author: CALLAHAN, C. J.

text:
    JORGE VELEZ v. COMMISSIONER OF CORRECTION
    (SC 16095)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.
    Argued May 25
    officially released August 31, 1999

      Todd A. Edgington, assistant public defender, for the appellant (petitioner).

      Steven R. Strom, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Lynn D. Wittenbrink and Gregory DAuria, assistant attorneys general, for the appellee (respondent).
   Opinion

CALLAHAN, C. J.

The dispositive issue in this appeal is whether General Statutes § 18-l00d renders General Statutes §§ 18-7, 18-7a (c), 18-98a, 18-98b and 18-98d (b) (good time statutes) inapplicable to persons sentenced to terms of imprisonment for crimes committed on or after October 1, 1994. We conclude that the good time statutes are not applicable to such persons.

The material facts are not in dispute. On November 30, 1994, the petitioner, Jorge Velez, committed a robbery in violation of General Statutes § 53a-135. He was convicted and, on July 21, 1995, he was sentenced to an effective term of imprisonment of eight years, with execution suspended after three years, and a three year period of probation. The commissioner of correction (commissioner), interpreting § 18-100d as making the petitioner ineligible for any reduction in his sentence for good conduct, calculated December 17, 1997, as the petitioner’s release date. This calculation did not credit the petitioner for prison good time pursuant to § 18-7a (c), presentence jail good time pursuant to § 18-98d (b), or seven day workweek good time pursuant to § 18-98a. If all the foregoing good time credit had been applied to the petitioner’s sentence, his release date would have been in April, 1997.

On August 28,1997, the petitioner, while still incarcerated, filed this petition for a writ of habeas corpus alleging that he had a statutory right to good time and that he had been confined beyond his lawful release date. The trial court concluded that, pursuant to § 18-lOOd, the petitioner was not entitled to good time credits and dismissed his petition. Upon the granting of certification, the petitioner appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We affirm the judgment of the trial court dismissing the petition.

We begin by noting that the interpretation of § 18-lOOd is a matter of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Shawhan v. Langley, 249 Conn. 339, 343, 732 A.2d 170 (1999); General Motors Corp. v. Dohmann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).

Before we address the petitioner’s claim regarding the effect of § 18-100d upon the availability of good time pursuant to §§ 18-7a (c), 18-98d (b) and 18-98a, we will undertake a general overview of the statutory scheme governing the release of prisoners. Prior to the enactment of § 18-100d in 1993; see Public Acts 1993, No. 93-219 (P.A. 93-219); the release of prisoners before the completion of their court-imposed sentences was governed in pertinent part by three statutory entitlements. First, the good time statutes set forth formulae by which incarcerated persons could earn a commutation of their court-imposed sentences. Seno v. Commissioner of Correction, 219 Conn. 269, 270 n.1, 593 A.2d 111 (1991); Laden v. Warden, 169 Conn. 540, 541, 363 A.2d 1063 (1975). In other words, the good time statutes provided a means by which an inmate could earn a reduction of his or her court-imposed sentence, thereby advancing the date on which he or she no longer would be subject to the authority of the department of correction (department) or, if he or she had been granted parole, the authority of the board of parole (board).

Second, with respect to persons sentenced to a definite term of imprisonment of one year or less, General Statutes (Rev. to 1993) § 18-100c provided that upon completion of one half of their court-imposed sentences, less any good time credit they may have earned pursuant to the good time statutes, such persons were eligible for placement in a community correctional program such as a halfway house (community placement). Thus, General Statutes (Rev. to 1993) § 18-100c authorized the commissioner to include the good time that an inmate had earned pursuant to the good time statutes in the calculation of the inmate’s community placement eligibility date. Prisoners released from incarceration and granted community placement pursuant to General Statutes (Rev. to 1993) § 18-100c remained under the authority of the commissioner. See General Statutes (Rev. to 1993) § 18-100 (e).

Third, with respect to persons sentenced to a definite term of imprisonment exceeding one year, General Statutes (Rev. to 1993) § 54-125a provided that upon completion of one half of their court-imposed sentences, persons sentenced to more than one year were eligible for parole. General Statutes (Rev. to 1993) § 54-125a, the statute governing parole, did not authorize the commissioner to include good time in the calculation of an inmate’s parole eligibility date. Further, General Statutes (Rev. to 1993) § 54-125a provided that parolees were subject to the authority of the board, which at that time was part of the department.

To summarize, prior to the enactment of P.A. 93-219: (1) pursuant to § 18-100c, inmates sentenced to a term of imprisonment of one year or less were eligible for community placement, and the commissioner was authorized to include good time in the calculation of an inmate’s community placement eligibility date; (2) pursuant to § 54-125a, inmates sentenced to a term of imprisonment exceeding one year were eligible for parole upon completion of one half of their court-imposed sentences; and (3) pursuant to the good time statutes, all inmates, regardless of the length of their sentences, were eligible to earn good time, which operated to commute a portion of their court-imposed sentences.

In enacting P.A. 93-219, the legislature effected three relevant changes to the statutory scheme governing the release of prisoners. First, § 6 of P.A. 93-219 transferred from the department to an independent board of parole the supervision of all persons released from the custody of the department, other than those granted community placement pursuant to § 18-100c. See General Statutes § 54-124c.

Second, §§ 1 and 2 of P.A. 93-219 amended §§ 18-100c and 54-125a, respectively, to increase, from one to two years, the sentence one could receive, and still be eligible for placement in a community correctional program. As amended, § 18-100c provides for community placement of prisoners sentenced to a term of imprisonment of two years or less, and § 54-125a provides for parole of prisoners sentenced to a term of imprisonment exceeding two years.

Third, § 10 of P.A. 93-219 created a new statute codified as § 18-100d, the statute principally at issue in this appeal. Section § 18-100d provides: “Notwithstanding any other provision of the general statutes, any person convicted of a crime committed on or after October 1, 1994, shall be subject to supervision by personnel of the Department of Correction or the Board of Parole until the expiration of the maximum term or terms for which he was sentenced." (Emphasis added.) By its terms, § 18-100d requires that a person convicted of a crime committed on or after October 1, 1994, remain under the authority of either the department or the board for the entire length of his or her court-imposed sentence. Thus, the language of § 18-100d manifests an intention that such persons be either incarcerated (i.e., under the authority of the department), placed in a community correctional program (i.e., under the authority of the department) or on parole (i.e., under the authority of the board) during the entire term of their court-imposed sentences.

Moreover, the phrase “[n]otwithstanding any other provision of the general statutes(emphasis added); in § 18-100d unequivocally indicates that the legislature intended that the statutory requirement that persons convicted of crimes committed on or after October 1, 1994, remain under the authority of the department or the board for the entire length of the court-imposed sentences, would override any statutory provisions to the contrary. By its terms, therefore, § 18-100d indicates that the legislature intended that the good time statutes — statutes that operate to release inmates and persons granted community placement from the authority of the department and to release parolees from the authority of the board after completion of only a portion of their court-imposed sentences — no longer be applicable to persons convicted of crimes committed on or after October 1, 1994.

The legislative history of House Bill No. 6934, the bill that eventually was enacted as P.A. 93-219, and codified in part as § 18-100d, also indicates that the legislature intended that § 18-100d render the good time statutes inapplicable to persons convicted of crimes committed on or after October 1, 1994. During the discussion of the bill on the floor of the House of Representatives, Representative Michael P. Lawlor, a sponsor of the bill, stated: “[This bill] requires parole supervision for parolees for the entire term of the sentence that had been imposed by the court. Under current law, parolees come off parole supervision at the time they max out on their sentence, which in most cases, is two-thirds of the original sentence that was imposed.’’’ (Emphasis added.) 36 H.R. Proc., Pt. 22, 1993 Sess., pp. 7645-46. Representative Lawlor’s statement, a clear reference to good time, is compelling evidence that the legislature intended that an inmate’s court-imposed sentence remain in effect, and that persons convicted of crimes committed on or after October 1, 1994, no longer be able to “max out” their sentences pursuant to the good time statutes.

In November, 1994, moreover, in response to an inquiry by the commissioner regarding the effect of § 18-100d on the applicability of the good time statutes to persons convicted of crimes committed on or after October 1, 1994, the office of the attorney general rendered an opinion stating: “[Section 18-100d] has the effect of eliminating the impact that good time credits heretofore have had in reducing length of sentence and accelerating discharge. . . . [T]he maximum terms of sentences imposed for crimes committed on or after October 1,1994, are not reducible by good time credits. For such crimes, the entire sentence must be served under the supervision of the Department of Correction or the Board of Parole.” Opinions, Conn. Atty. Gen. No. 94-031 (November 23, 1994). “ ‘Although an opinion of the attorney general is not binding on a court, it is entitled to careful consideration and is generally regarded as highly persuasive.’ ” Connecticut State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 720, 546 A.2d 830 (1988).

On the basis of the opinion rendered by the office of the attorney general, the commissioner declined to award good time to inmates incarcerated for crimes committed on or after October 1, 1994. Thereafter, in 1997, the legislature enacted legislation titled “An Act Concerning the Forfeiture of Good Time Credits.” Public Acts 1997, No. 97-169. During the discussion on the floor of the House of Representatives of House Bill No. 7058, the bill that eventually was enacted as Public Acts 1997, No. 97-169, Representative Lawlor, a 1993 sponsor of the bill that eventually was codified as § 18-100d, stated: “I’d like to point out two things. First of all, persons committing crimes after October 1, 1994, they’re no longer earning good time credits. This legislation would only apply to the 7000 or so inmates who committed their crimes prior to October 1, 1994. So there’s no more good time in Connecticut, but there are some people in the system who were sentenced at a time when there was still good time, and of course those rules stay with them.” (Emphasis added.) 40 H.R. Proc., Pt. 7,1997 Sess., p. 2433. Representative Lawlor’s remarks are clear evidence of the legislature’s awareness of, and acquiescence in, the interpretation given to § 18-100d by the attorney general and the commissioner. See State v. Grullon, 212 Conn. 195, 210, 562 A.2d 481 (1989) (considering legislative history of subsequent enactment in determining legislative intent of prior legislation); see also State v. McVeigh, 224 Conn. 593, 621, 620 A.2d 133 (1993) (considering subsequent enactment in determining legislative intent of prior legislation); In re Valerie D., 223 Conn. 492, 542, 613 A.2d 748 (1992) (same). Again, that interpretation is that § 18-100d rendered the good time statutes inapplicable to persons convicted of crimes committed on or after October 1, 1994.

The petitioner nonetheless claims that § 18-100d was not intended to make the good time statutes inapplicable to persons incarcerated for crimes committed on or after October 1, 1994. In the petitioner’s view, § 18-100d was intended, instead, to alter the manner in which the good time statutes operate with respect to such persons by replacing sentence commutations with an automatic system of parole when a prisoner has served his sentence less good time earned. Specifically, the petitioner contends that the legislature intended that: (1) persons sentenced to imprisonment for crimes committed after October 1,1994 continue to earn good time pursuant to the good time statutes; (2) despite language of the good time statutes stating that good time operates to reduce court-imposed sentences, good time no longer would reduce court-imposed sentences; (3) if, after serving one half of their court-imposed sentences, such prisoners are granted parole by the board pursuant to § 54-125a, any earned good time would provide them with no benefit; but (4) if, after serving one half of their court-imposed sentences, such prisoners are denied parole by the parole board, their earned good time would provide them with automatic parole on the dates that, but for the enactment of § 18-100d, would have been their release dates under the good time statutes. This automatic parole would require no action or exercise of discretion by the board. To support his proposed construction of § 18-100d, the petitioner primarily relies on: (1) the legislature’s use of the word “supervision” in § 18-100d; (2) claimed inconsistencies between the commissioner’s interpretation of § 18-100d and other statutory provisions; and (3) references to good time made in a report issued by the legislative program review and investigations committee.

We first address the petitioner’s argument regarding the language of § 18-100d. Section 18-100d requires that a “person convicted of a crime committed on or after October 1, 1994 ... be subject to supervision by [the commissioner] or the [board] until the expiration of the maximum term or terms for which he was sentenced.” (Emphasis added.) Distinguishing between “custody” and “supervision,” the petitioner claims that the legislature’s use of the word “supervision” in § 18-100d and its omission of the word “custody” from the statute must indicate that the legislature intended that all inmates be released at some point during their sentences from the “custody” of the commissioner (i.e., incarceration) into a program of correctional “supervision” (i.e., community placement or parole). The legislative history of § 18-100d, however, reveals that the word “supervision” in § 18-100d was intended to refer to incarceration as well as to community placement and parole. See 36 H.R. Proc., Pt. 22, 1993 Sess., p. 7646. Specifically, in the discussion on the floor of the House of Representatives of Substitute House Bill No. 6934, the bill that eventually was enacted as P.A. 93-219, and codified in part as § 18-100d, Representative Lawlor stated: “So in essence, this change will maintain people on parole for the full, in the case of a ten year sentence, for the full ten years rather than for just two or three years after their release maybe only six years of total supervision both in the facility and outside the facility and this has the obvious benefit of keeping people under supervision with the opportunity to return them immediately to prison based on a violation for the full term of the original sentence imposed.” (Emphasis added.) Id. Representative Lawlor’s statement that “supervision” may occur both inside and outside a correctional facility reveals that, in the context of § 18-100d, the term “supervision” was intended to include incarceration as well as community placement and parole.

The petitioner’s next claim is that a construction of § 18-100d as rendering the good time statutes inapplicable to persons convicted of crimes committed on or after October 1, 1994 cannot be harmonized with: (1) the provision of § 18-100c that authorizes the commissioner to include good time earned by an inmate sentenced to a term of imprisonment of two years or less in the calculation of the date on which the inmate becomes eligible for community placement; or (2) the provision of General Statutes (Rev. to 1993) § 18-87f, a statute that addressed prison overcrowding but was repealed in 1995, that authorized the commissioner, under certain emergency circumstances, to release inmates from custody early.

Contrary to the petitioner’s view, we can discern no inconsistency between § 18-100d and § 18-100c. Construing § 18-100d as making persons convicted of crimes committed on or after October 1,1994, ineligible for good time results in such persons earning no good time. Consequently, in calculating the date of their eligibility for community placement pursuant to § 18-100c, the commissioner simply would not subtract any good time from one half of their court-imposed sentences, and they would have to serve one half of their sentences before becoming eligible for the transition to community placement.

With respect to the petitioner’s claimed inconsistency between § 18-100d and General Statutes (Rev. to 1993) § 18-87f, § 18-87f provided in relevant part: “(e) In the event that [other measures taken to reduce prison overcrowding are] insufficient to reduce prisoner population ... to prisoner capacity, the commissioner shall first further reduce the parole eligibility dates of prisoners serving indeterminate or indefinite sentences by thirty days, and then further reduce the maximum sentences of prisoners serving indeterminate or indefinite sentences and the sentences of prisoners serving determinate sentences, by increments of one day, to a maximum of thirty days, until prisoner population ... is reduced to prisoner capacity. Eligible prisoners may be released on parole or to an approved community residence. ... (f) ... No prisoner shall be released from custody under this section unless he has served at least one-half of his minimum indeterminate sentence or one-half of his determinate sentence, but shall have served not less than sixty days, including [good time earned under § 18-98d], . . ."Asa matter of statutory construction, a statute such as § 18-87f, which applied only under specific, emergency conditions, is presumed to prevail over more general statutory provisions dealing with the same overall subject matter. State v. Torres, 206 Conn. 346, 359, 538 A.2d 185 (1988). Moreover, to the extent that § 18-87f, after the enactment of § 18-100d and before its repeal, authorized the commissioner to consider good time earned by an inmate in determining eligibility for early parole, it is not inconsistent with § 18-100d. Pursuant to § 18-100d, persons convicted of crimes committed on or after October 1, 1994 simply would have earned no good time to be included in the calculation of their eligibility for early parole pursuant to § 18-87f, and the commissioner could have determined their parole eligibility accordingly.

Furthermore, it is the petitioner’s proposed construction of § 18-100d that cannot be harmonized with other statutory provisions. Section 54-125a, the statute governing parole, does not provide the commissioner with any authority to include good time in the calculation of an inmate’s parole eligibility date, but rather requires the service of one half of the imposed sentence. Moreover, § 54-125a (a) explicitly provides that the determination of whether to grant parole rests with the discretion of a panel of the board and is not automatic on the accumulation of good time. In addition, General Statutes § 54-125b, which, like § 18-100d, was enacted as part of P.A. 93-219, provides that an inmate may be granted parole without a hearing before a panel of the board only if an employee of the board has reviewed the inmate’s case and recommended that parole be granted and such recommendation has been approved by at least two members ofapanel of the board. During the discussion of Substitute House Bill No. 6934 on the floor of the Senate, Senator George C. Jepsen stated: “[T]his bill . . . puts [prisoner releases] in the hands of the [board] . . . that ought to restore rationality by allowing the [board] to . . . [release prisoners] on not a random, but at least a basis that involves statutory criteria.” 36 S. Proc., Pt. 10, 1993 Sess., p. 3463. The fact that the legislature enacted §§ 18-100d and 54-125b, and amended § 54-125a, in the same act; see P.A. 93-219; is compelling evidence that the legislature did not intend § 18-100d to create an automatic version of parole, without board action, as advocated by the petitioner.

Finally, we recognize that certain examples included in a report prepared in 1993 by the legislative program review and investigations committee support the petitioner’s proposed construction of § 18-100d. In light of the language and legislative history of § 18-100d and the legislature’s awareness of, and acquiescence in, the interpretation given to § 18-100d by the commissioner and the attorney general, however, that report simply does not provide a proper basis for a conclusion that § 18-100d was intended to adopt the system of automatic parole urged by the petitioner — a system that would provide automatic parole to persons, who like the petitioner, previously have been deemed by the board to be unfit for parole and denied parole. See Iovieno v. Commissioner of Correction, 242 Conn. 689, 699-700, 699 A.2d 1003 (1997) (departure from existing statutory law must clearly be expressed); Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979) (radical departure from established statutory scheme must be expressed in unequivocal language and may not be implied).

On the basis of the language and legislative history of § 18-100d, and of the legislature’s apparent awareness of, and acquiescence in, the interpretation given to § 18-100d by the attorney general and the commissioner, we conclude that § 18-100d renders the good time statutes inapplicable to persons sentenced to a term of imprisonment for crimes committed on or after October 1,1994.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 18-100d provides: “Notwithstanding any other provision of the general statutes, any person convicted of a crime committed on or after October 1, 1994, shall be subject to supervision by personnel of the Department of Correction or the Board of Parole until the expiration of the maximum term or terms for which he was sentenced.”

       General Statutes § 18-7 provides in relevant part: “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. . .
      General Statutes § 18-7a provides in relevant part: “(c) Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may . . . while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. . .
      General Statutes § 18-98a provides in relevant part: “Each person committed to the custody of the Commissioner of Correction who is employed within the institution to which he was sentenced . . . for a period of seven consecutive days . . . may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the Commissioner of Correction.”
      General Statutes § 18-98b provides in relevant part: “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 18-7a 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. . . .”
      General Statutes § 18-98d provides in relevant part: “(a) Any person who is confined . . . for an offense committed on or after July 1, 1981 . . . 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 ....
      “(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 . . . sentence not suspended at the rate of ten days . . . 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. . . .”

       On that same date, the trial court also imposed sentences upon the petitioner for convictions of burglary, larceny, failure to appear and probation violation. The court ordered that those additional sentences, the longest of which was a three year term of imprisonment, run concurrently with the petitioner's robbery sentence. The eight year sentence imposed upon the petitioner for robbery is his controlling sentence.

       The petitioner does not claim that he was entitled to outstandingly meritorious good time pursuant to § 18-98b.

       General Statutes (Rev. to 1993) § 18-100c provides: “A person convicted of a crime who is incarcerated on or after July 1, 1993, who received a definite sentence of one year or less, and who has been confined under such sentence for not less than one-half of the sentence imposed by the court, less such time as may have been earned under the [good time statutes], may be released pursuant to subsection (e) of section 18-100 or to any other community correction program approved by the commissioner of correction.”

       General Statutes (Rev. to 1993) § 54-125a provides in relevant part: “(a) A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than one year, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the board of parole for the institution in which the person is confined, if (1) it appears from all available information, including any reports from the commissioner of correction that the panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law, and (2) such release is not incompatible with the welfare of society. . . . The parolee shall, while on parole, remain in the legal custody and control of the board until the expiration of the maximum term or terms for which he was sentenced. . . .”

       General Statutes § 54-124c provides: “Notwithstanding any provision of the general statutes, on and after July 1, 1994, the Board of Parole shall be responsible for the supervision of all persons released from confinement in a correctional institution or facility into the community, except persons released pursuant to section 18-100c, until their sentence to the custody of the Commissioner of Correction is completed.”

       Public Act 93-219, also enacted a technical amendment to § 18-100c to expand the statutory reference to the good lime statutes to include all such statutes.

       General Statutes § 18-100c provides: “A person convicted of a crime who is incarcerated on or after July 1, 1993, who received a definite sentence of two years or less, and who has been confined under such sentence for not less than one-half of the sentence imposed by the court, less such time as may have been earned under the provisions of section 18-7, 18-7a, 18-98a, 18-98b or 18-98d, may be released pursuant to subsection (e) of section 18-100 or to any other community correction program approved by the Commissioner of Correction.”

       General Statutes § 54-125a provides in relevant part: “(a) A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board of Parole for the institution in which the person is confined, if (1) it appears from all available information, including any reports from the Commissioner of Correction that the panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law, and (2) such release is not incompatible with the welfare of society. . . . The parolee shall, while on parole, remain in the legal custody and control of the board until the expiration of the maximum term or terms for which he was sentenced. ...”

       The petitioner makes no mention of the effect that § 18-100d would have on persons who are not granted community placement pursuant to § 18-100c. Presumably, in the petitioner’s view, such persons also would be eligible for automatic parole.

       See generally Legislative Program Review and Investigations Committee, Board of Parole and Parole Services (1993).

       General Statutes (Rev. to 1993) § 18-87f provided in relevant part: “(e) In the event that [other measures taken to reduce prison overcrowding are] insufficient . . . the commissioner shall first further reduce the parole eligibility dates of prisoners serving indeterminate or indefinite sentences by thirty days, and then further reduce the maximum sentences of prisoners serving indeterminate or indefinite sentences and the sentences of prisoners serving determinate sentences, by increments of one day, to a maximum of thirty days, until prisoner population ... is reduced to prisoner capacity. Eligible prisoners may be released on parole or to an approved community residence. . . .
      “(f) ... No prisoner shall be released from custody under this section unless he has served at least . . . one-half of his determinate sentence . . . including [good time earned] under sections 18-98c and 18-98d. . .

       General Statutes § 54-125b provides in relevant part: “(a) A person may be allowed to go on parole in accordance with section 54-125a without a parole hearing being conducted by a panel of the Board of Parole if (1) an employee of the Board of Parole has reviewed the inmate’s case and recommended parole be granted to such person and (2) such recommendation has been approved by at least two members of a panel of the board. A parole hearing shall be conducted by a panel of the Board of Parole if a victim, as defined in sections 54-201 and 54-226, requests such a hearing.

       See footnote 12 of this opinion.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    DEPARTMENT OF PUBLIC WORKS v. ECAP CONSTRUCTION COMPANY ET AL.
    (SC 16036)
    Borden, Norcott, Katz, Palmer and McDonald, Js.
    Argued May 26
    officially released September 7, 1999

      Laurann Asklof assistant attorney general, with whom were Lawrence Russ, assistant attorney general, and, on the brief, was Richard Blumenthal, attorney general, for the appellant (plaintiff).

      Vincent M. Simko, with whom were Daniel H. Schneider and Mary H. Trainer, legal intern, for the appellee (named defendant).
   Opinion

PALMER, J.

The dispositive issue raised by this appeal is whether, under General Statutes § 4-61, a contractor who claims that the state has breached a public works contract may compel the state to arbitrate a dispute over the state’s alleged agreement to settle the contractor’s underlying breach of contract claim. We conclude that the state may not be compelled to submit to arbitration in such circumstances and, accordingly, reverse the judgment of the trial court rejecting the state’s application for a permanent injunction prohibiting the arbitration of the alleged settlement agreement.

The following facts and procedural history are relevant to this appeal. On March 11,1994, the named defendant, ECAP Construction Company (ECAP), entered into a contract with the plaintiff, the state department of public works (department), to perform concrete work in connection with the construction of a law library at the University of Connecticut School of Law in Hartford. The contract required ECAP to provide all materials, labor, equipment and services necessary to construct the concrete portions of the building, including the foundation walls and floor slabs. During the construction of the library, a dispute arose between the department and ECAP regarding changes in work orders and schedules, delays in the work caused by the department and its general contractor, and the unpaid balance of the contract price. In late 1995, ECAP submitted an informal notice of claim to the department setting forth its alleged damages.

From December, 1995, until April, 1996, department officials and ECAP representatives met several times to discuss the dispute. ECAP alleges that, at one of these meetings, Richard Piotrowski, the department’s bureau chief of facilities design and construction, made a firm offer to settle the dispute for $425,000. ECAP also alleges that it subsequently accepted that offer. According to the department, however, PiotrowsM’s settlement offer was only a tentative one, subject to approval by the department’s commissioner and the formal approval process required under General Statutes § 3-7 (c). Such approval was never obtained, and the department notified ECAP that, in its view, there was no settlement of the dispute.

On February 18, 1997, ECAP filed a demand for arbitration before the American Arbitration Association (arbitration association), the other defendant in this case, under § 4-61, seeking $1,870,169.83 in damages for extra work and delays under the construction contract. Although the department contested ECAP’s claim, the department did not dispute the arbitrability of the claim.

On October 29, 1997, ECAP filed an amended demand for arbitration, adding allegations that the department had: (1) breached the purported agreement to settle the dispute under the contract; and (2) acted in bad faith and “in willful disregard of ECAP’s rights under the terms of the [settlement] [agreement and with reckless indifference and wanton and intentional violation of those rights . . . .” The amended demand for arbitration sought, inter alia, an additional $425,000 in damages.

The state then filed this action seeking, inter alia, a permanent injunction against ECAP and the arbitration association from proceeding with the amended demand for arbitration. At the hearing on the state’s action, the state asserted that the arbitration association lacked subject matter jurisdiction over ECAP’s amended demand. Specifically, the state maintained that ECAP’s amended demand did not fall within the limited sovereign immunity waiver of § 4-61 because the parties’ disagreement over the purported settlement did not constitute a disputed claim arising “under” the contract within the meaning of the statute.

The trial court denied the state’s application for injunctive relief. The court concluded that, because ECAP’s original disputed claims were subject to arbitration, its amended demand concerning a dispute over the alleged agreement to settle those claims also was arbitrable. In particular, the trial court rejected the state’s claim that, for purposes of § 4-61, a distinction must be made between a disputed claim arising “under” a public works contract, and a disputed claim, such as ECAP’s claim, that is “related to,” “derived from” or “based upon” the underlying contract. Accordingly, the trial court rendered judgment for the defendants.

The state appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to what is now Practice Book § 65-1, and General Statutes § 51-199 (c).

On appeal, the state argues that the trial corut improperly concluded that § 4-61 authorizes arbitration of ECAP’s claims concerning the department’s alleged breach of the settlement agreement. The state maintains that § 4-61 provides for a waiver of the state’s sovereign immunity only in narrowly defined circumstances and, furthermore, that ECAP has failed to establish that its amended demand for arbitration falls within the limited scope of that waiver. According to the state, the department’s alleged breach of the settlement agreement did not constitute a “disputed [claim] under [a public works] contract” within the meaning of § 4-61. The state claims, therefore, that the arbitration association lacks subject matter jurisdiction to arbitrate these claims. We agree with the state.

Whether the department’s alleged breach of the settlement agreement is subject to arbitration under § 4-61 is a question of statutory interpretation. “The process of statutory inteipretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Babes v. Bennett, 247 Conn. 256, 261-62, 721 A.2d 511 (1998).

“Our analysis is more specifically illuminated by the well settled principle that when the state waives sovereign immunity by statute a party attempting to sue under the legislative exception must come clearly within its provisions, because [statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed .... Where there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity. . . . The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication.” (Citations omitted; internal quotation marks omitted.) Id., 262. Thus, before bringing suit under a statutory waiver of sovereign immunity, “[a] plaintiff must prove . . . that there is a precise fit between the narrowly drawn reach of the relevant statute . . . and the contractual language upon which the plaintiff depends.” (Internal quotation marks omitted.) DeFonce Construction Corp. v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985).

Section 4-61 (a) provides that a party who has contracted with the state for certain public works contracts may bring an action against the state in the event of “disputed claims under such contract . . . .” (Emphasis added.) The legislature’s use of the word “under,” as opposed to a broader term such as “related to,” “connected with” or “derived from,” indicates an intent to authorize only those disputed claims against the state that fall directly under the contract itself. To permit an action against the state for a claim that is related to or connected with a public works contract would expand the limited waiver of immunity inherent in § 4-61 beyond the statute’s plain language. In light of our longstanding policy favoring a narrow construction of statutory provisions in derogation of the state’s immunity from suit, we will not extend the reach of § 4-61 absent a clear indication of such an intent by the legislature. We are not persuaded that the legislature intended such an expansion of § 4-61.

ECAP contends that prohibiting the arbitration of a purported agreement to settle an otherwise arbitrable dispute contravenes a central purpose of § 4-61, namely, to reduce the cost of state public works contracts by permitting contractors to sue the state for any disputes arising under the contract. See, e.g., 7 S. Proc., Pt. 3, 1957 Sess., p. 1636, remarks of Senator John H. Filer (permitting suit against state will result in better bids on state projects); Conn. Joint Standing Committee Hearings, General Law, Pt. 2,1957 Sess., p. 436, remarks of Representative Merrill S. Dreyfus (bill will save state money in long run). By permitting a contractor to seek recourse against the state for claims arising under a public works contract, the legislature clearly intended to provide the contractor with significant protection against a breach of that contract by the state. The fact that contractors have been granted such protection under § 4-61 would suggest that they are more likely to bid on state projects, which, in turn, would make it more likely that the cost to the state of such projects will be reduced. There is no reason to believe, however, that permitting a contractor to seek recourse against the state for the state’s alleged breach of an agreement to settle a dispute under the contract would have any bearing on the willingness of contractors to bid on state public works projects. It is not surprising, therefore, that there is nothing in the legislative history to suggest that, in order to effectuate the statute’s purpose, the legislature also intended to permit a claim against the state that, like the claim in this case, is related to, but does not arise under, the public works contract. Thus, we reject ECAP’s claim that the legislative history and purpose of § 4-61 support its interpretation of the statute.

ECAP also asserts that, because efforts to settle disputed claims between parties are favored, we may presume that the legislature intended that a dispute relating to a purported settlement agreement of a claim brought under § 4-61 would, itself, be deemed arbitrable. In further support of its argument, ECAP points to subsection (f) of § 4-61, which provides that claims brought by a contractor against the state may be submitted for mediation, a method of resolving disputes short of full blown litigation. Although we agree with ECAP that both § 4-61 (f) and broad public policy considerations favor pretrial resolution of disputes between contracting parties, including the state; see, e.g., Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 759, 687 A.2d 506 (1997) (recognizing legitimate public policy interest of encouraging pretrial settlement of claims); the fact is that the legislature, in enacting § 4-61, expressed a preference for a limited waiver of the state’s sovereign immunity in regard to claims arising under public works contracts. In other words, the legislature, in enacting § 4-61, has expressed its intent that a claim against the state is barred by the doctrine of sovereign immunity unless that claim arises directly under the public works contract. In such circumstances, it cannot be said that arbitration of the claim will further the public policy favoring pretrial resolution of disputes, because the claim is not one that the contractor may litigate in the first place. We, therefore, reject the construction of § 4-61 urged by ECAP.

In this case, it is undisputed that ECAP’s original demand for arbitration involved disputed claims that fell “under” the parties’ original contract and was, therefore, arbitrable pursuant to § 4-61. It is clear, however, that the parties’ purported settlement agreement, assuming that it could be proven, constitutes a separate agreement that, although related to the original contract, does not arise “under” that contract. This conclusion is bolstered by the fact that the issues to be resolved in the arbitration of ECAP’s disputed claim of a breached settlement agreement would bear little, if any, relation to the arbitration of ECAP’s disputed claim under the parties’ underlying contract. For example, arbitration of the parties’ dispute over the alleged settlement agreement would involve testimony from the participants of the negotiations concerning whether the department’s negotiators had represented that the $425,000 settlement was firm and binding, as ECAP claims, or whether the settlement offer was tentative, as the department claims. ECAP’s claim regarding the alleged settlement agreement does not fall “under” ECAP’s construction contract with the department because no provision of that contract relates, in any way, to an agreement to enter into settlement negotiations. Consequently, ECAP’s amended demand for arbitration falls outside the purview of § 4-61.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment granting the state’s application for a permanent injunction.

In this opinion the other justices concurred.

       General Statutes § 4-61 provides in relevant part: “Actions against the state on highway and public works contracts. Arbitration, (a) Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract or claims arising out of the awarding of a contract by the Commissioner of Public Works, bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined, provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract ....
      “(b) As an alternative to the procedure provided in subsection (a) of this section, any such person, firm or corporation having a claim under said subsection (a) may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity, approved by such person, firm or corporation and the agency head and (2) the provisions of subsections (b) to (e), inclusive, of this section, except that if the parties cannot agree upon a dispute resolution entity, the rules of the American Arbitration Association and the provisions of said subsections shall apply. The provisions of this subsection shall not apply to claims under a contract unless notice of each such claim and the factual bases of each claim has been given in writing to the agency head of the department administering the contract . . . .”
      Section 4-61 recently was amended to reflect the separation of the former judicial district of Hartford-New Britain into two distinct judicial districts. See Public Acts 1988, No. 88-230, § 1 (made effective September 1, 1998 by Public Acts 1995, No. 95-220, § 5). This amendment has no bearing on this appeal.

       The American Arbitration Association also is a defendant in this case.

       General Statutes § 3-7 (c) provides in relevant part: “Upon the recommendation of the Attorney General, the Governor may authorize the compromise of any disputed claim by or against the state or any department or agency thereof, and shall certify to the proper officer or department or agency of the state the amount to be received or paid under such compromise. . . .”

       The state also sought a “declaratory judgment that ECAP is precluded from asserting before the [arbitration association] its claims as stated in the [a]mended [d]emand.”

       The trial court also determined that ECAP’s claim that the department acted in bad faith was arbitrable because § 4-61 permits actions against the state for any disputed claim, including those that sound in tort. In light of our conclusion that ECAP’s amended claim against the department is barred by the doctrine of sovereign immunity, we do not address this issue.

       ECAP also claims that the trial court properly denied the state’s application for injunctive relief because the state had failed to establish that it would be irreparably harmed if the court denied its application for such relief. See, e.g., Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 416, 722 A.2d 271 (1999) (“[i]t is well established that [a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law” [internal quotation marks omitted]). ECAP’s reliance on the traditional equitable prerequisites for the granting of injunctive relief is unavailing under the circumstances of this case. Whether ECAP’s amended demand is arbitrable raises a question of subject matter jurisdiction. “[A] determination regarding a trial court’s subject matter jurisdiction is a question of law [and] our review is plenary.” (Internal quotation marks omitted.) Id., 410. Thus, although the trial court decided the case in the context of an application for iryunctive relief, equitable considerations are not relevant to our resolution of this appeal. In essence, the judgment rendered by the trial court was in the nature of a declaratory judgment, a remedy that the state also sought in its prayer for relief. See footnote 4 of this opinion.

       At oral argument, ECAP asserted, for the first time, that the alleged agreement to settle is really a “change order, ” or a negotiation of new terms, “under” the construction contract, and that the breach of this change order falls “under” the contract. Cf. 4 J. McBride & T. Touhey, Government Contracts: Cyclopedic Guide to Law, Administration, Procedure (1991) § 28.10, p. 28-1 (change order allows government to alter aspects of contract performance when in government’s best interest). We are not persuaded by this characterization of the alleged settlement agreement, and conclude, instead, that it is more in the nature of a separate contract that is related to, but wholly independent of, the original construction contract.

       We note that our interpretation of § 4-61 does not leave contractors without any remedy against the state in circumstances in which, as in this case, a contractor claims that the state has breached an agreement to settle an arbitrable dispute. Under General Statutes § 4-160, the claims commissioner may authorize an action against the state on any claim for which the state could be held liable if it were a private person. See, e.g., Kroszer v. New Haven, 212 Conn. 415, 423, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990); Doe v. Heintz, 204 Conn. 17, 35, 526 A.2d 1318 (1987).


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. NABIL KADDAH
    (SC 15637)
    Callahan, C. X, and Norcott, Katz, Palmer and McDonald, Js.
    Argued April 29
    officially released September 7, 1999

      Glenn M. Falk, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

After a jury trial, the defendant, Nabil Kaddah, was found guilty of murder in violation of General Statutes § 53a-54a, attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The trial court sentenced the defendant to a total effective sentence of seventy-five years imprisonment.

The defendant has appealed his conviction directly to this court. On appeal, he raises two claims: (1) the trial court improperly excluded expert testimony regarding his ability to read and comprehend English; and (2) the trial court improperly rejected the defendant’s supplemental request to charge regarding the affirmative defense of extreme emotional disturbance. We reject both of the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between 3 and 3:30 a.m. on August 27, 1994, the defendant, while driving his gray Pontiac Grand Prix, approached Leanne Kollar on Middle Street in Bridgeport. Kollar, who was working as a prostitute, entered the defendant’s car in anticipation of engaging in sex for money. The defendant drove around Bridgeport, eventually stopping on Salem Street. He turned off the engine and locked the doors to the vehicle. The defendant then began to choke Kollar, telling her that, if she removed her clothes, he would not hurt her. Kollar began to undress, and the defendant reclined her seat back and started to choke her again. Kollar managed to open the car door in an attempt to escape, and the defendant began hitting and punching her. They both rolled out of the car together, after which the defendant kneeled over Kollar and continued strangling her. After hitting the defendant and knocking the defendant’s eyeglasses off his face, Kollar was able to flee to a nearby house. The defendant then drove away.

When the police arrived, Kollar gave them a description of the defendant and told the officers where the defendant lived, as she had been to his apartment on prior occasions. The police went to the defendant’s apartment and waited for him to return. Meanwhile, the defendant returned to Middle Street and picked up Jennifer Williamson, another prostitute. The defendant drove to the comer of Maplewood and Laurel Avenues, where he and Williamson engaged in aphysical struggle. The defendant hit Williamson, bit her on the back and strangled her. During the stmggle, Williamson stopped moving and the defendant pushed her out of the car and drove away.

Sara Iza, a resident of Laurel Avenue, saw the defendant’s car on Maplewood Avenue at approximately 5:30 a.m. on August 27, 1994. When her husband, Luis Iza, went outside to start his car at approximately 6 a.m., he saw Williamson’s naked body lying in the street, in the same spot where Sara Iza had seen the defendant’s car stop earlier. Malka Shah of the office of the chief medical examiner testified that Williamson died from asphyxia, which had been caused by strangulation.

At his trial, the defendant raised the defenses of mental disease or defect and, alternatively, extreme emotional disturbance. The jury rejected these defenses and found the defendant guilty of the murder of Williamson and the attempted murder and unlawful restraint of Kollar.

I

On appeal, the defendant first claims that the trial court improperly excluded expert testimony from Margaret Cooney, a teacher of English as a second language at the University of Bridgeport, regarding the defendant’s ability to comprehend the English language. The defendant claims that, because his native tongue is Arabic and he is limited in his ability to understand English, Cooney’s testimony was relevant to shed light on the circumstances surrounding the statements he had given to the police.

The following additional facts are relevant to the disposition of this claim. Before the trial began, the defendant moved to suppress his statements to the police, claiming, inter alia, that he did not knowingly and intelligently waive his Miranda rights, and that his statements were not voluntary. The circumstances surrounding the defendant’s interview with the police are as follows. After the defendant returned home at approximately 5:45 a.m. on August 27, 1994, the police drove him to a local hospital, where Kollar identified him as her assailant. The police then drove the defendant to the police station and, later that day, brought him into an interview room and read him his Miranda warnings. The defendant stated that he understood his rights and signed a waiver form. During questioning about the incident involving Kollar, the defendant admitted that he had picked up a woman that morning and had tried to have sex with her, but when she mentioned that she wanted money, the defendant had told her that he does not “pay money for sex.” The defendant admitted that an altercation ensued, and that the woman had fled the vehicle. Prior to questioning the defendant about the incident involving Williamson, the detectives read the defendant his Miranda warnings again, and had asked him to sign another Miranda waiver form, which he did. The defendant then admitted that he had picked up another woman, and that they also had fought over money. The defendant stated that he had struggled with her in the car and, when she appeared to be unconscious, he removed her from the car and left her on the pavement. After giving this information to the police, the defendant agreed to go over the incidents again with a tape recorder in the room.

At the suppression hearing, Cooney testified -with respect to the defendant’s grasp of the English language. She stated that, after the defendant had been arrested, she administered a generally accepted achievement test to the defendant. The test results indicated that, while the defendant’s conversational English was good, his ability to comprehend written English was “[v]ery, very poor.” Cooney also testified that she had reviewed the notice of rights form that the defendant had signed before giving his statements to the police. She stated that, based upon the defendant’s performance on the standardized test she administered, the defendant probably had not understood many of the words included in the waiver form. Specifically, Cooney concluded that the defendant would not understand the meaning of “authorize,” “consent,” “voluntarily,” “constitutional” and “waiver.” Cooney also stated that she had reviewed the tape recording of the defendant’s interview with the police and found it significant that he had answered “yes” to every question when the police officers asked him if he understood his rights. Cooney stated that “it is very common for people of limited English abilities to answer yes to every question” that they do not understand. She concluded that the defendant “probably . . . did not understand” the waiver form that he had signed before speaking with the police.

The trial court denied the defendant’s motion to suppress his statements. The court concluded that the state had met its burden of proving that the defendant “understood [his rights] and intelligently waived them.” The court further concluded that the defendant’s statements were voluntary because there was “nothing coercive or threatening in the [officers’] conduct . . . .” The admissibility of the defendant’s statements to the police is not at issue in this appeal.

At trial, the defendant attempted to offer Cooney as a witness and the state filed a motion in limine to exclude her testimony. The defendant argued that Cooney’s testimony would demonstrate that, in making his statements to the police, the defendant merely went along with the version of events fed to him by the police, and that it would shed light on the “physical and psychological environment that yielded the [defendant’s] confession . . . .” Crane v. Kentucky, 476 U.S. 683, 689, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986).

The trial court granted the state’s motion to exclude Cooney’s testimony. Distinguishing Crane, the court concluded that Cooney’s testimony did not shed light on the physical and psychological circumstances under which the defendant made his statements to the police, but, instead, concerned the defendant’s understanding and waiver of his Miranda rights.

On appeal, the defendant argues that the trial court improperly excluded Cooney’s testimony, which was relevant under Crane. The state counters that Cooney’s testimony was not relevant to any issue before the jury. We need not resolve this issue, however, because we conclude that, even if the evidence was relevant, the court’s ruling excluding Cooney’s testimony was harmless.

In Crane, the United States Supreme Court held that the accused improperly was prohibited from presenting evidence regarding the circumstances surrounding his confession. Id. The court also stated that “the erroneous ruling of the court is subject to harmless error analysis.” Id., 691, citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). “The correct inquiry is whether, assuming that the damaging potential of the [court’s ruling] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, supra, 684.

The defendant in this case claims constitutional error based on the United States Supreme Court’s holding in Crane. We, therefore, require the state to establish any such error to be harmless beyond a reasonable doubt. E.g., State v. Webb, 238 Conn. 389, 482, 680 A.2d 147 (1996) (state bears burden of proving constitutional error was harmless beyond reasonable doubt); State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996) (same); see Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). “Whether ... an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall, supra, 475 U.S. 684.

We conclude that the state has met its burden and has demonstrated that the error, if any, of excluding Cooney’s testimony was harmless beyond a reasonable doubt. Cooney’s testimony was not important either to the defendant’s case or the state’s case. The record reveals that the defendant did not contest the fact that Kollar and Williamson were in his car with him on separate occasions that night, nor that he had had altercations with both of them. His defense consisted of testimony concerning his mental state. At trial, James Merikangas, a psychiatrist and neurologist called by the defendant, testified concerning the validity of the defendant’s statements to the police, stating that they resulted from confabulation, which is a “mental defect where [by] someone who has a poor or missing memory thinks that they have a memory and will tell you what happened when it didn’t. ... It is a false memory. It is not a lie. It is a belief the patient has which simply has no basis in fact.” Merikangas then concluded that “[the defendant] was really not aware of what was happening, and that if there were statements made later, either confabulation or things that had been told to him, that [the defendant] was not the most reliable witness at that time.”

With respect to the issue of the defendant’s mental state, there was no indication that Cooney, who was not a psychiatrist, would testify that the defendant’s statements resulted from confabulation or repetition. Cooney’s testimony that people with minimal English speaking abilities tend to answer “yes” to questions they do not understand would not have supported his defense because Cooney would have testified that the terms the defendant did not understand related to his Miranda rights. The defendant’s statements to the police, which consisted of questions and answers, contained no such terms; the questions were narrative and descriptive, and the defendant often answered “no” to those questions. Cooney’s testimony would not have been important to the issue of the defendant’s mental state because the focus of Cooney’s testimony was on an entirely different issue.

As to the evidence at trial of the defendant’s English language abilities, the jury heard testimony regarding the defendant’s ability to converse in English and listened to the tape recording of the defendant’s interview with the police. Inspector John F. Solomon of the office of the state’s attorney, who participated in the interview of the defendant, stated that, while the defendant had an accent, it “appeared evident that he understood what was being asked of him.” Lieutenant Richard Petitte of the Bridgeport police detective bureau stated that, in his conversations with the defendant regarding his statements, the defendant did not have a hard time understanding English words. To the contrary, Isam Araboghli, a Mend of the defendant, testified that the detectives had told him that they did not understand the defendant very well, and Merikangas described the defendant as “a man that doesn’t understand or speak English very well . . . .’’If Cooney had testified, she would have stated that the defendant’s oral English skills were good. Cooney’s testimony, at best, would have bolstered the testimony of Solomon and Petitte.

Moreover, the overall strength of the state’s evidence was overwhelming. See, e.g., United States v. Young, 470 U.S. 1, 20, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (error in prosecutor’s remarks harmless due to overwhelming evidence of defendant’s guilt). Bridgeport detectives testified that, when they searched the defendant’s vehicle pursuant to a warrant, they had found women’s clothing on the floor of the front passenger seat. Kollar identified some of the clothing found in the defendant’s car as her own, and she made an in-court identification of the defendant as her assailant. Williamson’s boyfriend testified that he had seen Williamson enter the defendant’s car that night, and that it was the last time he saw her alive. He also identified some of the clothing found in the defendant’s vehicle as that which Williamson had been wearing on the night of her murder. Luis Iza discovered Williamson’s body in the exact location where his wife, Sara Iza, had seen the defendant’s car. In addition, the police had found identical brown stains, which appeared to be vomit, on Williamson’s body and in the defendant’s vehicle. The autopsy revealed that there were bite marks on Williamson’s back, and a forensic odontologist testified that the structure of the defendant’s teeth was consistent with those marks.

For the foregoing reasons, we conclude that any error in excluding Cooney’s testimony was harmless.

II

The defendant’s second claim is that the trial court improperly denied his supplemental request to charge the jury that, in considering the affirmative defense of extreme emotional disturbance, the victim need not be the cause of the perpetrator’s distress.

The following additional facts are relevant to the resolution of the defendant’s second claim. At trial, the defendant adduced testimony establishing that, three months prior to the assaults, his wife had been shot in the chest during a robbery at a convenience store and she had remained hospitalized with serious injuries. He also presented evidence that, one week prior to his arrest, he had been attacked by an unknown individual and that the resulting injury required fifty-two stitches in his back. There was testimony that, on the night in question, the defendant had been drinking heavily and was very upset about the recent loss of his passport. Merikangas testified that the defendant also suffered from brain damage, hypoglycemia and epilepsy. Merikangas further testified that alcohol interferes with an epileptic’s ability to modulate behavior, and that the combination of low blood sugar and alcohol could inhibit the nervous system to the extent that a person “would not know what he was doing.” Merikangas concluded that, based upon all the stresses in his life at the time, the defendant was suffering from extreme emotional disturbance at the time of the incidents. The state then offered Karen Brody, a psychiatrist, as a rebuttal witness. Brody acknowledged the stresses in the defendant’s life, but concluded that the defendant did not act under extreme emotional disturbance. Brody also testified that she was not aware of any case in which violence caused by extreme emotional disturbance was directed toward a third person who did not cause the underlying stresses.

Defense counsel then stated in closing argument: “Well, I would submit to you the court will charge you on extreme emotional disturbance, and you can listen to the judge’s charge and find out whether or not in order to qualify for that legal concept it is necessary for the person who explodes to explode against the person who is causing the problem or against someone who happens to be there after they brood for a long time and then explode as if without any provocation.” Outside the presence of the jury, the court informed counsel that, in giving its charge on extreme emotional disturbance, it did not intend to address whether the victim must be the cause of the stress. The defendant then submitted a supplemental request to charge that provided: “In considering the defense of extreme emotional disturbance, it is not necessary that the victim(s) of the Defendant’s acts be the person who caused the emotional distress to the Defendant. The law provides that the defense is available to the Defendant even when a third party who is unconnected to the cause of the emotional disturbance, is the victim of the Defendant’s act.” The court refused to give this instruction, concluding that its intended charge was legally accurate and that the element of “reasonableness” addressed the substance of the defendant’s request.

On appeal, the defendant contends that, while the trial court’s instruction was legally correct, it misled the jury by failing to address whether extreme emotional disturbance must be caused by the victim of the crime. Because defense counsel already had told the jury that the court might provide guidance on whether the victim must be the cause of extreme emotional disturbance, the absence of any instruction on this issue was reversible error. We disagree.

“[A] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 781, 695 A.2d 525 (1997). “A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). “A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Payne, supra, 781. “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 494, 651 A.2d 247 (1994).

We conclude that the trial court’s instruction on extreme emotional disturbance did not mislead the jury or result in any injustice. The court adequately instructed the jury on the affirmative defense of extreme emotional disturbance and did not imply, in any manner, that the extreme emotional disturbance must be caused by the victim. The court instructed the jury: “It is your responsibility as the trier of fact to decide to what extent, if any, the defendant’s emotions governed his conduct at the time of the death of . . . Williamson. In reaching this decision, you may consider all of the feelings which you find in fact influenced the defendant’s conduct, for example, passion, anger, distress, grief, resentment, fright, hatred, excessive agitation, or other emotions.

“While the emotional disturbance need not necessarily have been a spontaneous or sudden occurrence or caused by any particular provoking event, indeed [it] may have simmered in the defendant’s mind for [a] long period of time, the disturbance must actually have influenced his conduct at the time of the killing.” (Emphasis added.) The court’s charge made clear that the “provoking event” need not cause a “spontaneous or sudden” emotional disturbance, and that such a disturbance “may have simmered in the defendant’s mind for [a] long period of time . . . .” The reference to an “event” as a cause and the long, simmering nature of such a disturbance suited the defendant’s evidence. It removed any possibility that the jury mistakenly would believe that the victim, rather than the circumstances, contemporaneously must have caused the defendant’s disturbance for the defense of extreme emotional disturbance to apply. Furthermore, Brody’s testimony that she never had seen a case in which the victim did not cause the disturbance was merely testimony and not an instruction as to the law. The trial court’s charge, as given, adequately instructed the jury on the affirmative defense of extreme emotional disturbance. Thus, there was no need for the trial court to include the language in the defendant’s supplemental request in its charge to the jury.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       General Statues § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       General Statutes § 53a-13 (a) provides: “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”

       General Statutes § 53a-54a (a) provides in relevant part: “[I]t shall be an affirmative defense [to the crime of murder] that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       In the tape-recorded interview, Inspector John F. Solomon of the state’s attorney’s office questioned the defendant regarding his rights as follows:
      “[Q.] . . . We filled some forms out and advised you of your rights. Do you understand that?
      “[A.] Yeah.
      “[Q.] And did you understand all your rights when we advised you of them? Did you understand those rights?
      “[A.] Yeah, I understand them.
      “[Q.] Okay. I’m going to read them to you again, okay? And you signed both these forms that I show you here?
      “[A.] Yeah.
      “[Q.] Okay. Lieutenant [Richard] Petitte [of the Bridgeport police detective bureau] advised you of them. I just want to read them again to you. It says here, I have been advised and know that I have a right to remain silent. Do you know that and understand that? Okay. It says I have been advised and know that anything I say can be used against me in a court of law. Do you understand that? Can you respond by answering?

        “[A.] Yes.
      “[Q-] Okay. I’ve been advised and know that I have a right to an attorney and know that the attorney can be with me while being questioned. Do you understand that?
      “[A.] Yes.
      “[Q.] I’ve been advised and know that if I cannot afford an attorney, one can be appointed for me and I may have him with me before answering any questions. Do you understand that?
      “[A.] Yes.
      “[Q.] Okay. I’ve been advised and know that if I refuse to answer questions or I may stop answering questions at any time if I so desire. Do you understand that? Any time you want to stop talking, you just say so.
      “[A.] Yes.”

       The court did not require an offer of proof from Cooney; instead, as agreed by the parties, the court used her testimony from the suppression hearing to determine whether she could testily at trial.

       In his concurring opinion in Van Arsdall, Justice White observed that a ruling within the trial court’s wide latitude concerning a marginally relevant issue becomes a constitutional violation only if the outcome of the trial would have been different. Delaware v. Van Arsdall, supra, 475 U.S. 685-86 (White, J., concurring).

       We note that the defendant has not raised a separate claim under the state constitution. We, therefore, limit our analysis to the federal constitutional provisions. E.g., State v. Beltran, 246 Conn. 268, 277 n.7, 717 A.2d 168 (1998).

       As the many conflicting court decisions resulting from Miranda reveal, learned judges have struggled with the terms used in Miranda warnings and have arrived at conflicting interpretations. Cf. State v. Anonymous, 240 Conn. 708, 721 n.15, 694 A.2d 766 (1997).

       In excerpts of the tape-recorded interview, Inspector John F. Solomon of the state’s attorney’s office questioned the defendant concerning the incidents as follows:
      “[Q.] Can you go on and tell me like you did before what happened last night with the first girl?
      “[A.] Uh, I found her, I don’t know where. The first one.
      “[Q.] Okay.
      “[A.] Uh, I was driving and I asked her to come with me in the car and she came into the car. I asked her for sex.
      “[Q.] For sex?
      “[A.] Yeah.
      “[Q-] Okay.
      “[A.] Uh, she said okay and she took her clothes off. When I tried to start to do something with her she asked me about money and I told you, I don’t

        pay money for sex.
      “[Q.] You don’t pay money?
      “[A.] For sex? No.
      “[Q.] Okay.
      “[A.] We fight together and she left the car.
      “[Q-] Okay.
      “[A.] I tried to keep her in the car, but I couldn’t. She left.
      “[Q.] You said you tried to keep her in the car? Was that by fighting with her?
      “[A.] What?
      “[Q-] Was that by fighting with her? You told me something before—
      “[A.] No. I pull her. I was talking with her, but she left because she saw I don’t pay anything.
      “[Q.] You don’t pay any money?
      “[A.] No.
      “[Q.] Okay. And the — when she got out of the car, how was she? Was she dressed or undressed?
      “[A.] No. Undressed.
      “[Q.] She was undressed? And where were her clothes when she got out of the car?
      “[A.] She left it in my car.
      * * *
      “[Q.] Did you punch her at all?
      “[A.] I don’t remember because she start to fight with me. I don’t remember if I punch her or hit her. I don’t remember.
      “[Q.] Did you at any time try to choke her? Do you remember doing that?
      “[A.] No.
      “[Q.] When she got out of your car, what did you do?
      “[A.] I start my car and I left.
      “[Q.] You started your car and you left. And do you remember where this occurred, where she got out of your car? Can you remember at all?
      “[A] No.
      “[Q.] The area? You don’t have any idea where it was?
      “[A] I don’t remember the area.
      “[Q.] Can you describe that girl for me, a description of her?
      “[A.] I can’t. I’m not sure. I don’t know.
      * * *
      “[Q.] Can I ask you now, when you leave from there and you left and her clothes were still in your car, where did you go next?
      “[A] I was driving anywhere. I don’t know.
      “[Q.] What time? Give me a time frame. Do you remember what time this was when this incident happened with the girl, approximately?
      “[A.] Maybe three o’clock.
      “[Q.] About three ... in the morning?
      “[A.] Yeah.

        “[Q.] And what do you recall happened next? Where did you go?
      “[A.] I was driving. I don’t know where I did go. I just know I was driving. Uh, I feel, I was feel tired and I want to sleep, but I don’t know how I went to downtown and I saw the other one.
      “[Q.] You saw the other girl that we talked about earlier?
      “[A.] Yes.
      * * *
      “[Q.] What happened then? What happened with this girl? I mean, did you pick her up or what happened?
      “[A.] Yes. She came in my car.
      “[Q.] She got into your car?
      “[A.] Yeah.
      “[Q ] Okay.
      “[A.] And we start to talk, before she took her clothes off, and then, I don’t know. I was driving. I stopped. I parked my car; I don’t know where. And we moved to the backseat with her. She took off her clothes. I don’t know. I tried to kiss her or something. Also, she asked me about money and I told her the same thing. I don’t, I, I don’t pay money for sex. Maybe I told her. I don’t know exactly, but because I know I don’t pay money for sex. I tried to make sex with her. She doesn’t want. Then, I don’t know how she hit me in my eyes and this moment I feel pain in my eyes. I don’t remember. I, I hit her and she bite me.
      * * *
      “[Q.] Okay. And then what happened?
      “[A.] I start to hit her, punch her. I don’t know. I don’t remember exactly until I saw her, is no — she doesn’t move. When I saw her, you know, I feel scared. She doesn’t move, she doesn’t talk. So what I can do. I pull her outside the car and I put her in the street.
      “[Q.] Was she clothed or unclothed at this time? Did she have her clothes off or on?
      “[A.] Off.
      “[Q.] Her clothes were off?
      “[A.] Yes.
      “[Q.] Do you remember something else that you told me you did to her before? What did you do to her besides punch and hit her?
      “[A.] I don’t know. Maybe you help me. What did I say?
      “[Q.] You had said before you had done something to her and you pointed to a location on her body where you had done this. You had indicated that you had bitten her. Do you remember saying that?
      “[A.] Yah, yah, yah, yah.
      “[Q.] Okay. Where did you bite her?
      “[A.] In her back.
      “[Q.] In her back? What part of the back did you bite her on?
      “[A.] On the side.
      “[Q.] Well, you pointed before. Can you point right now to myself as I turn my back?
      “[A.] I think here, in this area.
      “[Q.] You’re pointing toward my right side on the back, close to my shoulder, below my shoulder. Is that where?
      “[A.] Yes.
      “[Q.] Is that where you recall biting this young lady?
      “[A.] Yeah.
      ”[Q.] And do you remember how many times you bit her?
      “[A.] I told you, maybe one time, maybe more. I don’t remember.
      “[Q.] But you definitely — you’re certain that you bit her, though?
      “[A.] Yeah.
      “[Q.] And then you said you took her from the backseat and you took her out of the car. And just how did you take her out of the car? Do you remember?
      “[A.] What?
      “[Q.] How did you get her out of the car?
      “[A.] I pull her.
      “[Q.] You pulled her out?
      “[A.] Yeah.
      “[Q.] And you left her on where? The pavement? I mean, do you know if it was the sidewalk or the road, or grass?
      “[A.] I don’t remember, but I think in the side, on the side of the street.
      “[Q.] On the side of the street?
      “[A.] Yeah.
      “[Q.] Okay. Now let me ask you. Do you know, when you left her there, whether she was alive or not? Was she dead or alive? Do you know that, or w'as she unconscious?
      "[A.] I don’t know.
      “[Q.] You have no idea?
      “[A.] No.
      ' ‘ [Q. ] Did she move or anything afteryouputheronthere?Wasshe moving?
      “[A.] After I put her in the street?
      “[Q.] Yes.
      “[A.] I don’t know, because I, I took my car and I left.
      “[Q.] You just drove away?
      ‘■[A.] Yes.”

       The court concluded its instructions on extreme emotional disturbance as follows: “Extreme emotional disturbance is composed of the following three elements. It must have been proven ... by the defendant by a fair preponderance of the evidence ... (1) that... at the time the defendant intentionally caused the death of . . . Williamson, he acted under the influence of an emotional disturbance; (2) that such emotional disturbance was extreme; and (3) that under all the circumstances as the defendant believed them to be there was a reasonable explanation or excuse for such extreme emotional disturbance influencing his conduct. . . .
      “While tire emotional disturbance need not necessarily have been a spontaneous or sudden occurrence or caused by any particular provoking event, indeed [it] may have simmered in the defendant’s mind for [a] long period of time, the disturbance must actually have influenced his conduct at the time of the killing.”

       Moreover, the defendant did not file his request to charge concerning the defense of extreme emotional disturbance in a timely manner. The defendant’s supplemental request to charge was submitted only after closing arguments. According to Practice Book § 42-17, “[wjritten requests to charge the jury must be filed . . . before the beginning of the arguments or at such earlier time during the trial as the judicial authority directs . . . .”