31-300 did not contain a specific time period. Because the legislature could have included a specific time period, but had chosen not to do so, the Appellate Court concluded that the commissioner’s decision was valid. Sullivan v. Northwind Energy Insulators, Inc., 2 Conn. App. 689, 690-91, 483 A.2d 618 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

Shortly after the Appellate Court decided Sullivan, the legislature added the specific time period to § 31-300. As amended by No. 85-64, § 1, of the 1985 Public Acts, the relevant provision of § 31-300 reads: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his award.” (Emphasis added.) Although there is nothing in the legislative history of Public Act 85-64 to indicate that the amendment was specifically intended to address the Appellate Court’s decision in Sullivan, the addition of a specific time period to § 31-300 so soon after the Appellate Court based a decision on the lack of such a time period suggests that the amendment was, indeed, a response to Sullivan.

Furthermore, because ordinarily “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous”; (citation omitted; internal quotation marks omitted) State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993); we must attempt to give independent meaning to the 120 day time period that was added to § 31-300 by the amendment. If, prior to the amendment, the statutory directive that “[a]s soon as maybe after the conclusion of any hearing, the commissioner shall send to each party a written copy of his award” was merely directory, then the commissioner was required, within a reasonable time after the hearing, to send a copy of his award, but failure to issue a decision in a timely manner would not, as the Appellate Court decided in Sullivan, invalidate the commissioner’s actions. If the insertion of the 120 day time period did not change the provision into a mandatoxy one, then the amendment would have had no purpose, because the words “but no later than one hundred twenty days after such conclusion” would merely have indicated a time period within which the commissioner should send his award but, again, noncompliance would not invalidate the commissioner’s actions. In that event, the language added in the amendment would have no independent meaning.

Moreover, when the bill that ultimately became the amendment was considered in the legislature, Senator Kenneth T. Hampton remarked that “[t]his bill would require the Workers’ Compensation Commissioner’s decisions on tested claims to be issued within 120 days after the conclusion of the hearing.” (Emphasis added.) 28 S. Proc., Pt. 4, 1985 Sess., p. 1106. Representative Jacob P. Rudolf made a similar remark: “[T]he bill provides new language requiring the Commissioner to submit a written decision of his results, no later than 120 days.” (Emphasis added.) 28 H.R. Proc., Pt. 6, 1985 Sess., p. 2100. These remarks, in combination with the foregoing analysis, lead us to conclude that the legislature intended as the essence of the thing to be done, not simply the issuance of a decision, but the issuance of a timely decision. This legislative history supports our conclusion that the time period in § 31-300 is mandatory.

Although a mandatory statutory provision typically must be strictly complied with, the parties may waive noncompliance, either explicitly or implicitly by conduct. Federal Deposit Ins. Corp. v. Hillerest Associates, 233 Conn. 153, 173, 659 A.2d 138 (1995). “Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citations omitted; internal quotation marks omitted.) Hensley v. Commissioner of Transportation, 211 Conn. 173, 179, 558 A.2d 971 (1989).

Our conclusion that the commissioner was required to observe the mandatory time period in § 31-300 does not resolve the rights of the parties in this case because there has not been a determination of whether the plaintiff waived his right to challenge the commissioner’s untimely decision. Because the board did not consider the issue of waiver, we therefore remand the case to the board in order that it may resolve the issue of waiver.

The decision of the board is reversed and the case is remanded to the board for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 31-300 provides: “Award as judgment. Interest. Attorney’s fee. Procedure on discontinuance or reduction. As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original findings and award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such findings and award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. No employer or insurer shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the ir\jured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance or reduction in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance or reduction in writing. The commissioner shall render his decision within fourteen days of receipt of such notice and shall forward to all parties to the claim a copy of his decision not later than seven days after his decision has been rendered. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any wrongful payments received from the day designated by the commissioner as the effective date for the discontinuance or reduction of benefits. Any employee whose benefits for total incapacity are discontinued under the provisions of this section and who is entitled to receive benefits for partial incapacity as a result of an award, shall receive those benefits commencing the day following the designated effective date for the discontinuance of benefits for total incapacity. In any case where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments.” (Emphasis added.)

       The plaintiff appealed from the decision of the board to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Although Tunxis is the named defendant in this action, it is not a party to this appeal. The fund is the only defendant participating in the appeal.

       General Statutes § 31-308a provides: “Additional benefits for partial permanent disability, (a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partialpermanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
      “(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.”

       General Statutes § 31-307 provides in relevant part: “Compensation for total incapacity, (a) If any injury lor which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of his average weekly earnings as of the date of the injury, calculated pursuant, to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity. . . .”

       As to the issue of waiver, the fund points out that although six months had passed after the commissioner’s findings and award should have been issued, the plaintiff did not object and continued to collect benefits during that time. The fund contends that the plaintiff must be deemed to have waived noncompliance with the 120 day time period because it was only when the plaintiff received an adverse decision that he objected and challenged the untimeliness of the commissioner’s decision.

       Although ordinarily it is the commissioner, rather than the board, that makes factual findings in a workers’ compensation case, in this instance it is more appropriately the board that must determine whether there was a waiver of the right to challenge an untimely decision of the commissioner. Cf. Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 669 A.2d 620 (1996) (Appellate Court decided issue of whether plaintiff had waived untimely judgment by trial court).