author: Hull, J.

text:
    State of Connecticut v. Eric N. Person
    (13868)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 3
    decision released July 17, 1990

      Hubert J. Santos, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom were Mary Elizabeth Bar an, assistant state’s attorney, and, on the brief, Walter D. Flanagan, state’s attorney, and Ted Diament, law student intern, for the appellee (state).
   Hull, J.

The defendant, Eric N. Person, was charged with sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (D) and two counts of risk of injury to a child in violation of General Statutes § 53-21. Following a jury trial, he was convicted of sexual assault in the second degree and one count of risk of injury to a child and acquitted of the other two charges. The trial court thereupon sentenced the defendant to concurrent ten year terms of imprisonment on the two counts. The Appellate Court affirmed the judgment of conviction and determined, inter alia, that: (1) the defendant was not unfairly prejudiced when the trial court permitted a defense witness to invoke his fifth amendment privilege against self-incrimination in the presence of the jury; and (2) it was harmless error for the trial court to permit recross-examination of the witness regarding his prior fifth amendment invocation for the purposes of impeaching the witness’ credibility. State v. Person, 20 Conn. App. 115, 123, 564 A.2d 626 (1989). This court granted the defendant’s petition for certification to appeal from the decision of the Appellate Court, limited to the following issues: “(1) May the state, in a criminal prosecution, require a defense witness to invoke the privilege against self-incrimination in open court, and may it use such invocation and subsequent waiver as a basis for impeaching the witness and for adverse comment in its summation?” and “(2) If the trial court’s ruling to permit such conduct was erroneous, was the Appellate Court correct in concluding that the error was harmless?” State v. Person, 213 Conn. 811, 568 A.2d 796 (1990). We conclude that the trial court should not have permitted the conduct but that no prejudice resulted. Accordingly, we affirm the decision of the Appellate Court.

Although the facts are set forth in the decision of the Appellate Court; State v. Person, supra, 20 Conn. App. 115; we discuss those facts pertinent to the issues. On March 25,1987, the defendant was arrested and charged with sexual assault in the second degree and risk of injury to a child in connection with sexual acts allegedly perpetrated against the younger of his two daughters. In addition, he was charged with sexual assault in the fourth degree and risk of injury to a child in connection with alleged sexual conduct involving his older daughter. At trial, the younger victim (hereinafter the victim) testified that following her parents’ divorce she would regularly visit the defendant on the weekends at his apartment in Danbury. She stated that during these weekend visits, the defendant would take her into his bedroom and engage in various sexual acts with her. On one occasion he forced the victim to engage in sexual activity in his car. The victim described these acts in graphic detail and used anatomically correct dolls to demonstrate the sexual activity.

The victim’s physician, a pediatrician, provided constancy of accusation testimony. Further, the physician testified that in her opinion the physical condition of the victim’s genital area was consistent with the victim’s allegations of sexual assault. Constancy of accusation testimony was also provided by the victim’s mother and two police officers who had investigated the matter.

Various defense witnesses testified that while present at the defendant’s apartment in Danbury, they had observed no unusual behavior between the defendant and the victim. Other witnesses stated that the defendant appeared to be. a good father who had a positive relationship with the victim. The defendant testified in his own defense and denied the victim’s accusations.

The defendant challenges the Appellate Court’s conclusions regarding three incidents of alleged prosecutorial misconduct. We consider first the challenged prosecutorial conduct that occurred during the presentation of the defendant’s case and second the challenged conduct that occurred during the state’s closing argument.

I

The defendant asserts that he was denied a fair trial when a defense witness was required to invoke his privilege against self-incrimination in the presence of the jury. Immediately following the defendant’s testimony, Dean Mercier was called to testify on behalf of the defense. Mercier stated that he was a good friend of the defendant and that he had frequently visited the defendant’s apartment during the time the sexual assaults allegedly had occurred. Mercier further testified that he had never observed any unusual behavior between the defendant and the victim and that in his opinion, the defendant and the victim had a good relationship. He did state, however, that he had only had occasion to go into the defendant’s bedroom while the defendant and the victim were napping.

On cross-examination, the state inquired as to Mercier’s ability to perceive events while present at the defendant’s apartment. In response Mercier stated that his perception was “very sharp.” The state then posed the following question: “Well, isn’t it true, sir, that with regard to your powers of perception while you were at the defendant’s apartment during the dates in question, that you were frequently smoking marihuana—?” The defendant objected to this question, and the court excused the jury.

Outside the presence of the jury, the state argued that the inquiry was relevant to the witness’ ability to observe and perceive events. The defendant argued that the attempted introduction of the witness’ marihuana use was inflammatory and prejudicial to the defendant and thereupon moved for a mistrial. The court overruled the objection and denied the motion for a mistrial. The court stated that although the question would have been improper if asked of the defendant, it was permissible to inquire about marihuana use of a witness, because the question “has a bearing upon the ability of a person to remember and relate.”

Mercier expressed concern that his answer to the pending question might incriminate him and asked for an opportunity to consult with his attorney. He left the witness stand. When, shortly thereafter, he resumed the witness stand, he stated that he had been unable to contact his attorney, but that he would answer the question anyway. The court, however, advised Mercier to refrain from further testimony until after he had obtained proper legal advice. The witness was then excused.

Mercier was later recalled for cross-examination. Outside the presence of the jury, he informed the court that he had been advised not to answer any questions relating to marihuana use. The defendant requested that Mercier’s invocation of his fifth amendment privilege occur without the jury present, reasoning that its inflammatory and prejudicial nature outweighed its probative value. The court denied the defendant’s request.

Following the jury’s return, the state proceeded to engage in a litany of questions regarding Mercier’s use of marihuana and alcohol. The defendant adamantly objected throughout the cross-examination, but the court overruled the majority of the objections. Mercier asserted his fifth amendment privilege against self-incrimination in response to ten questions.

The defendant also contends that he was denied his right to a fair trial when the state sought to impeach Mercier during recross-examination based upon his prior invocation of the fifth amendment privilege. Subsequent to Mercier’s initial testimony, the defendant recalled Mercier who stated that he was waiving his fifth amendment privilege against self-incrimination. Mercier testified that he had never smoked marihuana at the defendant’s apartment while the victim was there.

During recross-examination, the state inquired whether Mercier’s decision to waive his fifth amendment privilege was a result of newfound knowledge that he could not be prosecuted for marihuana use revealed at the trial. Mercier stated that such knowledge had no bearing cm his decision and that his prior invocation had primarily resulted from his confusion during cross-examination. The state asked numerous questions designed to imply that there was an inherent inconsistency between Mercier’s prior invocation of his fifth amendment privilege and his present denial of marihuana use at the defendant’s apartment. The defendant objected several times during the recross-examination, but again the court permitted the state’s line of questioning.

At the outset, we note that although the defendant has framed these claims in terms of a denial of his due process right to a fair trial, the claims do not present constitutional issues. “Clearly, the defendant ‘ “has put a constitutional tag on . . . nonconstitutional evidentiary ruling[s].” State v. Douglas, 203 Conn. 445, 455, 525 A.2d 101 (1987) . . . .’ State v. Vilalastra, [207 Conn. 35, 46, 540 A.2d 42 (1988)]; State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).” State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990). First, -with regard to a claim of error in requiring a defense witness to invoke his fifth amendment privilege against self-incrimination in the presence of the jury, the United States Supreme Court has held that “[n]o constitutional issues of any kind are presented” if such action is challenged, rather, it “is a claim of evidentiary trial error.” Namet v. United States, 373 U.S. 179, 185, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963). Second, an attempt to impeach a witness during cross-examination through use of that witness’ prior invocation of his fifth amendment privilege does not rise to a constitutional level even if harm results, because the harm involves another’s exercise of a constitutional privilege rather than a constitutional privilege of the defendant. United States v. Rubin, 559 F.2d 975, 984 (5th Cir. 1977), vacated, 439 U.S. 810, 99 S. Ct. 67, 58 L. Ed. 2d 102 (1978), rev’d in part on other grounds, 591 F.2d 278 (5th Cir.), cert. denied, 444 U.S. 864, 100 S. Ct. 133, 62 L. Ed. 2d 87 (1979); People v. Godsey, 74 Ill. 2d 64, 73, 383 N.E.2d 988 (1978); see United States v. Natale, 526 F.2d 1160, 1171 (2d Cir. 1975), cert. denied, 425 U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 193 (1976). Thus, these two claims of alleged prosecutorial misconduct are claims of evidentiary error reviewable under the standard of harmless error applicable to nonconstitutional errors. State v. Burak, 201 Conn. 517, 527, 518 A.2d 639 (1986); State v. Vitale, supra, 403.

The state concedes that requiring Mercier to invoke his fifth amendment privilege against self-incrimination in the presence of the jury and later attempting to impeach the witness with his prior assertion of the privilege constituted error. “ ‘ “When a trial error in a criminal, case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).’ State v. Vilalastra, [supra, 47].” State v. Sierra, 213 Conn. 422, 436-37, 568 A.2d 448 (1990). We conclude that the defendant has not met his burden.

Requiring a witness to assert the fifth amendment privilege against self-incrimination in the presence of the jury presents two potential grounds for a finding of harmful error. “ ‘First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. ... A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.’ ” State v. Reddick, 197 Conn. 115, 126, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), quoting Namet v. United States, supra, 186-87.

Although the state’s repeated questioning of Mercier with the design to elicit an invocation of the fifth amendment privilege in the presence of the jury was highly inappropriate as it served no legitimate purpose, such action did not constitute prosecutorial misconduct within the meaning of Namet v. United States. The record indicates that the state had prior knowledge that Mercier would invoke the privilege. Knowledge alone, however, does not substantiate the defendant’s claim that the state consciously sought to build its entire case through use of Mercier’s invocation by undermining the credibility of all defense witnesses. The state had made its objective clear when it requested that Mercier answer its question regarding marihuana use. It sought to raise doubt as to Mercier’s ability to observe and perceive events, an entirely permissible subject of cross-examination. State v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984), cert. denied sub nom. Pierson v. Connecticut, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989); State v. Ramirez, 16 Conn. App. 284, 291, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). Absent any further showing by the defendant, therefore, we cannot conclude that the state made “a conscious and flagrant attempt to build its case out of inferences arising from [Mercier’s] use of the testimonial privilege.” Namet v. United States, supra, 186.

“Nor is this a case where a witness’ invocation of the fifth amendment lent critical weight to the state’s case, as where the prosecutor uses the assertion of the privilege by an accomplice or someone linked to the defendant’s crimes in order to build a case against the defendant.” State v. Reddick, supra, 127; see also United States v. Maloney, 262 F.2d 535 (2d Cir. 1959) (two of the witnesses who invoked their fifth amendment privilege were critical witnesses in the sense that their silence acted as the sole source of potential corroboration for the state’s version of the crime). Merrier was not a key witness in this regard or as a result of any special relationship with the defendant. Compare State v. Williams, 204 Conn. 523, 535, 529 A.2d 653 (1987) (record supported claim of serious prosecutorial misconduct where alleged improper conduct involved cross-examination of the defendant’s principal witness, his wife); People v. Godsey, supra, 75 (reversible error where prosecutor referred to prior fifth amendment invocation of the defendant’s wife).

The defendant contends that Mercier’s assertion of his fifth amendment privilege added critical weight to the state’s case, because through Mercier’s silence the state intended to create the overall impression of a depraved, licentious environment at the defendant’s apartment that would lead the jury to infer that the defendant was guilty of the crimes charged. Such an inference of guilt is not reasonable in this case, however, because the specifications of the charges against the defendant were exclusively acts of a sexual nature. There were no allegations regarding a depraved or immoral environment and drug use was not at issue. Compare People v. Godsey, supra (likelihood that inference of witness’ guilt transferred to defendant, because fifth amendment plea directed toward the same criminal involvement as that for which defendant was on trial). Without any logical nexus between the charges pending against the defendant and the subject matter about which Mercier was questioned, there was no reasonable basis from which the jury could draw an inference of the defendant’s guilt. The defendant’s claim of critical weight, therefore, fails in this respect as well.

Whether examination of a witness regarding his prior fifth amendment invocation for the purpose of impeachment requires reversal due to its prejudicial impact on the outcome of the trial involves the consideration of various factors, including: (1) the remoteness of the witness’ testimony from the crime with which the defendant is charged; (2) the likelihood of juror confusion whereby the defendant is subconsciously linked to the witness’ assertion of the privilege; and (3) the cumulative nature of the evidence, if any, provided by the witness. See United States v. Rubin, supra, 986-88; United States v. Natale, supra, 1171.

In this case, the substance of Mercier’s testimony was remote from the central issue of the case, namely whether the sexual assaults had in fact occurred in the bedroom of the defendant’s apartment as alleged by the victim. Whereas the victim provided direct evidence regarding the incidents in question, Mercier’s testimony only provided circumstantial exculpatory evidence in that he stated that he had never observed any unusual behavior between the defendant and the victim and that in his opinion the defendant was a good father. Thus, the jury could reasonably have believed the testimony of both Mercier and the victim and still have found the defendant guilty. Compare United States v. Tomaiolo, 249 F.2d 683 (2d Cir. 1957) (reversible error where state sought to impeach witness with prior fifth amendment assertion in response to questions regarding specific offense with which defendant was charged).

It is highly unlikely that the jury was confused by the recross-examination regarding Mercier’s prior invocation of the fifth amendment to such an extent that it subconsciously linked the defendant to Mercier’s assertion of the fifth amendment privilege. First, it was evident from the state’s questions, which focused on perception, that the state was trying to impeach Mercier’s credibility rather than trying to create an inference as to the defendant’s guilt. Second, Mercier arguably dispelled any adverse inference that might have been drawn by his prior silence by proceeding to testify that he had not smoked marihuana at the defendant’s apartment while the victim was present. Finally, Mercier responded to the state’s questions regarding inconsistency by explaining that his assertion of the fifth amendment resulted from his lack of understanding and therefore was not inconsistent with his present testimony. Combined with the lack of any connection between marihuana use and the charges against the defendant, Mercier’s rehabilitation made it unlikely that any reasonable juror would be confused and as a result subconsciously link the defendant to Mercier’s invocation of the privilege.

Since other defense witnesses presented testimony similar to Mercier’s regarding their observations and impressions of the defendant and the victim, Mercier’s testimony was cumulative. The defendant claims that the impeachment served to discredit all of the witnesses who presented the same or similar evidence thereby unduly prejudicing the defendant. As previously stated, this argument fails, because the state did not imply that the prior invocation was relevant to any witness’ credibility except that of Mercier.

On the basis of the foregoing, we cannot conclude that the evidentiary rulings of which the defendant complains had a prejudicial impact on the outcome of the trial. State v. Vilalastra, supra; State v. Jones, supra.

II

The defendant also challenges the state’s comments during summation regarding the credibility of Mercier as a defense witness. During final argument, the state attacked Mercier’s credibility by contrasting Mercier’s initial invocation of his fifth amendment privilege in response to questions concerning marihuana use with his subsequent waiver and denial of marihuana use.

Unlike the aforementioned claims of prosecutorial misconduct, this claim was not preserved at trial. The failure to raise distinctly at trial the matter being objected to ordinarily renders a claim unreviewable on appeal. Practice Book § 4185. The defendant, however, urges this court to review his claim as plain error under § 4185. “ ‘Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” State v. Johnson, 214 Conn. 161, 171, 571 A.2d 79 (1990). While the summation remarks were highly inappropriate, under the facts here presented we cannot say that in the context of the entire trial the summation remarks “constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial.” Id.; State v. Hinckley, supra, 88. Accordingly, there is no plain error in this case.

In evaluating the reasons set forth above, we note that the cumulative effect of the contested rulings was not so prejudicial as to have affected the outcome of the trial. Even if we were to consider the defendant’s unpreserved claim'in assessing the overall effect, our conclusion would be the same.

Accordingly, we affirm the judgment of the Appellate Court.

In this opinion the other justices concurred.

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

       General Statutes § 53a-73a provides in pertinent part: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is . . . (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare . . . .”

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

         Regarding its questions on marihuana use, the state claimed: “It’s highly relevant. I claim that as highly relevant. He has testified as far as perceptions of what he observed, what he heard, what he saw, his observations. And, my point here is that he was not in complete control of his faculties, and I ask this question based on good faith, Your Honor. I do not ask it frivolously.”

       During its summation the state argued: “The defendant’s best friend, Dean Mercier, a man who was at the defendant’s apartment, according to him, ninety percent of the time on the weekends, left this courtroom with no credibility whatsoever. First he claims his fifth amendment right not to incriminate himself in response to a line of questioning about his mental [state] and his level of sobriety or lack thereof when he was at that apartment, then, he comes back in and wants to answer the questions in a different way. If he was really being straightforward with us, members of the jury, why didn’t he answer the question the first time? Because he is not being straightforward. He is playing games with this Court. He only wants to help his best friend. He has no credibility. What he saw or did not see at that Danbury apartment is as elusive as a puff of smoke.”

       Practice Book § 4185 provides in pertinent part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       Although the defendant refers to this claim in constitutional terms, at oral argument he clearly stated that his claim of reviewability was premised on the plain error doctrine. Therefore, we see no need to address its review-ability under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       “The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. United States v. Modica, [663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; United States v. Drummond, 481 F.2d 62 (2d Cir. 1973); State v. Floyd, 10 Conn. App. 361, 365, 523 A.2d 1323 [cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126] (1987); ABA Standards for Criminal Justice (Second), The Prosecution Function § 3-5.8 (b) (1985) . . . .” State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987).


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. George Velez
    (13840)
    Peters, C. J., Glass, Covello, Hull and Borden, Js.
    Argued May 8
    decision released July 17, 1990

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Paul Murray, senior assistant state’s attorney, for the appellant (state).

      Brian J. Kornbrath, with whom was Jon L. Schoenhorn, for the appellee (defendant).
   Glass, J.

The defendant, George Velez, was charged with possession of narcotics with intent to sell, in violation of General Statutes § 21a-278 (b). He thereafter filed a motion to suppress all items seized as a result of an allegedly illegal search of his person incident to his arrest. Following a hearing, the trial court denied the defendant’s motion. The defendant then entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, and on June 30, 1988, he was sentenced to a term of five years imprisonment.

The defendant appealed the trial court’s ruling on his motion to suppress to the Appellate Court. On October 24, 1989, the Appellate Court held that the trial court should have granted the defendant’s motion to suppress because the police had arrested him without probable cause. State v. Velez, 20 Conn. App. 168, 181-82, 565 A.2d 542 (1989). On November 29, 1989, this court granted the state’s petition for certification, limited to the following question: “Did the Appellate Court err in concluding that the police had an insufficient basis for relying upon the information furnished by the informant and, therefore, lacked probable cause for the arrest and subsequent search of the defendant?”

The following facts were adduced at the suppression hearing. At approximately 8 p.m. on October 28,1987, the Tri-Town Narcotics Task Force* * executed a search warrant at the South Windsor condominium of Brian Cowell and Lydia Cameron. Cameron was interrogated at the condominium and told the police that Cowell had been dealing drugs for about one year and that his supplier was a man named George Velez from Hartford. After being taken to the police station, Cowell told the police that he was a drug dealer and that George Velez from Hartford was his supplier. Furthermore, Cowell told the police where, in his condominium, they could find his “stash” of two ounces of cocaine that he claimed to have purchased from the defendant earlier that day. The police then found Cowell’s “stash” in a locked tool box located behind a fake wall in his closet. Cowell gave the police the combination to the lock on the tool box, and they found the cocaine inside it.

At the request of the police, Cowell then agreed to set up a narcotics transaction with the defendant for later that night. Using a special “clear line” at the South Windsor police department, Cowell placed a call to the defendant’s home telephone. Cowell told the police that the person who answered the telephone told him that the defendant was not at home, but might be at DePortivo’s, a social club in Hartford. Cowell then called DePortivo’s, asked for the defendant, and after a short delay asked the person to whom he was speaking if he could purchase some “tickets.” The person on the phone told Cowell that he would call him back. Cowell told the police that the person with whom he had spoken was the defendant. When no return call was received, Cowell placed a second call to the defendant at the club. Following this call, Cowell told the police that the defendant would be appearing at a local 7-Eleven convenience store in approximately twenty minutes, with one ounce of cocaine to sell. Cowell also said that the defendant was having mechanical problems with his car, and therefore would probably arrive in another car. Cowell described the defendant as a forty to forty-five year old Hispanic male, who was pudgy, balding and sporting a beard. In addition, while Cowell was at the police station, the police at his condominium verified that the phone numbers that Cowell dialed were listed in his address book as those belonging to the defendant and to DePortivo’s respectively.

The police set up surveillance at the 7-Eleven store in unmarked police cars, and Cowell remained in one of the cars that was parked across the street from the store. At the designated meeting time, a blue car containing two Hispanic males drove into the parking lot and parked in front of the store. Cowell told the officers that the blue car appeared to be that of the defendant’s brother. The passenger in the blue car, who matched Cowell’s description of the defendant, exited the car and walked into the store. Cowell tentatively-identified this person as the defendant. One of the police officers then left his surveillance vehicle and entered the store to observe the suspect more closely. After satisfying himself that the suspect fit the description of the defendant, the officer returned to his surveillance post, observing along the way the registration number of the blue car. Using a public telephone next to his car, the officer called police headquarters and was informed that the blue car was registered to Felix Velez, whom Cowell had previously stated was the defendant’s brother.

After purchasing some food items, the defendant emerged from the store and got back into the blue car, which began to drive out of the lot. An unmarked police car then blocked its path, and officers wearing badges on chains around their necks and shouting “police” began to converge on the car. The car was then quickly shifted into reverse and began to back up. An officer, however, reached into the car, opened the driver’s side door, took the car out of gear, and pried the driver’s hand from the shifter. Both occupants were then removed from the car and searched. The driver of the car was identifed as Felix Velez and the passenger identified himself as George Velez. The search of the defendant’s person produced two packages of cocaine, one containing approximately one ounce and the other one or two grams.

On the basis of this evidence, the trial court found that the defendant had been “arrested” when the car was stopped and he was removed therefrom. It found further that, at the time of the arrest, the police had probable cause to believe that the defendant was in possession of narcotics with intent to sell, and therefore the search of the defendant’s person was lawfully conducted incident to the arrest. The state now argues on appeal that the trial court correctly determined that probable cause existed at the time of the defendant’s arrest, and therefore, the Appellate Court should not have overturned the trial court’s ruling. We agree.

“It is an established rule that a properly conducted warrantless search incident to a lawful arrest is not illegal. State v. Cobuzzi, 161 Conn. 371, 373, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972); State v. Collins, 150 Conn. 488, 492, 191 A.2d 253 (1963); 4 Wharton, Criminal Evidence § 725 (13th Ed.). In order for the search to be legal, however, the arrest itself must be valid. State v. Cobuzzi, supra, 375; 4 Wharton, loe. cit. Section [54-If] of the General Statutes authorizes a police officer to arrest, without a warrant, ‘any person who such officer has reasonable grounds to believe has committed or is committing a felony.’ ‘Reasonable grounds’ is to be equated with probable cause. State v. Cobuzzi, supra, 376; State v. Wilson, 153 Conn. 39, 41, 212 A.2d 75 (1965). Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).” State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

“In State v. Kimbro, 197 Conn. 219, 233, 496 A.2d 498 (1985), we concluded that article first, § 7, of the Connecticut constitution ‘affords more substantive protection to citizens than does the fourth amendment to the federal constitution in the determination of probable cause.’ Accordingly, we held that the determination of probable cause under article first, § 7, is to be examined under the two-prong analysis of the Aguilar-Spinelli test, rather than under the less strict ‘totality of the circumstances’ analysis set out in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). State v. Kimbro, supra, 235-36; see Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).” State v. Ruscoe, 212 Conn. 223, 228, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). Under this test, the sufficiency of the information that is derived from an informant depends upon the existence of (1) the informant’s “basis of knowledge” about the information provided, and (2) the underlying facts establishing his “veracity.” (Emphasis added.) State v. Kimbro, supra, 224-25; State v. Morrill, 205 Conn. 560, 566-67, 534 A.2d 1165 (1987). Furthermore, the reviewing court should pay great deference to the trial court’s determination regarding the existence of probable cause. State v. Kimbro, supra, 222, 226, 232.

In the present case, we hold that the trial court was correct in concluding that there was sufficient evidence to support both prongs of the Aguilar-Spinelli test. The “basis of knowledge” prong “examines the information provided by the informant to determine if it ‘relate[s] sufficient facts from which a judge reasonably could conclude that the [informant] based [his] allegations of criminal activity on sufficient underlying circumstances.’ State v. Delmonaco, [194 Conn. 331, 339, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984)].” State v. Morrill, supra, 566. Cowell’s information was not based upon hearsay or unsubstantiated rumor. Rather, he clearly had first-hand information concerning the identity of his source. Therefore, the “basis of knowledge” prong was satisfied in this case.

As for the “veracity” prong, it may be satisfied by establishing that the informant was credible or that his information was reliable. Id., 567. Two common factors used to evaluate the reliability of an untested informant’s tip are: (1) declarations against penal interest by the informant-declarant; and (2) corroboration of the information by police. State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981). Cowell’s admission that he was a drug dealer and that he had purchased cocaine from the defendant earlier that day, as well as his statement concerning the location of his hidden “stash” of cocaine are all declarations against penal interest. See State v. Just, 185 Conn. 339, 368-69, 441 A.2d 98 (1981); State v. Ferguson, supra, 114-15. “Courts have generally subscribed to the view that admissions against penal interest by an informant ‘carry their own indicia of credibility—sufficient at least to support a finding of probable cause.’ United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); 1 LaFave, Search and Seizure § 3.3, p. 523. This principle has been applied by this court to find adequate verification of the reliability of an informant’s naming of other participants in a crime where at least some significant details of his account of the crime itself have been corroborated independently . . . .” State v. Daley, 189 Conn. 717, 722, 458 A.2d 1147 (1983).

In the present case, the following aspects of Cowell’s statement to the police were independently corroborated. The location at which Cowell claimed he had hidden the cocaine that he had allegedly purchased from the defendant earlier in the day was accurate and verified by the police. Cameron corroborated Cowell’s statement that he was a drug dealer and that his supplier was George Velez. The police discovered the name “George Velez” and phone numbers at which to reach him in Cowell’s personal pocket address book found in his condominium. The police observed Cowell dialing these phone numbers, heard him ask for George Velez and listened as he arranged a drug transaction with a person whom he claimed was the defendant. The defendant arrived at the specified time at the purchase site as a passenger in a car that was not his own, as Cowell claimed he would. Cowell tentatively identified the defendant as George Velez, and the police independently verified that the defendant fit the description that Cowell had provided earlier. Finally, the police independently verified that the car in which the defendant arrived belonged to Felix Velez, who Cowell had previously stated was the defendant’s brother. In sum, although it is a close call, we conclude that there was enough corroborative evidence available to the police to satisfy the “veracity prong” in this case.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reinstate the judgment of the trial court.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21a-278. (Formerly Sec. 19-480a). penalty FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION OR ADMINISTRATION BY NON-DRUG-DEPENDENT PERSON. . . .
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       “[General Statutes (Rev. to 1987)] Sec. 54-94a. conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The Tri-Town Narcotics Task Force is a regional drug task force whose members are drawn from the police departments of South Windsor, Manchester and Vernon.

       A “clear line” is a telephone line that has a phone number different from the general police department phone number and is answered with a simple “Hello.”

       Cowell explained that a “ticket” represented one ounce of cocaine.


author: Peters, C. J.

text:
    James Payne v. Fairfield Hills Hospital et al.
    (13875)
    Peters, C. J., Shea, Glass, Hull and Borden, Js.

      Argued May 31
    decision released July 24, 1990

      Salvatore C. DePiano, with whom was Edward F. Czepiga II, for the appellant (plaintiff).

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Richard J. Lynch and Andrea B. Gaines, for the appellees (named defendant et al.).

      Mary H. Lesser, deputy assistant state’s attorney, for the appellee (defendant Mary M. Galvin).
   Peters, C. J.

The sole issue in this appeal is the constitutionality of the 1985 statute creating the psychiatric security review board (PSRB), an agency charged with monitoring the mental condition of persons acquitted of criminal charges by reason of mental disease or defect, with respect to a pre-1985 acquittee. The plaintiff, James Payne, acquitted of murder by reason of mental disease or defect and confined to a mental hospital in 1980, sought to enjoin the PSRB from exercising jurisdiction over him on the ground that the statute creating the board is a “quasi-criminal” statute that violates the ex post facto prohibition in article one, § 10 of the United States constitution. The trial court rendered judgment denying the plaintiffs application for temporary and permanent injunctive relief. This court transferred here, in accordance with Practice Book § 4023, the plaintiffs appeal from this judgment. We now affirm.

The material facts are not in dispute. The plaintiff was found not guilty of murder by reason of mental disease or defect on February 1,1980. In April, 1980, following an initial confinement for psychiatric evaluation, the trial court ordered the plaintiff to be confined to Fairfield Hills Hospital pursuant to General Statutes § 53a-47 for a period not to exceed twenty-five years.

In April, 1989, the state’s attorney for the judicial district in which the plaintiff had been tried requested that the PSRB, established in 1985 by General Statutes § 17-257b, transfer the plaintiff from Fairfield Hills Hospital to another facility. She cited as grounds for her request the failure of Fairfield Hills Hospital properly to monitor the plaintiff, to file timely reports concerning the plaintiff, and to follow suggestions made by the PSRB. In response to her motion, the executive director of the PSRB ordered an independent psychiatric examination of the plaintiff to evaluate his current mental status, psychiatric diagnosis, recommended treatment and level of supervision, and his potential dangerousness.

The plaintiff refused to submit to the PSRB’s order. Rather, on May 15,1989, he filed a verified complaint in the Superior Court contesting the PSRB’s jurisdiction over him and seeking temporary and permanent injunctive relief against the state’s attorney, the PSRB, and Fairfield Hills Hospital. He challenged the statutory propriety and constitutionality of the actions of the PSRB regarding his confinement, alleging that the actions constituted a deprivation of his rights to due process of law and to the equal protection of the laws.

The defendants moved to dismiss the action on the ground that the plaintiff’s failure to exhaust available administrative remedies deprived the court of subject matter jurisdiction. At a subsequent hearing, the parties stipulated to the material facts, requested the court to take judicial notice of the controlling law at the various times at issue, and agreed to join all issues for resolution at one time.

The trial court denied the motion to dismiss, ruling that the plaintiff was not required to submit to the jurisdiction of the PSRB and thus exhaust his administrative remedies before bringing an independent action to challenge the constitutional validity of the PSRB’s jurisdiction over him. On the merits, the court held that the challenged statutory provisions, because they are purely procedural in character, do not constitute an ex post facto law within the meaning of the constitutional prohibition. The court further concluded that the statute contemplated a continuing and significant role for the state’s attorney in monitoring the mental condition of acquittees, as exercised by the state’s attorney in this case.

The plaintiff’s appeal raises three issues. Did the trial court correctly rule that: (1) the plaintiff was not required to exhaust administrative remedies before instituting his lawsuit; (2) the act did not violate the constitutional prohibition against ex post facto laws; and (3) the act was properly invoked, on its own terms, to review the plaintiff’s psychiatric status? We affirm each of the rulings of the trial court.

I

Because the doctrine requiring exhaustion of administrative remedies implicates subject matter jurisdiction, we first address whether that doctrine requires dismissal of the plaintiff’s claims. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). The doctrine of exhaustion fosters the orderly processes of administrative adjudication and judicial review by providing the reviewing court with the benefit of the agency’s findings and conclusions. Id., 557. Accordingly, a party who has a statutory right of appeal from a decision of an administrative agency may not bring an independent action to test the very issues that the statutory appeal was designed to test. Pet v. Department of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). Even a claim that an administrative agency has exceeded its statutory authority or jurisdiction may be the subject of an administrative appeal. Cannata v. Department of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990); Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989).

The doctrine of exhaustion is nevertheless subject to certain narrowly circumscribed but well recognized exceptions. One such exception involves a challenge to the constitutionality of the statute or regulation under which an agency operates, rather than to the actions of the board or agency. LaCroix v. Board of Education, 199 Conn. 70, 79 n.7, 505 A.2d 1233 (1986); Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980). Although the mere allegation of a constitutional violation will not necessarily excuse a plaintiffs failure to exhaust available administrative remedies; Pet v. Department of Health Services, supra, 354-56; Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983); we have permitted, under special circumstances, a collateral constitutional challenge to the action of an administrative agency even in the absence of a direct appeal. LaCroix v. Board of Education, supra, 80; Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979); see also Greater Bridgeport Transit District v. Local Union 1336, supra, 440 n.2.

In the present case, the plaintiff concedes that General Statutes § 17-257w (c) expressly subjects all acquittees in his situation to the jurisdiction of the PSRB. He has alleged, however, that the statute cannot be applied to him because it imposes conditions on his confinement more onerous than those in effect at the time of his trial and is thus a violation of the federal constitutional prohibition against ex post facto laws. This is therefore not a case in which an administrative agency should be called upon to determine particular facts or to exercise its discretion. See McKart v. United States, 395 U.S. 185, 193-95, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); Finnerty v. Cowen, 508 F.2d 979, 982 (2d Cir. 1974). The plaintiffs claim is in effect a plenary challenge to the constitutionality of the statute as applied to all acquittees in the plaintiffs position. He asserts that it is constitutionally inappropriate for the PSRB to exercise any role in his continued psychiatric supervision.

The plaintiffs challenge to the jurisdiction of the PSRB is readily distinguishable from the somewhat similar claim that we recently rejected in Cannata v. Department of Environmental Protection, supra. In Cannata, the plaintiffs argued that they should not be compelled to submit to the jurisdiction of the department of environmental protection for exhaustion of administrative remedies because their proposed use of land did not constitute an obstruction or encroachment within the meaning of the statute on which such jurisdiction would depend. We concluded, to the contrary, that the agency possessed technical expertise in evaluating particular land uses, and that its determinations would provide the necessary factual record for any subsequent judicial review. We noted, in addition, that the plaintiffs in Cannata had failed to assert any constitutional claims on appeal.

In the present case, in contrast, the plaintiff does not dispute the statutory authority of the PSRB to assume jurisdiction over him; rather, he asserts that the statute itself is unconstitutional as applied to him. The PSRB’s expertise in making factual determinations regarding the mental condition of acquittees is therefore of no use in evaluating the plaintiffs legal claim. In view of the substantial constitutional question raised by this claim, the trial court properly concluded that it possessed jurisdiction to entertain such a challenge without first requiring the plaintiff to pursue an administrative remedy. See LaCroix v. Board of Education, supra.

II

The plaintiff acquittee asserts that two aspects of the act establishing the PSRB are unconstitutional as applied to him: first, the act shifts to the acquittee the burden of proving that he is not mentally ill or dangerous in order to secure his discharge; General Statutes § 17-257n (f); and second, it requires the superintendent of any mental hospital in which the acquit-tee is confined to seek an authorizing order from the PSRB in order to release him on a temporary leave. General Statutes § 17-257h. The plaintiff argues that these procedural changes constitute an ex post facto law because they retroactively impose more burdensome procedures than those in effect in 1980, when he decided to plead not guilty by reason of mental disease or defect.

As the trial court correctly observed, changes in procedural law do not ordinarily give rise to violations of the prohibition against ex post facto laws in article one, § 10 of the United States constitution. “[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation . . . and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Beazell v. Ohio, 269 U.S. 167, 171, 46 S. Ct. 68, 70 L. Ed. 216 (1925); see also Collins v. Youngblood, U.S. ,110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). Moreover, the ex post facto clause prohibits a state only from passing a law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed . . . .” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867), quoted in Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).

As a general matter, the confinement of insanity acquittees, although resulting initially from an adjudication in the criminal justice system, is not “punishment” for a crime. “The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. ... As he was not convicted, he may not be punished. His confinement rests on his continuing illness and dangerousness.” Jones v. United States, 463 U.S. 354, 368-69, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983). This court recognized the same principle in Franklin v. Berger, 211 Conn. 591, 560 A.2d 444 (1989), when we held that an insanity acquittee was not entitled to credit against his period of confinement for time served in jail prior to his trial, although persons convicted of crimes and sentenced to prison would receive such credit, because the only determinant of the length of an acquittee’s confinement is his mental health. This plaintiff therefore has no constitutional grounds to object to the order of the PSRB requiring him to submit to a psychiatric examination to reassess the terms of his present confinement.

The plaintiff’s other ex post facto claims are purely speculative. Since the effective date of the act, the plaintiff has sought neither a temporary leave nor his permanent discharge. We do not resolve questions of the constitutional validity of statutes unless the case presents both the practical necessity for such a resolution and a sufficient factual background for informed adjudication. See Lehrer v. Davis, 214 Conn. 232, 235, 571 A.2d 691 (1990); State v. Modera, 198 Conn. 92, 105, 503 A.2d 136 (1985). “A party mounting a constitutional challenge to the validity of a statute must provide an adequate factual record in order to meet its burden of demonstrating the statute’s adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven.” Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987).

The plaintiff argues, however, that if these two aspects of the act may be unconstitutional as applied to him, then the PSRB created by the same act has no legitimate constitutional authority over any aspect of his confinement. The plaintiffs contention that the constitutional invalidity of one provision of a statute renders the entire statute unconstitutional is baseless. The legislature has expressed its intention, by General Statutes § 1-3, that courts should presume the sever-ability of the provisions and the applications of statutes. To overcome the presumption of severability, a party must show that the portion declared invalid is “so mutually connected and dependent on the remainder of the statute as to indicate an intent that they should stand or fall together” and that the interdependence is such that the legislature would not have adopted the statute without the invalid portion. State v. Menillo, 171 Conn. 141, 145, 368 A.2d 136 (3976).

Not surprisingly, the plaintiff has not attempted to make such a showing here. The legislature prefaced the section making the statute applicable to all acquittees with the words “[ujnless otherwise prohibited by law.” General Statutes § 17-257w (a). This language strongly suggests that the legislature intended the statute to be applied to the full extent permitted by constitutional or statutory restrictions. We conclude, therefore, that even a successful constitutional challenge to the shift in burden of proof or to the additional procedural requirements for temporary release would not inevitably render the general jurisdiction of the PSRB similarly unconstitutional, and that there is no present impediment to the exercise of the PSRB’s statutory authority over the plaintiff.

Ill

Having concluded that the plaintiffs constitutional challenge to the act establishing the PSRB is in large part premature and that the challenged provisions are in any event severable, we now turn to his statutory argument. The plaintiff maintains that neither the PSRB nor the state’s attorney has the statutory authority to compel the plaintiff to undergo an independent psychiatric examination unless the plaintiff requests a change in his status. We disagree.

The language of General Statutes § 17-257Í plainly refutes the plaintiff’s claim with regard to the PSRB. This statute requires the PSRB to hold a hearing to review the mental condition of an acquittee not less than every two years, and General Statutes § 17-257q expressly authorizes the PSRB, the acquittee and the state’s attorney each to choose a psychiatrist to examine the acquittee prior to any hearing by the PSRB.

The authority of the state’s attorney to request reevaluation of the acquittee’s mental condition is similarly evident throughout the act. The PSRB must furnish to the state’s attorney copies of all reports received regarding an acquittee’s mental condition; see, e.g., General Statutes §§ 17-257g, 17-257Í, 17-257k, 17-257? and 17-257m; and must give the state’s attorney written notice prior to any hearing. See, e.g., General Statutes §§ 17-257Í, 17-257? and 17-257m. The act refers to the state’s attorney as an “interested party” in proceedings before the PSRB regarding the mental condition of an acquittee; see, e.g., General Statutes § 17-257q (b); and expressly authorizes the state’s attorney to furnish information to the PSRB about any conditionally released acquittee. General Statutes § 17-257o.

In the present case, the plaintiff challenged the authority of the state’s attorney to request the plaintiff’s transfer to another institution. The effect of the request, however, was merely to put into motion a review by the PSRB of the appropriateness of the plaintiff’s present confinement. The act plainly grants such authority to the PSRB and just as plainly authorizes the participation of the state’s attorney in the reviewing process. The plaintiff’s statutory claim is therefore unavailing.

The judgment is affirmed.

In this opinion the other justices concurred.

       Article one, § 10 of the United States constitution provides in relevant part: “No State shall . . . pass any ... ex post facto Law

       Although his constitutional complaint originally alleged a deprivation of his rights to due process of law and to equal protection of the laws, in his brief at trial the plaintiff focused on an alleged violation of the prohibition against ex post facto laws.

       We have also recognized an exception to the exhaustion requirement where recourse to the administrative process is futile or provides an inadequate remedy. Pet v. Department of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988); Greenwich v. Liquor Control Commission, 191 Conn. 528, 541-42, 469 A.2d 382 (1983). An administrative remedy is futile or inadequate if the agency lacks authority to grant the requested relief. Camnata v. Department of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990). Federal courts have frequently held that an administrative agency lacks the authority to declare its own enabling act unconstitutional. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 764-65, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); Finnerty v. Cowen, 508 F.2d 979, 982 (2d Cir. 1974).

       General Statutes § 17-257w (c) provides in relevant part: “All persons confined as a danger to themselves or others pursuant to section 53a-47 of the general statutes, Revision of 1958, revised to January 1,1985, shall be deemed committed to the jurisdiction of the board on July 1,1985, and for the remainder of the term of commitment.”

       In 1980, General Statutes (Rev. to 1979) § 53a-47 governed the confinement of persons acquitted of crimes by reason of mental disease or defect. Under its terms, the plaintiff could have been confined more than twenty-five years only if the state, within ninety days of the end of that term, had petitioned the court for an order of continued confinement and had proved, by a preponderance of the evidence, that continued confinement was warranted because the plaintiff was mentally ill to the extent that his release would pose a danger to himself or others. The plaintiff could have been released at any time prior to the statutory maximum if the superintendent of the facility in which he was confined had certified to the court that he was no longer mentally ill or dangerous, unless the state could establish continuing dangerousness by a preponderance of the evidence. Section 53a-47 was repealed by Public Acts 1985, No. 85-506, § 31, the act in which the legislature created the PSRB. The 1985 act, codified at General Statutes §§ 17-257a through 17-257w, empowered the PSRB to review on a regular basis the mental condition of all persons confined to mental health facilities after acquittal of criminal charges by reason of mental disease or defect. The 1985 act also empowered the PSRB to grant temporary leaves and conditional release, to monitor the mental condition of acquittees on conditional release, and to make recommendations to the court regarding discharge from custody. The act placed on the acquittee the burden of proving fitness, by a preponderance of the evidence, for any order of less restrictive confinement or discharge. Finally, the act expressly conferred on the PSRB jurisdiction over all acquittees confined prior to its effective date.

       General Statutes § 1-3 provides: “validity of separate provisions of ACTS. If any provision of any act passed by the general assembly or its application to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of such act.”

       General Statutes § 17-257w (a) provides in relevant part: “Unless otherwise prohibited by law, sections 17-257a to 17-257v, inclusive, apply . . . (2) to any person who, prior to July 1, 1985, was found not guilty by reason of mental disease or defect, or guilty but not criminally responsible, pursuant to section 53a-13, and who, on July 1,1985, is confined, temporarily confined, or otherwise subject to court supervision pursuant to section 53a-47 of the general statutes, Revision of 1958, revised to January 1,1985.”

       General Statutes § 17-257Í provides: “periodic review by board. The board shall conduct a hearing and review the status of the acquittee not less than once every two years. At such hearing the board shall make a finding and act pursuant to section 17-257e.”
      General Statutes § 17-257e in turn provides in relevant part that “[a]t any hearing before the board considering the discharge, conditional release or confinement of the acquittee . . . the board shall make a finding as to the mental condition of the acquittee . . . ."

       General Statutes § 17-257q provides in relevant part: “(a) Prior to any hearing by the board concerning the discharge, conditional release or confinement of the acquittee, the board, acquittee and state’s attorney may each choose a psychiatrist or psychologist to examine the acquittee. The results of the examination shall be in writing and filed with the board, and shall include, but need not be limited to, an opinion as to whether the acquit-tee is mentally ill or mentally retarded to the extent that his release would constitute a danger to himself or others and whether the acquittee could be adequately controlled with treatment as a condition of release. To facilitate examination of the acquittee, the board may order him placed in the temporary custody of any hospital for mental illness or other suitable facility or placed with the commissioner of mental retardation.”


text:
    Linda C. Waterman v. United Caribbean, Inc., et al.
    (13871)
    Peteks, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued May 30
    decision released July 24, 1990

      Haden P. Gerrish, with whom, on the brief, were Bruce F. Cohen and Fernando F. deArango, for the appellant (plaintiff).

      Paul L. Bollo, for the appellees (defendants).
   Peters, C. J.

The sole issue in this appeal is whether a party’s prejudgment refusal to consent to an extension of time deprives a trial court of personal jurisdiction to render a judgment beyond the 120 day period allowed under General Statutes § Sl-lSSb. The plaintiff, Linda Waterman, initiated this action to recover damages on a defaulted promissory note and on related allegations of fiscal misconduct from the defendants, United Caribbean, Inc., Carl H. Freyer and Freyer Corporation. The trial court rendered judgment, beyond the 120 day period of § 51-183b, in favor of the plaintiff against the named defendant but in favor of the remaining defendants. Although the defendants, who had originally refused, then consented to the delayed judgment, the trial court granted the plaintiff’s motion to vacate its judgment and to declare a mistrial. On the defendants’ appeal to the Appellate Court, that court reversed the judgment of the trial court and ordered a reinstatement of the defendants’ judgment. Waterman v. United Caribbean, Inc., 20 Conn. App. 283, 566 A.2d 443 (1989). This court granted the plaintiff’s petition for certification to appeal, and we now reverse the judgment of the Appellate Court.

The procedural issues arise out of a 1981 agreement between the plaintiff and the named defendant, a newly formed corporation established to invest in real estate in the United States Virgin Islands. The plaintiff advanced the named defendant $50,000 in return for a promissory note obligating the defendant to repay the principal sum plus interest in the amount of 10 percent per annum. When the business venture failed, the plaintiff commenced this action on the defaulted note against the named defendant and to recover damages for fraud, misrepresentation and breach of fiduciary duty from the remaining defendants.

The issues were tried to the court in proceedings that ended on August 17,1987, and the last posttrial brief was filed on May 23,1988. Waterman v. United Caribbean, Inc., supra, 284. By a letter dated October 5, 1988, which acknowledged that a judgment had not been rendered within the 120 day period required by § 51-183b, the trial court asked the parties to consent to an extension of time until December 15, 1988. Id. The plaintiff acceded to this request, but the defendants, by telephone and by letter dated October 25,1988, refused to agree. Id., 283-84. Knowing of the defendants’ refusal, the trial court on October 26,1988, issued an abbreviated memorandum of decision limiting the plaintiff’s recovery to her action against the named defendant on the promissory note but otherwise ruling in favor of the defendants. Recognizing that this ruling was substantially in their favor, the defendants thereafter, by letter dated October 28,1988, attempted to execute a consent to the late rendering of the judgment.

In its order granting the plaintiff’s motion to set aside the judgment and for a new trial, the trial court interpreted the waiver provision of § 51-183b to require the consent of all parties, executed prior to the issuance of the belated decision. Since the defendants had not so consented, the court vacated the judgment it had rendered. The Appellate Court disagreed, holding that failure to consent to a waiver before a late judgment “does not preclude that party from waiving or asserting that requirement after a late judgment has been rendered.” Id., 287. The Appellate Court took the view that the plaintiff was bound by her express waiver from the time of its execution, but that the defendants had legally retained the option either to avoid or to ratify the judgment by appropriate action within a seasonable period after its rendition. Id., 287-88.

The plaintiff contends on appeal that, under the circumstances of this case, the trial court, when it rendered its judgment beyond the time period permitted by § 51-183b, lacked the requisite personal jurisdiction over the defendants and its judgment was therefore void. Because we agree with this contention, we need not consider the plaintiffs alternate arguments challenging the trial court’s subject matter jurisdiction and the constitutionality of its decision in favor of the defendants.

Section 51-183b is the most recent revision of legislation that, in order to reduce delay and its attendant costs, imposes time limits on the power of a trial judge to render judgment in a civil case. The origin of the section may be traced to chapter 3 of the Public Acts of 1879. Spelke v. Shaw, 117 Conn. 639, 643, 169 A. 787 (1933). Situations such as that presented in Jaques v. Bridgeport Horse-Railroad, Co., 43 Conn. 32 (1875), wherein this court held that following the completion of a trial, judgment in a case could not be held over until the following term absent the consent of the parties, probably inspired the original provision. Spelke v. Shaw, supra.

In past cases interpreting § 51-183b and its predecessors, we have held that the defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v. George A. Douglas & Bro., Inc., 121 Conn. 377, 380, 185 A. 70 (1936). We have characterized a late judgment as voidable rather than as void; Borden v. Westport, 112 Conn. 152, 154, 151 A. 512 (1930); Lawrence v. Cannavan, 76 Conn. 303, 306, 56 A. 556 (1903); and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties. See, e.g., Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952); Whitaker v. Cannon Mills Co., supra. Thus, if both parties simultaneously expressly consent to a late judgment, either before the judgment is issued, or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied. Gordon v. Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973); Borden v. Westport, supra; Cheshire Brass Co. v. Wilson, 86 Conn. 551, 560, 86 A. 26 (1913). Because consent may be implied from a failure to object seasonably after a delayed judgment has been rendered, these cases do not support the trial court’s ruling that § 51-183b invariably requires the prior consent of both parties in order to waive the time limits the statute imposes.

These implied consent cases establish that an unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object. It is for this reason that a late judgment is merely voidable, and not void. It is for this reason as well that the issues arising under § 51-183b have focused on the question of waiver.

We have concluded that waiver has validated a judgment voidable under § 51-183b and its predecessors in one of two factual contexts. In the first context, the losing party has promptly sought to set aside an unfavorable judgment, only to be met by the winning party’s claim of waiver by virtue of the losing party’s prejudgment conduct. See, e.g., Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 537-40, 294 A.2d 573 (1972); Hurlbutt v. Hatheway, supra, 263-64; Lawrence v. Cannavan, supra, 307-308. In the second context, the losing party has allowed the defective judgment to stand without objection for an unseasonable period of time and through inaction has enabled the winning party to claim implied consent to the delay that has occurred. See, e.g., Gordon v. Feldman, supra, 556-57; Borden v. Westport, supra, 154; Cheshire Brass Co. v. Wilson, supra, 560.

The present case does not fit neatly into either of these familiar scenarios. The plaintiff’s agreement to the trial judge’s request for an extension of time within which to render judgment undoubtedly waived any issue with regard to the court’s continuing personal jurisdiction over her. The consequences of the defendants’ prejudgment refusal of this request, and their postjudgment change of position, are more difficult to assess. We must decide whether the defendants’ initial nonwaiver so definitively deprived the trial court of personal jurisdiction over them that their subsequent attempt to waive the delay, immediately after judgment had been rendered, was ineffectual to validate the court’s judgment.

The defendants argue that because the consent of the parties may confer personal jurisdiction upon a court, their execution of a consent following the trial judge’s issuance of the late, yet favorable, judgment was sufficient to cure any defect therein. That argument would be persuasive if the defendants had remained silent prior to the late rendering of the judgment. In such a situation, the court would have continued to have had personal jurisdiction to enter a voidable judgment, and the defendants’ subsequent consent would have cured the defect in the judgment. A similar result would have followed if the defendants had retracted their initial refusal before the trial judge had rendered its judgment. In such circumstances, the retraction would have empowered the court to exercise personal jurisdiction, at the time it rendered the judgment, to issue a voidable judgment to which the defendants could have then consented or objected.

In the present case, however, the defendants’ initial refusal to consent to a late judgment deprived the court of personal jurisdiction over them. The defendants’ prejudgment exercise of the authority conferred upon them by § 51-183b to refuse to waive the delay had the same effect as a timely objection after judgment would have had. By their conduct, they made the judgment, when rendered, not merely voidable but void. Although a voidable judgment may be cured, a void one may not. The defendants’ execution of a consent following the late judgment’s issuance therefore had no legal effect.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reinstate the trial court’s declaration of a mistrial and order for a new trial.

In this opinion the other justices concurred.

       General Statutes § 51-183b provides: “Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       We limited the plaintiff’s appeal to the following question: “Did the Appellate Court err in concluding that a trial court may properly render judgment beyond the 120 day period allowed by Connecticut General Statutes § 51-183b without the waiver or consent of all parties prior to rendition of the judgment?” Waterman v. United Caribbean, Inc., 213 Conn. 813, 569 A.2d 549 (1990).

       The defendant Carl H. Freyer was an incorporator, director and officer of the named defendant. At the same time, he was also president of the defendant Freyer Corporation, which received certain fees from the named defendant.


text:
    Roy E. Casey v. Commissioner of Correction Milton Green v. Commissioner of Correction
    (13721)
    (13858)
    Peters, C. J., Glass, Covello, Hull and Borden, Js.
    Argued May 8
    decision released July 24, 1990

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant in both cases (respondent).

      John W. Watson, assistant public defender, for the appellee (petitioner in the first case).

      Ernest F. Teitell, with whom, on the brief, was Catherine C. Ziehl, for the appellee (petitioner in the second case).
   Hull, J.

The sole issue in these appeals is whether in calculating a prisoner’s sentence credits, confinement time served under a subsequently vacated sentence may be credited against the later valid sentence as presentence time under General Statutes § 18-98d. In view of this court’s decision in Sutton v. Lopes, 202 Conn. 343, 521 A.2d 147 (1987), we conclude that it is proper to characterize time served on a subsequently vacated sentence as presentence time and credit it against a new valid sentence under § 18-98d. Accordingly, we affirm the judgments of the trial courts.

The following stipulated facts are relevant to these appeals. On April 20, 1982, the petitioner in the first case, Roy E. Casey, was committed to the custody of the respondent, the commissioner of correction, in lieu of bond in connection with an alleged criminal offense that had occurred on the prior day. Following a jury trial, Casey was found guilty of murder in violation of General Statutes § 53a-54a and on June 16,1983, was sentenced to a term of twenty-five years imprisonment. On August 16,1986, this court set aside the judgment of conviction and remanded the case for a new trial. State v. Casey, 201 Conn. 174, 189, 513 A.2d 1183 (1986). On June 11,1987, Casey pleaded guilty to manslaughter in the first degree in violation of General Statutes § 53a-55 and received a sentence of fifteen years imprisonment.

The respondent calculated Casey’s sentence credits according to General Statutes § 53a-38 (c), treating the sentence for manslaughter as if it had been imposed on June 16, 1983, the date the vacated sentence for murder had been imposed. As a result, the confinement time between the vacated sentence and the valid sentence was credited against Casey’s sentence as sentence time rather than as presentence time. The ultimate effect was that Casey received 477 fewer days credit than he would otherwise have received under § 18-98d.

Casey filed a petition for a writ of habeas corpus in the trial court wherein he alleged illegal confinement as a result of the respondent’s miscalculation of his sentence. The trial court granted the petition and ordered the respondent to treat Casey’s sentence as having commenced on the date it was in fact imposed and to credit the time served prior thereto as presentence time according to § 18-98d.

The petitioner in the second case, Milton Green, was committed to the custody of the respondent in lieu of bond on April 14, 1983, in connection with a pending criminal action. Following a jury trial, he was found guilty of felony murder in violation of General Statutes § 53a-54c and on July 27,1984, was sentenced to a term of thiry-eight years imprisonment. On April 5, 1988, this court set aside the judgment of conviction and remanded the case for a new trial. State v. Green, 207 Conn. 1, 15, 540 A.2d 659 (1988). On February 22, 1989, Green pleaded guilty to attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (1) and received a sentence of fifteen years imprisonment.

The respondent calculated Green’s sentence credits in the same manner that he had calculated those of Casey. The sentence for attempted robbery was treated as if it had been imposed on the date of the imposition of the vacated sentence for felony murder. As a result, the confinement time between the vacated sentence and the subsequent valid sentence was credited as sentence time rather than as presentence time. The practical effect was that Green received 482 days less credit than he would have received if the time in question had been credited as presentence time under § 18-98d.

Green filed a petition for a writ of habeas corpus in the trial court. He claimed that he was being confined illegally due to the respondent’s miscalculation of his sentence. The trial court granted the petition and ordered the respondent to calculate Green’s sentence as having commenced on the date it was actually imposed and to credit all confinement time prior thereto as presentence time under § 18-98d.

The respondent, on the granting of certification, appealed both of the trial court judgments to the Appellate Court. We subsequently transferred the appeals to ourselves pursuant to Practice Book § 4023.

The respondent claims that the trial courts should not have ordered the respondent to calculate the petitioners’ sentences as having commenced on the date the valid sentences were imposed and to credit the previously served time as presentence time under § 18-98d. We do not agree.

In Sutton v. Lopes, supra, 349, this court upheld the decision of the trial court to treat time served on a vacated sentence as presentence time and to credit the time accordingly in calculating sentence credits. We rejected the claim that § 53a-38 (c) bars crediting the confinement time as such, observing that “§ 53a-38 (c), in keeping with the mandate of North Carolina v. Pearce, [395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)], is a general statutory provision which requires that a prisoner be given full credit for time served on a vacated sentence. Moscone v. Manson, [185 Conn. 124, 131, 440 A.2d 848 (1981)]. It ‘does not specify what type of “credit” it refers to.’ Id., 133 (Healey, J., concurring).” Sutton v. Lopes, supra, 348. “[TJhe plain language of § 53a-38 (c) requires only that some form of credit for time served be awarded . . . it is irrelevant to any other statutory credit. Moscone v. Manson, supra, 131-32. Therefore ... § 53a-38 (c) does not bar crediting the time [served on a vacated sentence] as presentence confinement.” Id., 348-49.

The respondent first contends that Sutton v. Lopes, supra, does not apply to the present cases, because that case involved calculation of sentence credits under General Statutes § 18-97 rather than § 18-98d. Although we recognize that distinctions exist between § 18-97 and § 18-98d, these differences have no bearing on the applicability of Sutton to these cases. The dispositive issue in that case was the same as that presented here, namely, whether time served on a vacated sentence may be credited against a sentence as presentence time. Sutton, therefore, clearly applies.

The respondent claims in the alternative, that Sutton should not be adhered to in these cases and that the decisions of the trial courts should be reversed due to the adverse consequences the decisions will have on prisoners who are not parties in these appeals. “A case must be decided on the formal record and a court cannot resort to matters extraneous to the record in making its determination. Hasbrouck v. Hasbrouck, 195 Conn. 558, 560, 489 A.2d 1022 (1985).” State v. Gilnite, 202 Conn. 369, 378, 521 A.2d 547 (1987). Because review of the respondent’s claim would require consideration of facts outside the record, we decline to address this claim further.

The respondent has brought forth no persuasive reason to warrant a departure from our holding in Sutton v. Lopes, supra.

Accordingly, we affirm the judgments.

In this opinion the other justices concurred.

       General Statutes § 18-98d provides in pertinent part: “(a) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1,1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. . . .
      “(b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing a good conduct reduction under this subsection.”

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

       On June 6,1986, petitioner Green was resenteneed to tMrty-three years imprisonment by the Sentence Review Division of the Superior Court.

       General Statutes (Rev. to 1977) § 18-97 provides in pertinent part: “Any person receiving a fine or a sentence to a correctional institution or a community correctional center shall receive credit towards any portion of such fine as is not remitted or any portion of such sentence as to which execution is not suspended for any days spent in custody under a mittimus as a result of any court proceeding for the offense or acts for which such fine or sentence is imposed, provided he shall conform to the rules of the institution.”

       “[General Statutes §] 18-98d differs from its predecessors [General Statutes §§ 18-97 and 18-98] in that it merged § 18-97, which dealt with the presentence confinement of those held under a mittimus, and § 18-98, which dealt with the presentence confinement of those unable to obtain bail. Further, § 18-98d added the provision that ‘each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement.’ ” Payton v. Albert, 209 Conn. 23, 30, 547 A.2d 1 (1988).