text:
    Adria Esaw v. Stephen C. Friedman et al.
    (13865)
    Shea, Glass, Hull, Borden and F. X. Hennessy, Js.
    Argued December 14, 1990
    decision released February 26, 1991

      Dennis M. Laccavole, for the appellant (plaintiff).

      J. Kevin Golger, for the appellees (defendants).
   Borden, J.

The principal issues of this appeal are whether jurors maybe permitted to take notes during a trial and, if so, whether the trial court is required to preserve those notes for purposes of an appeal. We hold that the trial court has discretion to permit note-taking by the jurors, and that the notes are for the confidential use of the jurors only and should not be preserved.

The plaintiff appeals from the judgment of the trial court rendered upon a jury verdict in her favor in the amount of $2000. The plaintiff claims that the court: (1) improperly permitted the jurors to take notes during the trial and to use those notes during their deliberations; (2) should have marked the jurors’ notes for identification; and (3) should have set aside the verdict as inadequate. We affirm the judgment.

This appeal arose out of an accident in 1985 in which an automobile operated by the named defendant, Stephen C. Friedman, struck an automobile operated by the plaintiff, Adria Esaw, from the rear. The plaintiff had slowed down for traffic prior to entering the Connecticut Turnpike from an entrance ramp. The plaintiff claimed that as a result of the defendant’s negligence she suffered the following injuries: acute injury to her cervical and lumbar spine; severe headaches, vertigo and nausea; severe pain and numbness in her arms, shoulders and chest, radiating into her legs, knees and feet; and an aggravation of a prior neck and back injury. The jury answered interrogatories finding the defendant negligent, and the plaintiff 20 percent contributorily negligent. The jury awarded damages of $2500 to the plaintiff, reduced by $500 attributable to her contributory negligence, for a net award of $2000. The plaintiff moved to set aside the verdict claiming, inter alia, that the verdict was inadequate and that the court should not have permitted the jurors to take notes during the trial or to take those notes into the jury deliberation room. The plaintiff also moved for an additur. The court denied the motions and rendered judgment in accordance with the verdict. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

I

The plaintiff first claims that the trial court improperly permitted the jurors to take notes during the trial and to use them during deliberations. We disagree.

At the beginning of the trial, the court informed the jurors that they would be permitted to take notes, but cautioned them regarding the proper use of the notes. In its final instructions at the end of the trial, the court again referred to its initial instructions permitting the jurors to take notes and repeated its warnings to them regarding the use of the notes.

Although the plaintiff claims that both she and the defendants objected to the court’s initial instruction permitting such a procedure, the record does not reflect any such objection. Furthermore, the plaintiff’s only exception to the court’s final instruction in this regard was that the court should have made it clearer that the notes were not evidence and were to be used only to refresh the jurors’ recollection of the evidence. Thus, it is plain that the plaintiff did not raise an objection on the record to the procedure of note-taking by the jurors until she moved to set aside the verdict. Although in other circumstances such a belated objection might preclude review, in this case we exercise our appellate discretion to review the plaintiff’s claim because of its importance to the proper management of trials by trial judges. Thus, it is in the interests of justice and the public welfare that the issue be decided. See Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971).

We acknowledge that the long-standing judicial understanding in this state has been to bar jurors from taking notes during a trial and, a fortiori, from using such notes in their deliberations. Although we have been unable to discover any particular Connecticut case or rule of practice as the source of that understanding, it may stem from what has been thought to be a common law rule forbidding such a practice. Yet, the origins of such a common law rule are “as obscure as the origin of the jury itself”; comment, “Taking Note of Note-Taking,” 10 Colum. J.L. & Soc. Probs. 565, 574 (1973-74); which has been described by the same commentator as “shrouded in the mists of common law antiquity.” Comment, 10 Colum. J.L. & Soc. Probs., supra, 565. “ ‘In the standard texts on jury trial such as History of Trial By Jury by William Forsyth . . . and Trial By Jury by Robert von Moschzisker, late Chief Justice of Pennsylvania, nothing can be found as to the origin or reason for this rule.’ 55 Dick. L. Rev. 335 (1951).” Comment, 10 Colum. J.L. & Soc. Probs., supra, 574 n.43.

The origin of the understanding in this state may lie in an overly broad reading of Clark v. Whitaker, 18 Conn. 543 (1847), on which the plaintiff in this case relies. In that case, a document used to refresh the recollection of two witnesses, but never introduced into evidence, was mistakenly given to the jury and affected the verdict. Id., 545. The court stated: “The jury room cannot be guarded with too much vigilance and jealousy. Courts must reject all evidence not received on the trial, and must repel every foreign influence, which may affect the minds of the jury.” Id., 549. This court reiterated that principle in Gimelli v. Waterbury Cadillac Co., 109 Conn. 722, 727, 145 A. 563 (1929), where certain preliminary pleadings were mistakenly given to the jury. Neither Clark nor Gimelli, however, can properly be read as bearing on the issue of note-taking by jurors; it can hardly be said that a juror’s own notes, reflecting the thoughts or questions that may have arisen in his mind during the trial or reflecting his attempts to preserve in writing his recollections of the evidence, constitute a “foreign influence, which may affect the minds of the jury.” Clark v. Whitaker, supra.

Whatever the source of that understanding, however, we now abandon it, and conclude that a trial court has discretion to permit jurors to take notes during the trial. We reach that conclusion on the basis of three considerations: (1) the overwhelming weight of authority supporting such discretion; (2) a critical evaluation of the arguments for and against such a procedure; and (3) sound judicial policy and our abiding faith in the common sense of jurors.

The vast majority of jurisdictions that have considered the issue entrust the decision of whether jurors should be permitted to take notes to the sound discretion of the trial court. The federal courts are virtually unanimous; and our sister states nearly

so. Indeed, the American Bar Association Standards for Criminal Justice provide that jurors should have the right to do so even without the permission of the trial judge. “Jurors may take notes regarding the evidence presented to them and keep these notes with them when they retire for their deliberations. Such notes should be treated as confidential between the juror making them and the other jurors.” Ill A.B.A. Standards for Criminal Justice (2d Ed. 1980) § 15-3.2. The commentary to this section states that “[t]he thrust of this standard is to permit note taking by jurors as a matter of right without permission of the court.” Ill A.B.A. Standards for Criminal Justice, supra, § 15-3.2; id., commentary, p. 15.84. By contrast, rule 513 (e) of the Uniform Rules of Criminal Procedure leaves the matter to the trial court’s discretion. See III A.B.A. Standards for Criminal Justice, supra.

The principal arguments against such a procedure are that: (1) the best note-taker will dominate the jury; (2) since jurors are not trained in note-taking, they will focus on trivial matters to the detriment of vital facts; (3) a dishonest juror may falsify his notes; (4) debate within the deliberation room over whose notes are more accurate will detract from the deliberation process; and (5) the process of taking notes will distract jurors from watching and listening to the witnesses and will cause them to miss testimony. Ill A.B.A. Standards for Criminal Justice, supra, p. 15.85; D. Petroff, “The Practice of Jury Note Taking—Misconduct, Right, or Privilege?” 18 Okla. L. Rev. 125, 130 (1965).

Each of these arguments, however, carries with it a legitimate response. (1) It is likely that certain jurors will be more influential with their colleagues than others in any event, and unlikely that the process of note-taking alone will distort the deliberative process. (2) Jurors are no less trained in note-taking than people in other walks of life who often rely on notes to record and recollect their perceptions, and the risk that a case may turn on an imperfect or faulty set of notes is no greater than that it may turn on an imperfect or faulty memory. (3) A dishonest juror may equally “falsify” his memory, and the presence of the other jurors’ notes may well be more persuasive in correcting that falsity. (4) There is no more risk that jurors’ notes will prompt debate over whose notes are better than reliance solely on the jurors’ memories will prompt debate on whose memory is better. (5) The risk that taking notes may distract a juror is no greater than the possibility that taking notes may increase the juror’s attention to the testimony.

We need not decide whether, in the abstract, the risks involved in the process of note-taking by jurors outweigh or are outweighed by the benefits that may flow therefrom. We are convinced “that the benefits are substantial enough to allow trial judges to decide, in each case, whether note-taking should be permitted.” United States v. Maclean, 578 F.2d 64, 66 (3d Cir. 1978). We are also convinced, as was the court in United States v. Maclean, supra, that “the dangers of note-taking can be substantially avoided by proper instruction to the jury.” The court should instruct the jurors that their notes are merely aids to their memories and should not be given precedence over their independent recollection of the evidence, that a juror who has not taken notes should rely on his recollection of the evidence and should not be influenced by the fact that other jurors have done so, and that they should not allow their note-taking to distract them from paying proper attention to the evidence presented to them. Id. The trial court’s instructions in this case sufficiently conveyed these cautions. See footnotes 5 and 6, supra.

Finally, considerations of sound judicial policy and faith in the common sense of jurors lead us to conclude that a trial judge should have the discretion to permit such a procedure. The human memory is fallible, and notes may significantly aid in recalling evidence. Judges sitting as trial courts routinely take notes, as do students, business persons, journalists and people in all walks of life who are intent on being able to recall later the specifics of what they see and hear. As a matter of ordinary human experience, we usually have no compunctions about the ability of these people to engage in the process and use its product appropriately. There is no valid reason to treat jurors, who after all are chosen from the same pool of experience, any differently. Furthermore, we today have held that it is within the trial court’s discretion to permit jurors to ask questions of witnesses. See Spitzer v. Haims & Co., 217 Conn. 532, 587 A.2d 105 (1991). Permitting jurors to take notes may aid them in preserving for their own memories those questions that they may wish to pose, as the trial court specifically recognized in this case. See footnotes 5 and 6, supra.

Applying these principles to the facts of this case, we conclude that the trial court was within its discretion in permitting the jurors to take notes. The plaintiff does not claim, nor do we perceive, any abuse of that discretion.

II

The plaintiff next claims that the trial court improperly refused to preserve the jurors’ notes for purposes of appellate review. Relying on the familiar principle that a trial court has no discretion to refuse to mark an exhibit for identification; see, e.g., State v. Silva, 201 Conn. 244, 253, 513 A.2d 1202 (1986); Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332 (1964); she argues that this refusal was manifestly improper requiring reversal because it deprived her of the ability to demonstrate on appeal that the notes improperly affected the verdict. This claim is without merit.

First, the plaintiff’s argument incorrectly assumes that there would be something improper about the notes of the jurors affecting the verdict. Implicit in our conclusion in Part I of this opinion that the jurors were properly permitted to take notes, however, is the expectation that, having done so, they were likely to use them in their deliberations, and that such a use would be proper.

Second, collecting and preserving jurors’ notes would be inconsistent with the purpose of permitting jurors to take notes in the first place. That purpose is to enable any individual juror, if he sees fit, to make a private, confidential written record of his thoughts, perceptions and questions so that he may better be able to recall the evidence and to engage in deliberations at the appropriate time. That is the reason the authorities have held that the notes are confidential to their maker and only to be disclosed to the other members of the jury. See United States v. Maclean, supra, 66. Requiring that the notes be preserved would create the impermissible risk that jurors who wish to take notes would be inhibited from doing so.

Third, the plaintiff’s argument founders on the well established rule “ ‘which excludes, as immaterial, evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict.’ ” (Emphasis added.) Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975), quoting C. McCormick, Evidence (2d Ed.) § 68, pp. 148-49. Thus, jurors may not, in the context of an attempt to set aside a verdict on the ground of improper jury conduct, give testimony that implicates their mental processes; Aillon v. State, supra, 551-52; which are insulated from the scrutiny of others. Examining the notes they took during the course of the trial would be a direct threat to the proper insulation of those processes. If the notes may not be examined, therefore, they should not be preserved and collected.

Thus, the reliance of the plaintiff on the cases requiring a trial court to mark objects or documents for identification is misplaced. “The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review" Kraus v. Newton, 211 Conn. 191,194-95, 558 A.2d 240 (1989). At least in the absence of a showing of some extraordinary circumstance, there is no basis for appellate review of jurors’ notes. To say, as the plaintiff’s argument suggests, that she should be permitted to examine them, or that the court on appeal should examine them, in order to determine whether they improperly affected the verdict would be to violate the sanctity of the jurors’ deliberative process. We decline to do so.

Ill

The plaintiff’s final claim, namely, that the verdict was inadequate as a matter of law, requires little discussion. The plaintiff argues that the award was sufficiently low so as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption, particularly since the jury answered a particular interrogatory that her injuries were caused by the defendant’s negligence. We disagree.

We give great weight and every reasonable presumption to the trial court’s refusal to set aside a verdict in response to a claim of inadequacy of the verdict. Todd v. Glines, 217 Conn. 1, 5, 583 A.2d 1287 (1991). The test is whether the award falls within the uncertain limits of just damages or whether it is so inadequate that it shocks the sense of justice and compels the conclusion that it was the product of partiality, prejudice, mistake or corruption. Id., 5-6.

We have fully reviewed the record in this case. Suffice it to say that the extent and source of the plaintiff’s injuries were seriously contested. There was ample evidence, which the jury was entitled to credit, that many of the plaintiff’s injuries were the result, not of the accident caused by the defendant in 1985, but of a prior motor vehicle accident in 1980, and that the defendant’s negligence in 1985 did not aggravate those injuries.

Nor do the jury’s answers to the special interrogatories help the plaintiff. The plaintiff claims that “the jury specifically found, in answering interrogatory number [2] in the affirmative, that the plaintiff’s injuries (plural) were proximately caused by the negligence of the defendant.” (Emphasis in original.) It is true that the jury answered in the affirmative to interrogatory number 2: “Did the plaintiff prove that one or more of the proven specifications of negligence was a proximate cause of (that is, a substantial factor in causing) her injuries?” It is also true, however, as the defendant responds, that the jury did not specifically find what claimed injuries were proven to have been caused by the defendant’s negligence. This response of the jury is not inconsistent with a finding that only some of the injuries that the plaintiff claimed were in fact caused by the 1985 accident. In short, we cannot conclude on this record that the verdict was so inadequate that it shocks the sense of justice and compels the conclusion that it was the product of partiality, prejudice, mistake or corruption.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff also alludes in her brief to an alternate claim, namely, that the court improperly instructed the jury in the use of its notes. This claim, however, is made only in the heading of the plaintiffs argument, and the plaintiffs brief is bereft of any further mention of it. Therefore, although we discuss, infra, the nature of the instructions that a trial court should give in connection with note-taking by jurors, we consider the plaintiffs claim of improper instructions to have been abandoned for failure to brief it. Czamecki v. Plastics Liquidating Co., 179 Conn. 261,262 n.l, 425 A.2d 1289 (1979).

       The named defendant was operating a vehicle owned by his mother, Barbara Friedman, whom the plaintiff sued under the family car doctrine. We refer herein to the named defendant as the defendant.

       The defendant had filed a special defense of contributory negligence, alleging that the plaintiff stopped her vehicle suddenly without giving a signal or warning.

       The plaintiff also claimed in her motion to set aside the verdict that the court should not have permitted the jurors to ask questions during the trial. The plaintiff has not pursued that claim in this appeal, but we today decide that issue in Spitzer v. Haimes & Co., 217 Conn. 532, 587 A.2d 105 (1991).

       After informing the jurors that they would be permitted to ask questions of the witnesses, the court stated: “In the first case I did this a couple of months ago. When I spoke with the jurors afterward they said they felt a little frustrated because they were’t able to take notes. And the case went over a weekend. Monday we don’t try cases because we have motions. And they said, we would like to have been able to jot down our questions because we sort of forgot them. In other words, we had a question in mind and then things went on and on and lunch and so forth. How about giving us some paper so we can make some notes.
      “So we are going to do that, have some paper to take notes. Then we run into some jurors [who] try to take a lot of notes, and I sort of try to discourage that and try to sort of suggest to you, although it is up to you, it is your pencil and your paper, but try to suggest to you that you not take a lot of notes. Rather concentrate on the witnesses. You are here to size up these witnesses. It seems to me that if you spend all your time taking notes, detailed notes, you are going to be distracted and not be able to concentrate as much as you should on the witnesses.
      “So some of the jurors have basically confined their note-taking to questions that they feel like asking, and of course they tend to sometimes scratch them out because it gets asked by someone else. But as I say, it is up to you but just keep in mind that that is your primary mission.
      “The other, I guess you could say hesitancy about letting jurors take notes in the past has been a fear that one juror with some very nice notes would attempt to dominate the discussion and get in the jury room. And there will be a question, did the witness say this, and one juror will say, yeah, I have it right here in my notes. This is it. I’m a great notetaker and this is the way it is. And the decision is supposed to be reached by six people, all reasoning and working together. So that has always sort of been the fear behind not letting jurors take notes. I don’t happen to think it holds too much water myself, but that is a little background on the matter of questions and notes.”

       The court stated as follows: “I mentioned recollection, and that brings up the question of notes. We said at the beginning of the case that we prefer that you basically concentrate on the witness, and in a sense keep the notes to remind you of questions that you wanted to ask the witnesses, as you’ve done here. The theory always being, that if a person was too busy making notes, he or she might lose the sense of what the witness was saying. As you know, because we spent some time yesterday, you really have to size up the witnesses. Because you’re going to be deciding who to believe, and who not to believe. The thinking has always been, not that you all were—because I know that you all paid attention, to the witness on the stand—but the theory militating against taking notes was that a person would start scribbling ferociously and forget to concentrate on the witness. Not that you’ve done that.
      “But, the other fear was that some notetaker, a good notetaker, a real top notetaker, in the jury room, if you’re all sitting around saying T think witness X said this, and witness Y said this,’ that the top notetaker would say ‘Wait a minute, ladies and gentlemen, I’ve got it down here in my notes. This is it. I’m a great notetaker, and this is exactly what happened.’ No further discussion on that. That should not happen, of course.
      “It’s the 6 jurors. It’s their joint recollection of what happens. So in that sense, I suppose, you really don’t need your notes, while you’re deliberating. But on the other hand, it’s up to you. If you think they’d be helpful, please take them with you. But remember, it’s your recollection that counts because sometimes notes are not as accurate as we hope they would be.
      “So, as I say, you can come back and ask, if there’s a question about what a witness has said, don’t hesitate to ask.”

       The plaintiff stated in pertinent part as follows: “With regard to their notes . . . my exception is I think it should have been stronger, I have no objection to [their] taking their notes into the deliberation room if Your Honor tells them in no uncertain terms that their notes are not evidence, their verdict has to be based on the evidence and the law and their notes can be useful insofar as it refreshes their recollection of the evidence.”

       See United States v. Oppon, 863 F.2d 141,148-49 (1st Cir. 1988) (practice within trial court’s discretion); United States v. Vaccaro, 816 F.2d 443, 451 (9th Cir.). cert. denied sub nom. Alvis v. United States, 484 U.S. 914, 108 S. Ct. 262, 98 L. Ed. 2d 220 (1987) (“decision of whether to allow the jury to take notes is left entirely to the discretion of the trial court”); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986) (matter is within discretion of trial court); United States v. Porter, 764 F.2d 1,12 (1st Cir.), reh. denied, 776 F.2d 370 (1985) (citing long list of authorities in support of note-taking per court’s discretion); United States v. Bassler, 651 F.2d 600, 602 n.3 (8th Cir.), cert. denied sub nom. Sprecher v. United States, 454 U.S. 944,102 S. Ct. 485, 70 L. Ed. 2d 254, reh. denied, 454 U.S. 1129, 102 S. Ct. 983, 71 L. Ed. 2d 118 (1981) (discretion of trial court); United States v. Rhodes, 631 F.2d 43, 45 (5th Cir. 1980) (discretion of trial court; long list of authorities cited); United States v. Maclean, 578 F.2d 64, 65-67 (3d Cir. 1978) (matter left to discretion of trial judge; weighing of benefits to practice); United States v. Bertolotti, 529 F.2d 149, 159 (2d Cir. 1975) (“[i]t has long been established in this Circuit that it is within the trial court’s discretion to allow the jury to take notes and use them in the course of their deliberations”).

       See Reece v. Simpson, 437 So. 2d 68,69 (Ala. 1983) (Pattern Jury Instruction 1.15, APJI-Civil, gives jurors legal right to take notes during trial); State v. Marquez, 135 Ariz. 316, 321, 660 P.2d 1243 (1983) (Arizona Rules of Criminal Procedure 18.6 [c]; preliminary instruction provides jurors with permission to take notes); People v. Guzman, 45 Cal. 3d 915, 948, 755 P.2d 917,248 Cal. Rptr. 467 (1988), cert. denied, 488 U.S. 1050,109 S. Ct. 882, 102 L. Ed. 2d 1005, reh. denied, 493 U.S. 960,110 S. Ct. 380,107 L. Ed. 2d 365 (1989) (implicit statutory authorization for jurors to take notes); Billings v. People, 171 Colo. 236, 244-45, 466 P.2d 474 (1970) (matter of juror note-taking within sound discretion of court); Kelley v. State, 486 So. 2d 578, 583 (Fla.), cert. denied, 479 U.S. 871, 107 S. Ct. 244, 93 L. Ed. 2d 169 (1986) (whether to allow jurors to take notes and use them during deliberation is question within sound discretion of trial court); Post-Tensioned Construction, Inc. v. VSL Corporation, 143 Ga. App. 148,149, 237 S.E.2d 618 (1977) (“[t]he regulation of a juror’s note-taking is addressed to the sound discretion of the trial court”); Estate of Whittington v. Emdeko Housewares, 96 Ill. App. 3d 1007, 1014, 442 N.E.2d 26 (1981) (no cases forbidding note-taking by a juror of his own volition; counsel cannot request or suggest a jury take notes; “statute [Ill. Rev. Stat. (1979) c. 78, ¶ 36] appears to grant jurors an absolute right to take notes”); Underwood v. State, 535 N.E.2d 507, 518 (Ind.), cert. denied, 493 U.S. 900, 110 S. Ct. 257,107 L. Ed. 2d 206, reh. denied, 493 U.S. 985, 110 S. Ct. 524,107 L. Ed. 2d 524 (1989) (juror note-taking is matter within discretion of trial court and clear error must be shown to establish an abuse of that discretion); State v. Post, 286 N.W.2d 195, 202-203 (Iowa 1979) (jurors may disclose to each other contents of their notes); State v. Jones, 222 Kan. 56, 61, 563 P.2d 1021 (1977) (“the fact a juror takes notes during trial does not create error per se; a defendant must show that there has been prejudice of his substantial rights”); Travis v. Commonwealth, 457 S.W.2d 481, 482 (Ky. 1970) (juror note-taking should be encouraged); Dillon v. State, 27 Md. App. 579, 581-84, 342 A.2d 677 (1975), aff'd, 277 Md. 571, 357 A.2d 360 (1976) (within discretion of trial court to allow juror note-taking); Commonwealth v. Wilborne, 382 Mass. 241, 253, 415 N.E.2d 192 (1981) (within discretion of trial court to permit note-taking); People v. Young, 146 Mich. App. 337, 340, 379 N.W.2d 491 (1985) (practice is within sound discretion of trial court; “the advantage of note-taking outweighs the dangers of that practice”); Wash v. State, 521 So. 2d 890, 897 (Miss. 1988) (practice left to discretion of trial court where matters complicated or parties agree; judge should give directions and instructions on use of notes); State v. Jones, 661 S.W.2d 814, 816 (Mo. App. 1983) (“[a] trial court’s approval or denial of a juror’s note-taking in any particular case is usually sustained as being a matter within its discretion”); State v. Kipf 234 Neb. 227, 254, 450 N.W.2d 397 (1990) (note-taking permitted “if, and only if, the parties agree, outside the jury’s presence, [1] that jurors may, but need not, take notes, and [2] that such notes as are taken may be used during the jury’s deliberations but not preserved for review on appeal . . .”); Wigler v. Newark, 125 N.J. Super. 179,182-83, 309 A.2d 897 (1973), cert. denied, 64 N.J. 490, 317 A.2d 703 (1974) (nothing improper in a juror taking notes; practice within trial court’s discretion); People v. Diluca, 85 App. Div. 2d 439, 445, 448 N.Y.S.2d 730 (1982) (practice within discretion of trial court, but “it is essential that preliminary cautionary instructions be given . . .”); Cleary Petroleum, Inc. v. Copenhaver, 476 P.2d 327, 329 (Okla. 1970) (juror note-taking not error); State Highway Department v. J. W. Conder Co., 262 S.C. 318, 325, 204 S.E.2d 381 (1974) (matter within discretion of trial court); State v. Chance, 778 S.W.2d 457,462 (Tenn. Crim. App. 1989) (juror note-taking rests within discretion of trial court); Davis v. Huey, 608 S.W.2d 944, 955 (Tex. Civ. App. 1980), rev’d on other grounds, 620 S.W.2d 561 (Tex. 1981) (no prohibition in rules of civil procedure concerning jurors taking notes); but see Commonwealth v. Maute, 336 Pa. Super. 394, 404, 485 A.2d 1138 (1984) (“[ujnder Pennsylvania law, it is improper for a juror to take notes during a trial and to use those notes in the jury room”).

       Although we discuss the issue of the confidentiality of the jurors’ notes in Part II of this opinion, we note here that we also agree with the suggestion of the court in United States v. Maclean, 578 F.2d 64, 66 (3d Cir. 1978), that the court should make clear to the jurors that they must not disclose the contents of their notes except to their fellow jurors.

       The plaintiff properly preserved this claim for appeal. The defendants requested that the court collect and preserve the jurors’ notes, and the plaintiff specifically joined in that request and in the defendants’ exception to the refusal of the trial court to do so.

       The plaintiff inadvertently referred in her brief to interrogatory number 4, rather than number 2. It is clear, however, that this is a typographical error, since the response to interrogatory number 2 is the only response that is consistent with the context of the plaintiff’s argument. Indeed, the response to interrogatory number 4 undercuts the plaintiff’s argument.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    John J. McCarthy v. Commissioner of Correction
    (14062)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued October 31, 1990
    decision released February 26, 1991

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, then attorney general, for the appellant-appellee (respondent).

      John W. Watson, assistant public defender, for the appellee-appellant (petitioner).
   Callahan, J.

The petitioner, John J. McCarthy, an inmate of the state prison at Somers, brought a petition for a writ of habeas corpus in the judicial district of Tolland. In his petition he alleged that he was illegally confined for two reasons pertinent to this appeal. He first claimed that the respondent’s method of calculating good time credits on his consecutive sentences was incorrect and deprived him of good time to which he was statutorily entitled, and also deprived him of the equal protection of the law guaranteed to him by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. Second, he contended that the respondent improperly refused to credit him with presentence jail time to which he was entitled for the period from September 4, 1980, to September 28, 1982. The habeas court agreed with the petitioner as to his first claim and granted the requested relief. The court, however, disagreed with the petitioner’s second claim.

The petitioner is currently held in the state prison pursuant to two orders of the Superior Court. The first, a mittimus issued by the Superior Court for the judicial district of Fairfield at Bridgeport on June 26,1981, ordered that the petitioner be imprisoned for an indeterminate term of not less than ten years nor more than twenty years for several burglaries and larcenies. He is presently serving that term. The second, a mittimus issued by the Superior Court for the judicial district of Danbury on January 11,1983, ordered that the petitioner be imprisoned for a definite term of six years as a result of six consecutive one year sentences for multiple counts of burglary and larceny. The petitioner’s six year sentence was ordered to be served consecutively to his ten to twenty year sentence. All the crimes for which the petitioner was sentenced were committed in 1980.

I

In his first claim, the petitioner argues that he is entitled under General Statutes § 18-7 to have his ten to twenty year sentence aggregated with his six year sentence and to have his sentences construed as one continuous term of imprisonment for the purpose of calculating his good time credits. He argues, further, that he is entitled under General Statutes § 18-7a (a)* ** to have his good time credited at the rate of fifteen days per month for the sixth and each subsequent year of his aggregated sentence. If correct, the petitioner will serve his entire six year sentence receiving good time credit at the rate of fifteen days per month. The respondent, on the other hand, argues that § 18-7 has no application to the petitioner, that the petitioner received two separate and distinct sentences that must be served as such, and that the petitioner must be released or paroled from his ten to twenty year sentence before he can commence serving his six year sentence. If the respondent is correct, the petitioner, under § 18-7a (a), will receive good time credit of only ten days per month for the first five years of his six year sentence rather than the fifteen days per month to which he claims to be entitled. The habeas court determined that the provision of § 18-7 mandating the aggregation of consecutive sentences for the purpose of calculating a prisoner’s good time credits was applicable to the petitioner and ordered the respondent “to construe the petitioner’s 10 to 20 year sentence and his six year sentence as one continuous term for the purpose of calculating [his] good time.” We agree.

The relevant portion of § 18-7 provides: “When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.” The amount of commutation or diminution of his sentence, i.e., good time credit, that a prisoner can earn by good conduct and obedience to the rules of the institution under § 18-7 is “[s]ixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year, and pro rata for a part of a year

The legislature repealed the existing § 18-7 by the enactment of Public Acts 1976, No. 76-358, § 1. Public Act No. 76-358, § 1, then reenacted § 18-7 in its previous form except that the words “sentenced to a term of imprisonment prior to October 1,1976,” were inserted in the third sentence so that the third sentence of the present § 18-7 reads: “Any prisoner sentenced to a term of imprisonment prior to October 1, 1976, may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence, as follows: Sixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year and pro rata for part of a year . . . .” (Emphasis added.)

In the same session the legislature enacted Public Acts 1976, No. 76-358, § 2. That section of Public Act No. 76-358 increased the amount of statutory good time credits to which a prisoner sentenced after October 1, 1976, is entitled, from the previous annual sixty and ninety day limits of § 18-7 to “ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for part of a month, for the sixth and each subsequent year of a sentence of more than five years.” There is no provision in § 2 of Pub-lie Act No. 76-358 that multiple prison sentences be aggregated and construed as one continuous term for the purpose of calculating the amount of good time that a prisoner may earn.

In order to resolve the petitioner’s first claim, it is necessary, therefore, to determine whether, by its repeal, revision and reenactment of § 18-7 and its enactment of § 18-7a (a), the legislature intended to exclude prisoners sentenced after October 1, 1976, from the statutory mandate of § 18-7 that consecutive sentences of imprisonment be aggregated and treated as one continuous term of imprisonment for the purpose of calculating good time credits.

As revised and reenacted by the 1976 legislature, § 18-7 manifestly limited its provision concerning the amount of good time an inmate of the state prison could earn to those inmates sentenced before October 1, 1976. Frazier v. Manson, 176 Conn. 638, 642-43, 410 A.2d 475 (1979).* ****** All the other provisions of the previous § 18-7, however, were reenacted and left intact. Those provisions that were left unchanged relate generally to the duties and prerogatives of the warden of the prison and the commissioner of correction in relation to the inmates. Included among the reenacted provisions is that which states: “When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.” General Statutes § 18-7. Whether the legislature by its reenactment of that provision of § 18-7 and its silence concerning the aggregation of sentences in § 18-7a (a) intended that the aggregation provision of § 18-7 apply to prisoners sentenced after October 1, 1976, is unclear.

Because the statutes in question are ambiguous, it is necessary that we address the statutes’ legislative history and other criteria for guidance in determining the legislature’s intent. State v. Grullon, 212 Conn. 195, 200, 562 A.2d 481 (1989); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988). “The basic rule of statutory construction requires us to ascertain the intention of the law-making body . . . and to construe the statute in a manner that effectuates that intent.” (Citations omitted.) Green v. Warden, 178 Conn. 634, 637-38, 425 A.2d 128 (1979); State v. Grullon, supra, 199; State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975).

The legislative history of Public Act No. 76-358 reveals that the manifest intention of the legislature in enacting it was to consolidate good time statutes and make good time equal and uniform throughout the correctional system by eliminating multiple systems of crediting good time, by increasing standard good time, by eliminating meritorious time service awards, and by repealing separate good time statutes for community correctional centers and the Cheshire correctional institution. Conn. Joint Standing Committee Hearings, Humane Institutions, 1976 Sess., January 27, pp. 53-55, 65-68; see Frazier v. Manson, supra, 651. There is nothing in the legislative history of Public Act No. 76-358 to indicate that the legislature intended to abrogate the aggregation of consecutive sentences for the purpose of calculating a prisoner’s good time.

The intention of the legislature as to whether multiple sentences of imprisonment should be construed as one continuous term is, moreover, manifested in other existing statutes. For example, General Statutes § 18-98b requires that “[w]hen any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award . . . General Statutes § 53a-37 requires the sentencing court when it imposes multiple sentences of imprisonment on a person at the same time, or when it imposes an additional sentence on a prisoner with an undischarged term of imprisonment, to state whether the sentences are concurrent or consecutive and to state the total “effective” sentence imposed. See Delevieleuse v. Manson, 184 Conn. 434, 440, 439 A.2d 1055 (1981) (effective sentence is standard by which good time is computed). General Statutes § 53a-38 (b) (2) mandates that if multiple definite sentences run consecutively, the terms of the sentences must be added to arrive at an “aggregate term” and the sentences are satisfied by the discharge of the “aggregate term.”

Furthermore, it is a well established rule of statutory construction that repeal of the provisions of a statute by implication is not favored and will not be presumed where the old and the new statutes, in this case §§ 18-7 and 18-7a (a), can peacefully coexist. Metropolitan District v. Barkhamsted, 199 Conn. 294, 307, 507 A.2d 92 (1986); State v. Jenkins, 198 Conn. 671, 679, 504 A.2d 1053 (1986); State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 404, 294 A.2d 546 (1972). If, by any fair interpretation, we can find a reasonable field of operation for both §§ 18-7 and 18-7a (a), without destroying or perverting their meaning and intent, it is our duty to reconcile them and give them concurrent effect. Windham First Taxing Districts. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988); In re Juvenile Appeal (85-BC), 195 Conn. 344, 365, 488 A.2d 790 (1985); State v. Carbone, supra; Waterbury Teachers Assn. v. Furlong, supra. We also note that the provision of § 18-7 requiring the aggregation of multiple sentences has been a part of the general statutes governing the award of good time since 1902. See General Statutes (1902 Rev.) § 2900. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954). If the legislature had intended by enacting § 18-7a (a) to do away with the longstanding policy of aggregation of multiple sentences, it could easily have said so. McKinley v. Musshorn, 185 Conn. 616, 623,441 A.2d 600 (1981). “Furthermore, there is a presumption that an amendatory act does not change the existing law further than is expressly declared or necessarily implied.” Norwalk v. Daniele, 143 Conn. 85, 89, 119 A.2d 732 (1955); 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 22.30.

The legislative history of Public Act No.76-358 and tenets of statutory construction, coupled with the extant statutes that indicate a legislative preference for the aggregation of sentences, lead us to conclude that the legislature did not intend by its enactment of § 18-7a (a) to exclude those sentenced after October 1, 1976, from the operation of that portion of § 18-7 requiring that multiple terms of imprisonment be construed as one continuous term for the purpose of calculating good time credits. In fact, this court in a 1981 appeal concerning a 1979 sentence, a sentence imposed well after the effective date of § 18-7a (a), appears to have recognized the continued vitality of the sentence aggregation provision of § 18-7. In Delevieleuse v. Manson, supra, 440, we quoted the aggregation provision of § 18-7 and commented, albeit in dicta, that “the legislature has chosen to make the ‘effective sentence’ the standard by which ‘good time’ is computed” and “that the legislature [by the sentence aggregation provision of § 18-7] explicitly chose to make the ‘effective sentence’the benchmark for‘good time’ . . . .’’See also Frazier v. Manson, supra, 651.

Further, it appears from a stipulation of the parties filed in the trial court in the cases of Elliott v. Commissioner of Correction, and Boyle v. Commissioner of Correction, 217 Conn. 584, 587 A.2d 124 (1991), the appeals of which were heard the same day as this appeal, that the commissioner of correction is in fact aggregating some consecutive sentences imposed after October 1, 1976, the effective date of § 18-7a (a), for the purpose of awarding statutory good time credits. Whether sentences imposed after that date are aggregated appears to depend to a great extent on the date the sentences were imposed, whether the sentences were definite or indeterminate, and principally whether the sentences were imposed on the same day by the same court or on different days by different courts. That interpretation of the sentencing statutes by the commissioner raises a serious question as to whether such diverse treatment of prisoners, all similarly situated in that they were sentenced after October 1,1976, violates the equal protection clause of the United States constitution. See Alexander v. Robinson, 185 Conn. 540, 543, 441 A.2d 166 (1981); see also Bolling v. Manson, 345 F. Sup. 48, 52 (D. Conn. 1972); Frazier v. Manson, supra, 650.

Clearly, a prisoner whose consecutive sentences are aggregated to allow his second sentence to earn good time at the increased rate of fifteen days a month immediately at the conclusion of his first sentence receives greater good time credit than a prisoner, who, because his sentences are not aggregated, must commence serving his second sentence at the conclusion of his first sentence. See Alexander v. Robinson, supra, 545. We need not, however, address the petitioner’s equal protection claim if the statutes in question can reasonably be construed to avoid a constitutional problem. State v. Champagne, supra, 437; State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979). In choosing between two statutory constructions “one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 706, 553 A.2d 596 (1989); State v. Torres, 206 Conn. 346, 362, 538 A.2d 185 (1988); Alexander v. Robinson, supra, 548.

That search has led us to the conclusion that the provision of § 18-7 requiring that prisoners held under more than one conviction have their several terms of imprisonment construed as one continuous term for the purpose of calculating their good time credits is still viable. The petitioner is, therefore, as the habeas court concluded, entitled to the number of days of good time provided for in § 18-7a (a) and entitled to have his consecutive sentences construed as one continuous term of imprisonment as provided for in § 18-7.

II

The petitioner next claims that he is entitled to receive presentence credit under General Statutes § 18-98 for jail time spent at the Bridgeport correctional center from September 4,1980, to September 28, 1982. During that period and also prior to September 4, 1980, the petitioner was confined at the correctional center for burglaries and larcenies committed in Wilton for which he received a sentence of ten to twenty years from the Superior Court in the judicial district of Fairfield at Bridgeport.

While the petitioner was confined on the Wilton charges, a warrant issued by a judge of the Superior Court in the judicial district of Danbury charging him with burglaries and larcenies in Ridgefield was lodged as a detainer against the petitioner with the department of correction at the Bridgeport correctional center.

The warrant in the upper right hand comer of its face sheet bore the notation “Bond 25,000 W.P._.” The warrant was not executed, however, but simply-remained lodged as a detainer against the defendant at the correctional center until September 28, 1982, when the petitioner was transported to the Danburyjudicial district and arraigned on the offenses charged in the warrant. At his arraignment, the court committed the petitioner to the custody of the commissioner of correction on a continuance mittimus in lieu of his posting a bond. It is undisputed that when later sentenced by the Superior Court in Danbury, the petitioner was given credit on the six year sentence that he received for the time spent in the correctional center from the date of his arraignment on September 28, 1982, until the date of his sentence on January 11,1983. He argues, however, that he is also entitled to credit against his six year sentence from the time that the warrant issued by the Danbury Superior Court was lodged as a detainer at the correctional center on September 4,1980, until September 28,1982, the date of his arraignment. We disagree.

An unexecuted warrant filed as a detainer is simply notification to the institution in which a prisoner is incarcerated advising the institution that the prisoner is wanted on other charges and requesting the institution either to hold the prisoner for the notifying agency or to alert the agency when release of the prisoner is imminent. Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985); Moody v. Daggett, 429 U.S. 78, 80 n.2, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976); Watkins v. United States, 570 F.2d 151,152 (6th Cir.), cert. denied, 435 U.S. 976, 98 S. Ct. 1626, 56 L. Ed. 2d 71 (1978); State v. Braswell, 194 Conn. 297,300 n.l, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112,105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); see Breen v. Warden, 173 Conn. 312, 314, 377 A.2d 335 (1977).

In this instance, the release of the petitioner from confinement on the Wilton charges for which he had originally been incarcerated was never imminent. The petitioner, rather, remained confined on those charges during the entire time that the Ridgefield detainer was lodged at the correctional center. The petitioner, therefore, was not confined pursuant to the Ridgefield warrant for his inability to obtain bail until the warrant was executed and the petitioner arraigned in the Dan-bury judicial district when he was committed because he was unable to post a bond on the Ridgefield charges. That scenario does not entitle the petitioner to presentence credit under § 18-98 from the moment the detainer was lodged. In order for the petitioner to be entitled to presentence credit toward his Danbury sentence under § 18-98, he must have been arrested and confined for his inability to obtain bail on the charges for which he was eventually sentenced in Danbury. Breen v. Warden, supra, 315-16; Houston v. Warden, 169 Conn. 247, 252-53, 363 A.2d 121 (1975). The petitioner was not so confined until September 28, 1982, the date of his arraignment in the Danbury judicial district. Breen v. Warden, supra, 316. We conclude, therefore, as did the habeas court, that the petitioner was entitled to presentence credit for jail time only from September 28,1982, the date of his arraignment, until January 11, 1983, the date of his sentence.

The judgment is affirmed.

In this opinion the other justices concurred.

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

       “Jail time" is presentence time spent in confinement as the result of an arrest for a crime. Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975).

       “[General Statutes] Sec. 18-7. powers and duties op warden, punishment and reward OF inmates. The warden shall manage the Connecticut Correctional Institution, Somers, subject to the direction of the commissioner of correction, and he shall keep all the prisoners employed in such labor as the commissioner orders, during the term of their imprisonment. He shall also keep a record of any punishment inflicted upon a prisoner, showing its cause, mode and degree, and a like record of the conduct of each prisoner. Any prisoner sentenced to a term of imprisonment prior to October 1, 1976, may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence, as follows: Sixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year, and pro rata for a part of a year, and, in addition thereto, five days for each month as a meritorious time service award which may be granted in the discretion of the warden and the commissioner for exemplary conduct and meritorious achievement; provided any serious act of misconduct or insubordination or persistent refusal to conform to institution regulations occurring at any time during his confinement in said prison shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all or any portion of the time earned. Said commutation of sentence shall apply to any prisoner transferred from the Connecticut Correctional Institution, Somers, to the John R. Manson Youth Institution, Cheshire. When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section. The commissioner may employ prisoners outside the institution walls, within the state, under the charge of some officer of the institution. He shall provide for the prisoners suitable food and clothing and suitable implements and materials for their work, and shall provide for the relief of any sick or infirm prisoner, and the cost thereof shall be paid by the state from funds appropriated and available for such purpose. The warden shall superintend the labor and conduct of the prisoners, and, when requested, shall communicate to the commissioner any information in his knowledge respecting the prison.”

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

       Public Acts 1976, No. 76-358, § 1, has since been codified as General Statutes § 18-7.

       Public Acts 1976, No. 76-358, § 2, has since been codified as General Statutes § 18-7a (a).

       Although General Statutes § 18-7a (a) appears to double the good time to be awarded to prisoners, that, as a practical matter, is not actually the case. It is obvious from the testimony of the then commissioner of correction, John R. Manson, before the Humane Institutions Committee of the legislature concerning Public Acts 1976, No. 76-358, that, in addition to the good time of sixty and ninety days authorized by General Statutes § 18-7, the commissioner and the warden routinely awarded prisoners sentenced to the state’s prison an additional five days for each month of their sentences as a “meritorious time service award,” also authorized by § 18-7. Conn. Joint Standing Committee Hearings, Humane Institutions, 1976 Sess., January 27, pp. 53-55, 65-68. Prisoners sentenced to the state prison prior to October 1, 1976, therefore, actually had 120 days deducted from their sentences for compliance with the rules of the institution for each year of the first five years of their sentences, the same amount of good time to which they are presently entitled, and 150 days for the sixth and ensuing years, which is slightly more than the amount of good time that prisoners are currently entitled to earn in the sixth and ensuing years of their sentences. See General Statutes § 18-7a (b) and (c) (reducing the fifteen days per month good time for the sixth and subsequent years of a prisoner’s sentence of § 18-7a [a] to twelve days per month). The “meritorious time service award” is not available to prisoners sentenced after October 1, 1976.

        Frazier v. Manson, 176 Conn. 638, 642-43, 410 A.2d 475 (1979), was concerned only with whether a prisoner sentenced prior to October 1,1976, was entitled to the amount of good time provided by General Statutes § 18-7a (a) or that provided by General Statutes § 18-7 for the portion of his sentence served after October 1, 1976. The opinion did not deal with the aggregation of sentences.

       Meritorious time service awards are to be distinguished from the outstandingly meritorious performance award under General Statutes § 18-98b, which still exists.

       If multiple sentences are not aggregated for the purpose of crediting good time, it would, in fact, defeat the legislative intent to make good time equal and uniform because prisoners with a single sentence would earn more good time than prisoners with multiple sentences of the same total length.

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

       “[General Statutes] Sec. 53a-37. multiple sentences: concurrent or consecutive, minimum term. When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”

       General Statutes § 53a-38 (b) (2) provides: “(b) A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows ... (2) if the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term.”

       In Frazier v. Manson, 176 Conn. 638, 651, 410 A.2d 475 (1979), we stated: “Thus, [General Statutes] §§ 18-7 and 18-7a remain to provide the means for determining eligibility for good time credits regardless of the type of sentence of imprisonment or institution involved.” (Emphasis added.)

       We may take judicial notice of files of the Superior Court in the same or other cases. State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964).

       “[General Statutes] See. 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.”

       The fact that the warrant constituting the detainer contained a notation that the bond was to be $25,000 is of no moment. That notation would only suggest the amount of bail to be set if and when the petitioner was arrested on the warrant.


text:
    Robin Elliott v. Commissioner of Correction Edward Boyle v. Commissioner of Correction
    (14084)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued October 31, 1990
    decision released February 26, 1991

      Madeline A. Bontatibus, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, then attorney general, for the appellant (respondent).

      John W. Watson, assistant public defender, for the appellees (petitioners).
   Callahan, J.

The petitioner, Robin Elliott, was sentenced to a term of imprisonment of eight to sixteen years in 1974, and was later sentenced to a term of three to six years for escape in 1977. The two sentences were ordered to be served consecutively. In his petition for a writ of habeas corpus, Elliott claims that under General Statutes § 18-7 the three to six year sentence that was imposed in 1977 should be aggregated with his eight to sixteen year sentence and construed as one continuous term of imprisonment of eleven to twenty-two years. If so construed, he argues, he is entitled to receive good time credit at the rate of fifteen days per month under General Statutes § 18-7a (a) on his three to six year sentence immediately upon his discharge from his initial eight to sixteen year term. The respondent commissioner of correction, on the other hand, contends that § 18-7 has no application to Elliott’s three to six year sentence because that sentence was imposed after October 1, 1976. The respondent consequently has refused to aggregate Elliott’s sentences. The respondent, rather, has required that Elliott serve his consecutive sentences as two separate and distinct terms and that he be released or paroled from his eight to sixteen year sentence before commencing to serve his three to six year sentence. As a result, Elliott will receive good time credit pursuant to § 18-7a (a) at the rate of only ten days per month for the first five years of his three to six year sentence instead of the fifteen days per month he would receive if his sentences were aggregated.

The petitioner, Edward Boyle, was sentenced on January 4,1982, in the judicial district of Hartford, to a term of imprisonment of six to twelve years and on July 20,1983, was sentenced in the judicial district of Tolland to a term of fifteen to thirty years.* * Boyle’s fifteen to thirty year sentence was ordered by the sentencing judge in Tolland to be served consecutively to his initial six to twelve year term. In his petition for a writ of habeas corpus, Boyle claims that under § 18-7 his sentences should be construed as one continuous term of imprisonment of twenty-one to forty-two years. The respondent maintains, however, that § 18-7 has no application to Boyle because he was sentenced after October 1, 1976, and therefore is not entitled to have his sentences aggregated. The respondent instead has treated Boyle’s consecutive sentences as two separate and distinct terms. That treatment of his sentences requires that he be released or paroled from his six to twelve year sentence before he, in effect, starts over and begins serving his fifteen to thirty year sentence. If the respondent is correct, Boyle will serve the first five years of his fifteen to thirty year sentence receiving good time credit at the rate of only ten days per month. If Boyle is correct and his sentences are construed as one continuous term, he will be entitled to receive good time credit for the sixth and subsequent years of his aggregated sentences at the rate of fifteen days per month under § 18-7a (a).

Both of these cases are controlled by our decision published this same date in McCarthy v. Warden, 217 Conn. 568, 587 A.2d 116 (1991). In McCarthy, we concluded that § 18-7 mandates the aggregation of consecutive sentences imposed subsequent to October 1, 1976, as well as those imposed before that date. Id. That conclusion requires that the petitioners’ consecutive sentences be aggregated under § 18-7 and that their sentences be construed, as to each petitioner, as one continuous term of imprisonment for the purpose of calculating good time credits.

In view of our disposition of the petitioners’ principal claim, it is unnecessary to consider their constitutional arguments. Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 270, 524 A.2d 621 (1987); State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986); Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981).

The judgment is affirmed in both cases.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 18-7. powers and duties of warden, punishment and reward of inmates. The warden shall manage the Connecticut Correctional Institution, Somers, subject to the direction of the commissioner of correction, and he shall keep all the prisoners employed in such labor as the commissioner orders, during the term of their imprisonment. He shall also keep a record of any punishment inflicted upon a prisoner, showing its cause, mode and degree, and a like record of the conduct of each prisoner. Any prisoner sentenced to a term of imprisonment prior to October 1, 1976, may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence, as follows: Sixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year, and pro rata for a part of a year, and, in addition thereto, five days for each month as a meritorious time service award which may be granted in the discretion of the warden and the commissioner for exemplary conduct and meritorious achievement; provided any serious act of misconduct or insubordination or persistent refusal to conform to institution regulations occurring at any time during his confinement in said prison shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all or any portion of the time earned. Said commutation of sentence shall apply to any prisoner transferred from the Connecticut Correctional Insititution, Somers, to the John R. Manson Youth Institution, Cheshire. When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section. The commissioner may employ prisoners outside the institution walls, within the state, under the charge of some officer of the institution. He shall provide for the prisoners suitable food and clothing and suitable implements and materials for their work, and shall provide for the relief of any sick or infirm prisoner, and the cost thereof shall be paid by the state from funds appropriated and available for such purpose. The warden shall superintend the labor and conduct of the prisoners, and, when requested, shall communicate to the commissioner any information in his knowledge respecting the prison.”

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

       The crimes for which Boyle was sentenced in both instances were committed prior to July 1, 1981. See General Statutes § 18-7a (b).

       The mittimus that issued from the Superior Court in the judicial district of Tolland reflected a total effective sentence of twenty-one to forty-two years.