text:
    Unisys Corporation v. Department of Labor et al.
    (14330)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued October 2
    decision released December 31, 1991

      William J. Egan, with whom, on the brief, was Thomas R. Legenhausen, for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Thomas Yasensky, assistant attorney general, with whom, on the brief, was Susan I. Hellerman, assistant attorney general, for the appellees (named defendant et al.)

      J. Charles Mokriski, with whom was Antonio B. Braz, for the appellee (defendant International Business Machines Corporation).
   Berdon, J.

The principal issue in this case is whether the plaintiff, Unisys Corporation, is entitled to an evidentiary hearing to determine whether it has standing to enjoin the state from awarding a purchase contract. The plaintiff appeals from the trial court’s decision granting the defendants’ motion to dismiss. We reverse and remand for further proceedings.

The relevant facts are as follows. The defendant department of administrative services, on behalf of the named defendant, the department of labor (collectively hereinafter referred to as the state), issued two requests for proposals (RFPs) for the purchase of computer equipment, software and services. The plaintiff alleges in its complaint that the RFPs were not based upon competitive bidding as required by General Statutes § 4a-57 and that it was prevented from submitting a bid because the RFPs requested “single source” specifications—that is, the RFPs’ specifications were limited to the make, model number and particular equipment and software available only from International Business Machines Corporation (IBM), which was also made a party defendant in this action. The plaintiff further alleges in its complaint that it manufactures and supplies computer equipment and software equivalent to that of IBM, that it currently supplies the state with computer equipment and software, that the RFPs do “not permit proposals based upon equivalent computer equipment or software made by other manufacturers” and, therefore, that it did not submit a bid. The plaintiff also alleges that the state engaged in acts of favoritism to IBM that undermined the object and integrity of the competitive bidding process. Specifically, the plaintiff alleges that the state drafted the RFPs in reliance on information it received from IBM so that it would favor IBM over other vendors. Further, the plaintiff alleges that the state provided information to IBM that was relevant to the RFPs, but that information was not provided to other vendors who received the RFPs.

On the basis of these allegations, the plaintiff sought injunctive relief to prevent the state from either opening and examining proposals submitted in response to the RFPs or entering into a contract based on the RFPs. The plaintiff also requested “further relief as is just and proper.”

The trial court, O’Neill, J., granted the defendants’ motion to dismiss the complaint on the grounds that the plaintiff was not aggrieved in a contested case and had “never [been] in a contested case,” and that the plaintiff had not exhausted its administrative remedies under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. In essence, the trial court found that the plaintiff lacked standing because it had not submitted a bid pursuant to the RFPs. The trial court also found that there were no facts to support “favoritism” as alleged in the second count of the complaint. The trial court did not address the taxpayer’s standing issue raised by the plaintiff, or the state’s claim of sovereign immunity. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023. We conclude that the plaintiff should have been given an evidentiary hearing to afford it the opportunity to prove that it does have standing. Accordingly, we reverse the judgment of dismissal and remand the case for further proceedings.

It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. “ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’ ” Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983), quoting Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966). “Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a ‘personal stake in the outcome of the controversy’; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975) . . . provides the requisite assurance of ‘concrete adverseness’ and diligent advocacy.” (Citations omitted in part.) Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981).

The plaintiff maintains that, in this case, it has sufficiently alleged standing in its pleadings on one of two grounds, either as a potential competitor aggrieved by irregularities in the bidding process, or as a taxpayer. It seeks the opportunity to establish such standing at an evidentiary hearing. We agree that such a hearing should be held.

The plaintiff’s standing as a competitor injured by the bidding process flows from our holding in Ardmare Construction Co. v. Freedman, supra, 503, where we held that the decision to reject a bid or to award a contract is not a contested case under the Uniform Administrative Procedure Act and, therefore, does not permit a challenge to the state’s decision by way of an administrative appeal. Nevertheless, we went on to reaffirm our holding in Spiniello Construction Co. v. Manchester, 189 Conn. 539, 544, 456 A.2d 1199 (1983), that the “[cjourts will intervene . . . where fraud, corruption or favoritism has influenced the conduct of the bidding officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of [the] . . . officials.” Ardmare Construction Co. v. Freedman, supra, 504-505.

Although in Spinielb Construction Co. the plaintiff who sought the injunction was a bidder, in Ardmare Construction Co. we did not tailor the remedy solely to that class of persons. Indeed, we quoted with approval from Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970), the following: “ ‘[T]he public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a “private attorney general.” ’ ” (Emphasis added.) Ardmare Construction Co. v. Freedman, supra, 504. In Ardmare Construction Co., we pointed out that the scope of our holding in Spinielb Construction Co. was “to strike the proper balance between fulfilling the purposes of the competitive bidding statutes and preventing frequent litigation that might result in extensive delay in the commencement and completion of government projects to the detriment of the public.” Ardmare Construction Co. v. Freedman, supra, 505. In the present case, if the plaintiff establishes that it would have submitted a bid if not for the single source specifications, its status would, for purposes of standing, be the equivalent of one who had submitted a bid. See Gerzof v. Sweeney, 16 N.Y.2d 206, 211 N.E.2d 826, 264 N.Y.S.2d 376 (1965); 10 E. McQuillin, Municipal Corporations (3d Ed. Rev. 1990) § 29.49.

The plaintiff also claims it has standing because it is a taxpayer. See Ardmare Construction Co. v. Freedman, supra, 505 n.12; Austin v. Housing Authority, 143 Conn. 338, 122 A.2d 399 (1956). The plaintiff, however, merely alleges in its complaint and in the affidavit of Robens that it is a federal and state taxpayer, but fails to allege in what manner it is harmed as a taxpayer. “A taxpayer is not entitled to an injunction restraining such illegal conduct as the plaintiff claims unless he has suffered a pecuniary or other direct loss in that capacity.” Cassidy v. Waterbury, 130 Conn. 237, 245, 33 A.2d 142 (1943). Therefore, we do not reach this issue of whether it could have standing as a federal or state taxpayer.

Accordingly, we conclude that the plaintiff in this case would have standing if it is able to prove that it would have submitted a bid on the RFPs but for the single source specifications, that its equipment and software is equivalent to that specified in the RFPs and that the restrictions of the single source specifications undermined the object and integrity of the competitive bidding process, or that there was proof of favoritism.

With respect to this issue of standing—that is bidder injury—questions of fact were raised and the trial court should have allowed an evidentiary hearing. “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. The trial court erred in not holding such a hearing.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

We further note that although the governing statute in this state does not specifically permit single source specifications, it does provide that contracts for purchase “be based, when possible, on competitive bids.” General Statutes § 4a-57. Under § 4a-57, RFPs are not necessarily illegal merely because the specifications of the RFPs can be met by only one vendor. As the New York Court of Appeals pointed out in Gerzof, “[m]ore must appear in order to render the specifications and the contract based thereon illegal . . . since a particular product, that is, one marketed by only one manufacturer, may be required in the public interest. However, an objectionable and invalidating element is introduced when specifications are drawn to the advantage of one manufacturer not for any reason in the public interest but, rather, to insure the award of the contract to that particular manufacturer.” (Citations omitted.) Gerzof v. Sweeney, supra, 211. In this case, the plaintiff alleges that it manufactures and supplies computer equipment and software equivalent to those specified in the RFPs and that the RFPs were written in a manner to favor IBM over other vendors.

The defendants raise two additional claims pertaining to the jurisdiction of the court. First, the state claims that this court lacks jurisdiction because the appeal is now moot. It argues that “[tjhere has been agreement [between the state and IBM] as to all contracts under which work has been commenced and over one-half of the $5,000,000.00 plus program involving RFP’s . . . has been expended already.” The state further argues that because the work has commenced, the injunctive relief that the plaintiff seeks cannot be granted. It relies, for this mootness claim, upon Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 40 L. Ed. 293 (1895). We have quoted Mills with approval as follows: “ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect .... It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court ... to grant [the plaintiff] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.’ ” Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 497-98, 522 A.2d 264 (1987).

The state’s argument, however, ignores General Statutes § 4a-65, which provides in pertinent part: “When any state agency purchases or contracts for any supplies, materials, equipment or contractual services contrary to the provisions of this chapter or the regulations promulgated in pursuance thereof, such order or contract shall be void and of no effect.” If the plaintiff’s claims in this action are sustained, any contract or other agreement with IBM will be null and void. The plaintiff’s claims are not moot.

Second, the defendants raise the shield of sovereign immunity. This claim has no merit. Although suits against an officer or a department of the state, as in the present case, are in effect against the state; Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981); sovereign immunity does not bar suits against officials of the state who act in excess of their statutory authority, as the plaintiff alleges herein. Savage v. Aronson, 214 Conn. 256, 264, 571 A.2d 696 (1990).

The judgment is reversed and the case is remanded for an evidentiary hearing on the defendants’ motion to dismiss.

In this opinion the other justices concurred.

       The plaintiff alleges in its complaint that the two RFPs issued specified the following: RFP 105 sought bids for “the purchase of certain computer equipment, software, system support services and other services described as: ‘the purchase of an IBM 9121-320, related peripherals and software; system support to convert/modify/install GUIDE (Public Domain Software) using DB/2 as the data base platform; system support within the implementation of FARS; system support to convert UNISYS application onto the IBM platform; and other related services.’ ” RFP 110 sought “proposals for some of the services included in RFP 105 in connection with the purchase on installation of IBM equipment and software pursuant to RFP 105.”

       General Statutes § 4a-57 (a) provides in pertinent part: “All purchases of, and contracts for, supplies, materials, equipment and contractual services, except gas, water and electric light and power services, and purchases and contracts made pursuant to the provisions of subsection (c) of this section shall be based, when possible, on competitive bids.”

       In conjunction with this action, on November 29, 1990, the plaintiff obtained an ex parte temporary order from the court, Maloney, J., restraining the state from entering into a contract or purchase based upon the RFPs. The court issued an order directing the defendants to appear on December 10,1990, to show cause why a temporary injunction should not issue. On December 7, 1990, the state filed both an objection to the temporary injunction and the motion to dismiss, claiming the plaintiff lacked standing to bring the action. IBM orally joined in this motion. The state also argued that the plaintiffs suit was barred by the doctrine of sovereign immunity. The court, O ’Neill, J., continued the hearing on the temporary injunction to December 18,1990; it also ordered that the temporary restraining order be continued until that date and stated that it would consider the motion to dismiss during the interim. On December 18,1990, the trial court granted the motion to dismiss on the ground that the plaintiff lacked standing, and denied the plaintiff’s request for an evidentiary hearing to prove its allegations of standing. Accordingly, the plaintiff, for the purposes of this appeal, relies on the allegations of its complaint and the affidavit of Joseph M. Robens, its branch manager, which was submitted in support of its request for injunctive relief and in opposition to the motion to dismiss.

       Robens’ affidavit stated in part that the plaintiff “would submit a proposal in response to RFP 105 and RFP 110 but for the fact that RFP 105 specifies IBM equipment only, by make and model number, and does not permit functionally equivalent products, or even specify what functions are required.”

       See footnote 2, supra.

       Although the prayer for relief seeks to enjoin the state from opening and examining bids and entering into a contract pursuant to the RFPs, it also seeks “such other and further relief as is just and proper . . .’’under which appropriate relief can be given.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    State of Connecticut v. Robert K. Jeffrey
    (13904)
    Shea, Callahan, Covello, Borden and Berdon, Js.

      Argued October 3
    decision released December 31, 1991

      Richard Emanuel, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial the defendant, Robert K. Jeffrey, was convicted of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and kidnapping in the first degree in violation of General Statutes § 53a-9 (a) (2) (A).2 He was subsequently sentenced to an effective term of twelve years imprisonment, suspended after eight years followed by four years probation. He appeals from that judgment, claiming that the trial court improperly: (1) admitted into evidence a urine stained shirt worn by the complainant on the night of the incident; (2) admitted into evidence a “sex crimes report” prepared by the police; (3) admitted into evidence a certain prior consistent statement made by a witness for the state; (4) failed to instruct the jury on the defendant’s reasonable belief that the complainant had consented; (5) defined a reasonable doubt as a doubt that a juror could explain to the other jurors; and (6) admitted evidence of the defendant’s postarrest silence. We affirm the judgment.

The jury reasonably could have found the following facts. On October 12,1988, the defendant and the complainant, previously strangers to each other, met at a bar in Wallingford where the complainant was a regular patron. The defendant introduced himself as “Bob” and mentioned that he owned a nightclub in Old Saybrook. They spent several hours eating, drinking, playing pool and otherwise socializing with each other and others in the bar until approximately midnight, when a group of people, including the complainant and the defendant, decided to go to a nearby nightclub for “last call.” The defendant offered the complainant a ride and she accepted. After they had entered the car, the defendant started toward the nightclub, but, when the car reached a certain intersection, he drove straight ahead into a local park instead of turning down the street that would have brought them to the nightclub. He drove to the end of a parking lot in the park and proceeded onto a grassy area where he parked the car. When the complainant asked why they had come to the park, the defendant replied that it was better there and attempted to kiss her. When the complainant refused and tried to push him away, the defendant lifted her shirt and bit her breasts. Next, the defendant exposed his penis, asked the complainant to perform oral sex and, when she refused, forced her to do so. He then pulled the complainant’s pants down and inserted his finger into her vagina. Shortly thereafter, they got out of the defendant’s car, and the complainant attempted to run away. Once the defendant had caught up with her, he grabbed her breasts from behind, swore at her, forced her pants down again and slapped her on the buttocks, repeating his curse. He proceeded to remove the complainant’s pants and sneakers and then penetrated her anus with his finger. He then attempted anal intercourse with the complainant. Next, the defendant urinated on the complainant’s stomach and lower abdomen, rubbing the urine around her vaginal area and then inserting his fingers into her mouth. He then forced her to have vaginal intercourse with him until he withdrew and ejaculated into her mouth. After another act of forced vaginal intercourse, during which the defendant repeatedly bit the complainant’s breasts, he urinated on her once again and then got off of her and smoked a cigarette. After these events, the defendant drove the complainant back to the bar where they had met. He dropped her off, and the two returned to their respective homes.

Several days later, at the behest of a friend to whom she had confided the story, the complainant reported the incident to the police. The next day the police arrested the defendant after the complainant had positively identified him by choosing his picture from a photo array.

The jury heard contrary testimony from the defendant, who admitted having engaged in various sexual acts with the complainant, but claimed that he had done so with the complainant’s consent. According to the defendant, sometime between 11 p.m. and midnight, after socializing with the complainant and others for most of the evening, he left the bar alone, but the complainant followed him outside. They kissed for a short while, and then he asked the complainant if she wanted to get into his car. She agreed, and they entered the car and began to kiss more passionately. The complainant stated that they should not persist right in front of the bar, prompting the defendant’s suggestion that they go elsewhere. He then drove to the park and stopped the car in a certain secluded area, which the complainant said was all right. They left the car and engaged in consensual sexual intercourse. Afterwards, they drove back to the bar but, once there, decided to return to the park to resume their sexual activity. They again had intercourse and also engaged in oral sex. The defendant stated that, at a certain point, he did interrupt the sexual activity in order to urinate, but that, when he did so, he purposely turned away from the complainant, so as not to urinate on her or toward her. Presumably, the jury disbelieved the defendant’s version of the facts because it convicted him of both sexual assault and kidnapping.

I

The defendant’s first claim on appeal is that the trial court abused its discretion when it admitted into evidence the urine stained shirt worn by the complainant on the night the alleged sexual assault was committed. Our review of the record satisfies us that the admission of the urine stained shirt was a proper exercise of the trial court’s discretion.

Some background information is necessary. The shirt was initially marked for identification during the direct testimony of the complainant, who testified that it was the shirt she was wearing on the night of the incident and, that it had been clean before she put it on that night. The shirt had remained on her throughout the sexual assault, although it had been pushed up at times. According to the complainant, she arrived home after the sexual assault, took off her clothes, including the shirt, and put them on her bedroom floor. The next day she washed other clothing she had been wearing that night, but did not wash the shirt at any time before she handed it over to the police on October 17, 1988. On cross-examination, she stated that, during the time period involved, she owned three pets, one dog and two cats.

A hearing was then held, outside the presence of the jury, in which the court heard the testimony of Debra Messina, a criminologist at the state police forensic laboratory, who stated that she had tested a stain on the shirt and found only one substance, creatinine, a chemical found in human and animal urine. The defendant advanced several objections to the admission of the shirt into evidence, but the court overruled them, stating that any weaknesses in the evidence went to its weight and not to its admissibility. Thereafter, Messina repeated her testimony before the jury, adding that creatinine is contained in no other substance but urine. The shirt was admitted into evidence as a full exhibit over the defendant’s objection.

The defendant contends that the shirt should have been excluded as irrelevant because the state had failed to establish an adequate link between the urine stain and the defendant. He also argues that the shirt should have been excluded because the state had failed to establish that the shirt had not been materially altered or tampered with in any way during the time it lay on the complainant’s bedroom floor until the police seized it several days later. Finally, the defendant maintains that even if the shirt was relevant evidence, the trial court abused its discretion when it admitted it into evidence because its prejudicial effect outweighed any probative value it might have had. We address these claims seriatim.

A

In considering the defendant’s first argument, we begin by noting that relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). Evidence is irrelevant if there is “such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in proof of the latter.” State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). In this case, the complainant testified that the defendant had urinated on her during the alleged sexual assault. Evidence of a urine stain on the shirt she was wearing would tend to support the conclusion that the defendant had done so. Messina testified that creatinine, a substance found only in the urine of human beings and animals, was detected on the complainant’s shirt. Even though the defendant concedes that the stain contained urine, he argues that the shirt should have been excluded as irrelevant because Messina’s testimony did not exclude the possibility that the source of the urine was one of the complainant’s pets while the shirt lay on her bedroom floor rather than the defendant in the course of a sexual assault. He cites our decision in State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), in support of his argument.

In Moody, we reversed the defendant’s murder conviction because we concluded that the trial court had abused its discretion when it admitted into evidence the result of a “presumptive test for blood” performed on a stain located on the defendant’s shoe. Although an expert had testified that the stain had produced a positive test result, and he had explained that this meant only that “the stain could be human blood, animal blood or something other than blood,” we held that “[t]he test result did nothing toward establishing the likelihood of the presence of human blood on the sole of the defendant’s shoe.” (Emphasis added.) Id., 628. We contrast the circumstances in Moody, where it could not be determined whether the stain on the defendant’s shoe contained blood, with those in this case, where the stain on the complainant’s shirt tested positive for creatinine, a substance that conclusively established the presence of urine. The uncontroverted evidence of urine, not just something that might or might not have been urine, distinguishes this case from Moody and leads us to conclude that the shirt and test results were properly admitted into evidence.

It is true that evidence of urine on the complainant’s shirt does not, in and of itself, amount to proof that the defendant caused the stain, nor does it rule out other plausible explanations for its presence. These challenges to the evidence do not require its exclusion, however, because “evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion, even to a slight degree.” State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991). It was not necessary that the urine stained shirt prove conclusively the truth of the complainant’s testimony in order to be admissible; that it tended to support her testimony to some degree made it relevant and properly admissible.

B

With respect to the defendant’s claim of material alteration of the shirt, “[t]here is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article . . . has been tampered with . . . ” State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). In each case the trial court must satisfy itself that the evidence offered probably has not been changed in important respects. State v. Conroy, 194 Conn. 623, 625-26, 484 A.2d 448 (1984); State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984). The complainant’s unrebutted testimony that the shirt was clean before the alleged crimes and that, afterwards, it lay on her bedroom floor undisturbed for several days until the police seized it, provided sufficient proof for the trial court to satisfy itself that the condition of the shirt probably had not been changed in any important respect since the events in question. In light of the complainant’s testimony, arguments about the possibility of tampering, unsubstantiated by any affirmative proof, were properly advanced to undermine the weight attributable to the evidence, but not to preclude its admissibility.

C

We reject the defendant’s final challenge to the admission of the urine stained shirt because we con-elude that the trial court properly determined that its probative value outweighed its prejudicial effect. While it is true that this tangible evidence, introduced shortly after the complainant’s direct testimony, had the capacity to strengthen the state’s case by bolstering the credibility of the complainant, it is also significant that the defendant admitted having urinated at the scene of the alleged sexual assault. He also acknowledged during closing argument that the stain on the complainant’s shirt might have contained his urine, not because he had urinated on her, but because, during the course of their consensual sexual activity, she might have inadvertently rolled onto the place where he had urinated. Given the defendant’s testimony and argument in this regard, we fail to perceive how he could have been unfairly prejudiced by the admission of the evidence in question. Even if the jury had concluded that the stain on the complainant’s shirt contained the defendant’s urine, it was free to believe the defendant’s explanation that it was the result of an accident and not the result of an indignity inflicted upon the complainant during a sexual assault. The urine stained shirt could have corroborated the testimony of either the complainant or the defendant; it was the jury’s credibility determination that cast the evidence in a particular light, not the mere presence of urine on the shirt. Accordingly, we conclude that the shirt had probative value and that its admission into evidence was not unduly prejudicial to the defendant and was, consequently, a proper exercise of the trial court’s discretion.

II

The defendant’s next claim is that the trial court improperly admitted into evidence a “sex crimes report” prepared by Detective Patricia Miranda, the lead investigating officer in the case, after she had interviewed the complainant about the alleged crimes. A sex crimes report is a four page form used by the police to compile data concerning sex crimes as required by General Statutes § 29-7a. It contains spaces for the officer to fill in general information about the victim and the offender, such as their names, addresses and ages. It also contains a checklist of 573 standardized phrases referring to different aspects of sex crimes from which the officer selects those applicable to a particular case. The sex crimes report in this case was admitted into evidence during the direct testimony of Miranda after her statement that, following her interview of the complainant, she had prepared the report in the regular course of business in accordance with her statutory duty to do so. The trial court overruled the defendant’s objection that the report was irrelevant and noted the defendant’s exception to the ruling.

On appeal the defendant maintains that the sex crimes report should have been excluded “primarily on hearsay but also on relevancy grounds.” Although the relevancy claim was distinctly raised in the trial court, the defendant acknowledges that no hearsay objection was ever made. He therefore seeks “plain error” review of the hearsay claim pursuant to Practice Book § 4185. We find the relevancy claim unavailing and decline to consider the hearsay claim because we conclude that the trial court’s admission of the report was not plain error.

A

In arguing that the sex crimes report should have been excluded by the trial court as irrelevant, the defendant properly notes that there are two components to relevant evidence: materiality and probative value. C. McCormick, Evidence (3d Ed. 1984) § 185, p. 541. He contends that, although the sex crimes report was material to the issues presented in the prosecution, it lacked probative value and was thus irrelevant. We do not agree that the report lacked probative value.

The probative value of evidence is its tendency to establish the proposition that it is offered to prove. State v. McClendon, supra; C. McCormick, supra. Miranda’s notations on the sex crimes report clearly tended to establish the proposition that the defendant had kidnapped and sexually assaulted the complainant. Because the sex crimes report essentially catalogued the complainant’s account to Miranda of what had transpired, it was probative of the defendant’s guilt. That this information was admitted into evidence in the form of standardized phrases may have raised questions about whether it was inadmissible hearsay or cumulative of the complainant’s direct testimony, but it could not have stripped the document of its relevancy.

We also reject the argument that the report lacked probative value because it was primarily a mechanism for the compilation of statistical data about sex crimes rather than a document prepared specifically for substantive use in the criminal prosecution. Bills, receipts, records and many other forms of documentary evidence have been routinely admitted into evidence despite the fact that they were not created with courtroom use in mind. See, e.g., Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938) (hospital records); Carangelo v. Nutmeg Farm, Inc., 115 Conn. 457, 162 A. 4 (1932) (medical bills); Garland v. Gaines, 73 Conn. 662, 49 A. 19 (1901) (letters). In fact, reports prepared specifically for litigation have at times come under attack because such documents present an opportunity for an interested party to falsify or embellish facts to serve his or her own interests. See C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 11.14.7, p. 392. We have stated that the “trustworthiness of such documents [business records] comes from their being used for business and not for litigation.” (Emphasis added.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388-89, 461 A.2d 422 (1983). Consequently, we see no merit to the contrary claim that the sex crimes report in this case should have been excluded as irrelevant because it had not been prepared for litigation.

B

The defendant’s claim, raised for the first time on appeal, that the sex crimes report should have been excluded as inadmissible hearsay does not warrant review under the plain error doctrine. “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). We need not consider whether the evidence would have been admissible under the constancy of accusation or the business records exceptions to the hearsay rule. To a great extent the sex crimes report was cumulative of the testimony of Miranda concerning her interview with the complainant. It is unlikely, therefore, that its impact was critical to the outcome of the trial. Accordingly, we decline to find that the trial court’s ruling was plain error.

Ill

The defendant’s next claim involves the trial court’s admission of certain statements made by D, a rebuttal witness for the state, to the defendant’s parents and to his attorney. D, a friend of the defendant, was a bookkeeper at the nightclub in Old Saybrook that the defendant managed. Her testimony contradicted the defendant’s testimony in several key respects.

According to the defendant, D slept at his apartment occasionally, but never lived there. D testified that she slept in his apartment once a week until his roommate moved out in October, 1988. At that time she moved into the apartment and remained there until June, 1989.

With respect to the incidents surrounding the alleged commission of the crimes, both D and the defendant testified that, on the night in question, the defendant was driving D’s car, which he had borrowed earlier that day. Both stated that the defendant had arrived home early the next morning and returned the car to her. D further testified that, when he had brought her car back, he appeared frightened and nervous and that she had never seen him look like that before.

The defendant testified that he went to work at the nightclub as usual on the three days following his encounter with the complainant. He stated that, on the third day, when police arrived at his home to place him under arrest, he had come home from work briefly to take a nap and had asked D to come to his apartment to awaken him so that he could return to work to close the nightclub for the evening. D testified, however, that the defendant did not work on any of those days, that he looked pale and ill, and that he stayed home, complaining of chest pains. She further stated that she had gone to the apartment the night the defendant was arrested not because she had agreed to awaken him, but because she was concerned about his health.

The defendant cross-examined D by trying to establish that she was a jilted lover whom he had left in April, 1989. On redirect examination, the state sought to elicit the fact that, before April, 1989, when the jilting supposedly occurred, D had made similar statements to the defendant’s parents and to his trial attorney about the defendant’s strange behavior during the period following the alleged crimes. Defense counsel objected on the ground that the state was impermissibly offering extrinsic evidence to rehabilitate the witness. He expressed concern about how he, as the defendant’s lawyer, could effectively and ethically rebut D’s testimony about what she had said to him. The trial court overruled the objections because it concluded that the defendant had opened the door to such questioning by attempting to impeach D in the manner that he did. Thereafter, D testified before the jury that in February or March, 1989, she had voiced her concerns to the defendant’s parents and to his trial attorney about the defendant’s peculiar conduct during the days following the commission of the alleged crimes. The defendant again objected and took exception to the court’s ruling.

On appeal the defendant makes three challenges to the admission into evidence of D’s statements to defense counsel and to the defendant’s parents. First, he maintains that the trial court’s admission of the statements was improper because the court failed to make a specific finding that the statements were made before D’s alleged bias, interest or motive arose. Second, the defendant claims error in the trial court’s failure to instruct the jury to limit its use of the statements to rehabilitating D’s credibility. Third, the defendant contends that the court’s admission of D’s prior statement to defense counsel unfairly prejudiced him in that it presented inordinate tactical and ethical difficulties for defense counsel to surmount in order to rebut D’s testimony. We find none of these arguments persuasive.

A

With respect to the first argument, we begin by noting that if a witness has been impeached on the basis of bias, motive or interest, prior consistent statements may be admitted to rehabilitate his damaged credibility, if the proponent of the prior consistent statement establishes that it was made before the alleged bias, motive or interest arose. State v. Dolphin, 178 Conn. 564, 570-71, 424 A.2d 266 (1979). This means that it was incumbent upon the state in this case, as the proponent of the evidence of D’s prior consistent statements, to demonstrate to the court’s satisfaction that these statements were made before her motive to falsify would have arisen; that is, before the defendant was said to have jilted her. We conclude that the state met this burden.

On cross-examination, the defendant elicited from D that the defendant had “moved out ... on [her]” in April, 1989. Although never explicitly stated, the clear implication of this line of questioning was that the defendant had spurned D when he left the apartment they shared in April, 1989, and that her bias against him had arisen at that time. See footnote 8, supra. D testified that her statements to the defendant’s parents and to defense counsel about the defendant’s odd behavior were made in February or March, 1989. The appropriate sequence was thus established, justifying the admission of the prior consistent statements for the limited purpose of rehabilitating D, whose credibility had been attacked on the basis of bias or motive.

It is of no moment that the trial court failed to make a specific finding that the statements in dispute were made before the alleged bias or motive arose because the record positively establishes this sequence. No such finding is required so long as the record establishes the necessary sequence of events. See State v. Parris, 219 Conn. 283, 287-92, 592 A.2d 943 (1991). In this case the record establishes the necessary sequence of events.

B

The defendant next contends that it was improper for the trial court to fail to instruct the jury that it could consider D’s prior consistent statements solely for the purpose of assessing her credibility and not for the purpose of determining the substantive truth of the statements. The defendant’s failure to request such a limiting instruction or to take exception to the charge, on this basis, makes this claim unreviewable. Practice Book § 852. We also decline to afford plain error review to this claim, as sought by the defendant, because the trial court’s failure to give a limiting instruction did not constitute “error ... so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, supra; Practice Book § 4185.

C

The defendant further argues that, even if the court properly admitted D’s prior consistent statement to his parents, it abused its discretion when it allowed her to testify about her prior consistent statement to defense counsel. He claims that the court’s admission of the statement “put counsel in an untenable and unfair position, one fraught with ethical and tactical difficulties.” We conclude that the trial court acted properly in admitting the statement.

As discussed earlier, D’s statement to defense counsel was relevant evidence that came within the prior consistent statement exception to the hearsay rule. As such, it was properly admitted regardless of whether it posed strategic or ethical dilemmas for defense counsel. Defense counsel knew what D had said to him and knew that the state had listed her as a possible witness. If he was concerned that his client would be prejudiced if D’s statement to him were admitted into evidence, he could have either avoided altogether the line of cross-examination that he pursued, to ensure that the hearsay statement would not be admitted into evidence, or, if he was determined to attack D’s credibility in the manner that he did, he could have made a motion in limine to ascertain whether the court would allow D’s statement to him into evidence. We note that defense counsel’s failure to take either of these measures contributed to placing him in what he now deems an impossible situation. We decline to find error in a proper evidentiary ruling merely because defense counsel’s strategy might have been upset by it.

We hasten to add that we are not convinced that defense counsel’s ethical quandary was as desperate as he now portrays it to have been. The only reason he might have appeared as a witness in the case was for the purpose of rebutting D’s testimony that she had spoken to him of the defendant’s peculiar behavior around the time the alleged crimes were committed. Defense counsel represented to the court that his response to D’s testimony would have been, not that she had not made such a statement to him months earlier, but that he had not believed her when she made the statement. Testimony about whether defense counsel believed D’s statement to be true would have been properly excluded as immaterial since her prior consistent statement was offered for the limited purpose of rehabilitating her credibility and not to prove its substantive truth. Consequently, such testimony by defense counsel would have confirmed, not rebutted, D’s testimony that she had made the statement to him. Under these circumstances, an ethical question about defense counsel’s appearance as a witness in the case was not likely to have arisen.

IV

Next the defendant claims that his state and federal constitutional rights to present a defense and to due process of law were violated when the trial court failed to instruct the jury that it could not convict the defendant of sexual assault if the conduct of the complainant under all the circumstances would have justified a reasonable belief that she had consented. Because the defendant failed to request such an instruction or to take exception to the court’s failure to include it in the charge given, he can prevail on his unpreserved claims of constitutional error only if the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the first two conditions are met, the third condition is not because the trial court’s failure to give the “reasonable belief” instruction did not deprive the defendant of any constitutional right.

Our conclusion that no constitutional violation occurred in this case is founded upon our decision in State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989). In Smith, we rejected the defendant’s claim that a specific intent to have intercourse without the consent of the victim is an essential element of first degree sexual assault. We adhered to our long held view, shared by a majority of courts in this country, that first degree sexual assault, as defined in our state penal code, requires proof of only a general intent to perform the physical acts that constitute the crime. We noted, however, in language relied upon by the defendant in this case, that whether the defendant had forced or compelled the complainant within the meaning of the first degree sexual assault statute depended not upon the complainant’s subjective state of mind about whether she had consented, but upon “her manifestations of such consent as reasonably construed.” Id., 140. We further stated that, although we doubted that “jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent . . . a defendant . . . concerned about such a possibility . . . would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.” Id., 141.

The defendant urges us to convert that language in Smith into a constitutional requirement that a court give such an instruction, even in the absence of a proper request to charge, whenever any sort of consent defense is interposed in a sexual assault case. We need not decide that question, however, because the defendant in this case never advanced a theory of defense that put into issue the reasonableness of his belief that the complainant had consented. Nowhere in the record of this case, either in evidence or argument, was any suggestion made to the jury that it should acquit the defendant because he reasonably interpreted ambiguous conduct by the complainant to indicate her consent. The theory of defense actually argued to the jury was that it should acquit the defendant because the complainant had fabricated all her testimony about being forced against her will to engage in sexual acts. Because the issue of the reasonableness of the defendant’s belief regarding the complainant’s consent was never made a theory of defense in this case, we conclude that it would have been inappropriate for the trial court to instruct the jury on that theory, at least in the absence of a proper request on such an alternate ground of defense.

V

The defendant also contends that he was deprived of his state and federal constitutional right to due process of law when the trial court instructed the jury that a reasonable doubt is “a doubt for which if necessary you can give an explanation of to your fellow jurors in the jury deliberation room . . . .” He took no exception to the charge given. We recently rejected an identical claim in State v. Ireland, 218 Conn. 447, 457, 590 A.2d 106 (1991), because we concluded that such an articulation requirement, although improper, did not render an otherwise adequate instruction on reasonable doubt constitutionally defective. Upon review of the entire charge in this case, we arrive at the same conclusion, that the instruction given did not violate the defendant’s constitutional right to due process, and, therefore, reject this claim. See State v. Golding, supra.

YI

The defendant’s final challenge to his conviction is that the trial court’s admission of evidence of his post-arrest silence violated his state and federal constitutional privilege against self-incrimination and his right to due process of law. We conclude that no such violations occurred.

During the state’s cross-examination of the defendant, he was questioned about what had transpired when the police arrived at his home, before they placed him under arrest. He testified that the police had informed him that they were investigating an incident that had occurred in Wallingford and that he had told them he would cooperate with them. He stated that he had admitted being in the Wallingford bar on the night in question and, when asked what he had done after he left the bar that night, he had responded that he went right home.

The state’s attorney then attempted to impeach the defendant’s credibility by reminding him that he had testified on direct that he had had a consensual sexual encounter with the complainant when he left the bar and had not gone directly home. The state’s attorney then asked, “Because you didn’t tell any of this to the police officers, did you?” to which the defendant responded, “No, I did not.” The state’s attorney then began to ask another question, “You never told the police officers at any time that this was—,” but was interrupted by defense counsel’s objection to the question. The trial court sustained the objection on grounds of relevancy and the prohibition announced in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), against the use of postarrest silence to impeach a criminal defendant’s credibility.

On appeal, the defendant maintains that the first question should also have been excluded as an impermissible use of the defendant’s postarrest silence. Although he acknowledges that it is not clear from the question whether the state’s attorney was referring to the defendant’s silence before or after he was arrested, he contends that the question reasonably could have been understood by the jury to encompass the defendant’s postarrest silence. We agree that the question was ambiguous but believe that, given the context in which it was asked, it is more probable that it would have been understood to refer to the defendant’s prearrest silence. The state’s line of inquiry leading up to this question concerned the defendant’s conduct when the police arrived at his home before they placed him under arrest. We conclude, therefore, that the defendant cannot prevail on this unpreserved claim of constitutional error because he has failed to demonstrate that the alleged constitutional violation clearly existed. State v. Golding, supra.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.”

       General Statutes § 53a-92 (a) (2) (A) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and when . . . he restrains the person abducted with intent to . . . inflict physical injury upon him or violate or abuse him sexually.”

       In both instances the defendant said, “You like this, Bitch.”

       The stain on the shoe was too small for administration of a definitive blood test. State v. Moody, 214 Conn. 616, 628, 573 A.2d 716 (1990).

       General Statutes § 29-7a provides: “The community relations unit of the division of state police within the department of public safety shall study and plan for the establishment and funding of a sex crimes analysis unit which shall be operative on or before October 1, 1976. Said unit shall be responsible for (1) the coordination and analysis of all data regarding complaints and arrests for sex crimes; (2) the development of recommendations from such data concerning the nature, extent and pattern of sex crimes in the state; (3) recommendations with regard to new approaches in law enforcement to improve enforcement in the area of sex crimes to the division of state police, local departments and the public; (4) working with local police departments and rape crisis centers to improve law enforcement of sex crimes and methods of data gathering and (5) the development of education courses for law enforcement officials, judicial personnel and the public concerning preventive measures against sexual assaults, procedures for reporting sex crimes and community resources which are available to combat sex crimes. Each local police department, rape crisis center and any member of the public who deals with data concerning sex crimes shall submit such data to the sex crimes analysis unit in accordance with procedures established by said unit.”

       Some of the categories included are: physical descriptions of the offender; the offender’s method of approaching the victim; the nature of the assault; the victim’s method of resistance; the relationship of the offender to the victim; the place where the assault was committed; and the nature of the victim’s injuries.

       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.”

       The following are relevant portions of the defendant’s cross-examination of D:
      “[Defense Counsel]: And you were in love with Mr. Jeffrey, weren’t you?
      “[D]: No, I was not.
      “[Defense Counsel]: Didn’t you call Mr. Jeffrey’s father and mother down in Florida and tell them you were in love with Robert Jeffrey and that you would always be in love with him?
      “[D]: I care about him as a friend. I love him as a friend.
      “[Defense Counsel]: But you didn’t say that to Mr. and Mrs. Jeffrey. You said you loved him, didn’t you?
      “[D]: It could be taken that way, I suppose, but that’s—I loved him as a friend. •
      “[Defense Counsel]: And he didn’t love you back, did he?
      “[D]: I don’t know.
      “[Defense Counsel]: And he moved out of the apartment on you, didn’t he?
      “[D]: He moved out—
      “[Defense Counsel]: In June?
      “[D]: No. He moved out, I believe it was April. He was there off and on.
      “[Defense Counsel]: I have no further questions, your Honor.”

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       Defense counsel asked the court, “Can I get up in—I mean, in final examination do I get to say, ‘I didn’t believe her?’ ”

       Even if defense counsel could have provided relevant testimony as a witness in the case, disqualification of him might not have been required under the third exception listed in Rule 3.7 of the Rules of Professional Conduct. Rule 3.7 provides in pertinent part: “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client.” (Emphasis added.)

       That was precisely the theory of defense in Smith, wherein the defendant based this defense on the complainant’s testimony that, after a certain point, she ceased resisting and decided to “give in” and to act as if she were “going to go along with him and enjoy it.” State v. Smith, 210 Conn. 132, 137, 554 A.2d 713 (1989).


author: Peters, C. J. Covello, J., Berdon, J.,

text:
    Mary A. Jones v. Mansfield Training School
    (14298)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.

      Argued November 6, 1991
    decision released January 7, 1992

      Robert M. Fitzgerald, for the appellant (plaintiff).

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   Peters, C. J.

The dispositive issue in this administrative appeal is whether injured state employees may elect to calculate their benefits in accordance with the traditional workers’ compensation benefits established by General Statutes § 31-307 rather than by the special duty benefits established by General Statutes § 5-142 (a). A workers’ compensation commissioner determined that the plaintiff, Mary A. Jones (claimant), had suffered a compensable work related injury in the course of her state duty that would have entitled her to receive her full salary under § 5-142 (a). Because an alternate calculation of her benefits for her temporary total incapacity in accordance with § 31-307 would allow her a substantially higher compensation rate, the commissioner held that she could recover this larger amount. On appeal by the defendant, Mansfield Training School (state), the compensation review division concluded, to the contrary, that the remedy provided by § 5-142 (a) was exclusive and precluded the recovery of any other workers’ compensation benefits. The claimant appealed to the Appellate Court, and we transferred her appeal to this court in accordance with Practice Book § 4023. We reverse.

The facts were stipulated. As a result of an attack by one of the residents of the Mansfield Training School, the claimant, an employee of the school, sustained an injury to her right knee and left thumb that left her temporarily totally incapacitated. If calculated in accordance with § 5-142 (a), her weekly compensation rate would be $310.15, because that was her full weekly salary at the time of her injury. If calculated in accordance with § 31-307, her weekly compensation rate would be $462.86, because she had performed substantial overtime work increasing her average weekly earnings to $694.26 during the twenty-six weeks prior to her injury.

The claimant appeals from the determination of the compensation review division limiting her compensation benefit to that established by § 5-142 (a). Her principal argument is that she has a statutory right to elect benefits pursuant to § 31-307. Alternatively, she contends that her § 5-142 (a) benefits should be construed to include overtime income. Because we accept the first of these arguments, we do not reach the second one.

As the compensation review division noted in its opinion, our legislature enacted the predecessor statute to § 5-142 (a) in 1939 in order to provide enhanced benefits by way of disability compensation for employees injured while engaged in special state service. The class of employees eligible for these benefits is those who “in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence.” Lucarelli v. State, 16 Conn. App. 65, 69, 546 A.2d 940 (1988). If injured under the circumstances prescribed in the statute, this class of state employees is entitled to disability compensation based upon the employee’s full salary, rather than upon a percentage of his or her weekly earnings, the normal workers’ compensation standard. Ordinarily, therefore, the remedy provided by § 5-142 (a) will be advantageous to the injured employee. The legislature, in its various reenactments of General Statutes (Sup. 1939) § 78e, has steadfastly manifested its intention to make these benefits a generous source of compensation for its designated beneficiaries.

The issue before us is whether the legislature intended to make the special benefit conferred by § 5-142 (a) the exclusive remedy for an injured worker even in the unusual situation in which an alternate calculation of workers’ compensation benefits would provide greater financial relief. “In order to ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).” Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 1 (1990). In implementing the purpose of the statute, “[w]e must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable. State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988); State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985).” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991); Fairfield Plumbing & Heating Supply Corporation v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991).

The state points to three statutory provisions as indicative of a legislative intent to require injured employees to look to § 5-142 (a) in lieu of all other possible workers’ compensation benefits. Section 5-142 (a) itself states that a covered employee who has become totally incapacitated “shall continue to receive the full salary which he was receiving at the time of injury . . . .” (Emphasis added.) The subsection also states: “All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee . . . .’’(Emphasis added.) Finally, General Statutes (Rev. to 1991) § 5-143 states: “Each state employee who sustains an injury arising out of and in the course of his employment, except as provided in section 5-142, shall be paid compensation in accordance with the provisions of the workers’ compensation act. . . .” (Emphasis added.)

We are not persuaded that the legislature’s use of the word “shall” demonstrates that the salary benefit provided by § 5-142 (a) precludes an injured worker from recourse to another workers’ compensation remedy. “[I]n the interpretation of statutes the word ‘shall’ may have a meaning that is directory rather than mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply. Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969). Fidelity Trust Co. v. BVD Associates, supra, 278.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 480-81, 595 A.2d 819 (1991); see also Beccia v. Waterbury, 185 Conn. 445, 460-61, 441 A.2d 131 (1981). The essence of § 5-142 (a) is to provide the enhanced benefit of a full salary to a state employee who has been injured within its purview. Without more, the legislature should not be deemed to have made that right exclusive.

The state buttresses its argument for exclusivity by pointing to the legislature’s express preservation, for injured § 5-142 (a) state employees, of only those “other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal . . . .” This proviso fails, however, to define what the legislature deems “inconsistent.” The possibility that access to “specific indemnities” may afford further relief to injured state employees; see General Statutes § 31-308 (b); suggests that the legislature recognized that payment of a salary might not make an injured employee whole. In light of that recognition, we are not persuaded that the legislature, in assigning priority to § 5-142 (a) entitlements, manifested its intent to preclude an employee from recourse to § 31-307.

The same ambiguity inheres in the clause in § 5-143 entitling injured state employees to workers’ compensation benefits “except as provided in section 5-142.” Because this statute’s predecessor was enacted conjointly with the predecessor of § 5-142; see General Statutes (Sup. 1939) §§ 79e and 78e; and hence relates to the same area of the law, the two statutes necessarily must be interpreted as a unitary whole. “We are obligated ... to read statutes together when they relate to the same subject matter. Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990); In re Ralph M., 211 Conn. 289, 304-305, 559 A.2d 179 (1989).” Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990); see also State v. Carroll, 97 Conn. 598, 604, 117 A. 694 (1922). The “except” clause in § 5-143 therefore provides no specific enlightenment about legislative intent other than that contained in § 5-142 (a).

What is notable about the text of both §§ 5-142 (a) and 5-143 is that the legislature has repeatedly had the opportunity expressly to designate § 5-142 (a) benefits as an exclusive remedy. It has not chosen to do so. It did not use the express language of “exclusive remedy,” which appears elsewhere in our workers’ compensation law, for example in General Statutes § 31-293a, which provides that a right to workers’ compensation benefits for an injury caused by a negligent fellow worker “shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1.” See also General Statutes §§ 33-373 (f), 38a-148 (b). It did not, in the alternative, provide that, for state workers covered by § 5-142 (a), the state would not be otherwise liable to pay benefits. A similar formulation, in General Statutes § 31-284 (a), has been uniformly construed to make workers’ compensation the exclusive remedy and thereby to insulate employers from suits for damages by their employees for job related death or injury. See Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989).

Our reluctance to infer exclusivity of remedy from the ambiguous provisions of a remedial statute finds support, furthermore, in another case in which we concluded that workers are entitled to choose between different statutory measures providing compensation for on-the-job injuries. In Bakelaar v. West Haven, 193 Conn. 59, 66-69, 475 A.2d 283 (1984), we concluded that a municipal firefighter or police officer suffering from hypertension or heart disease could elect whether to proceed under General Statutes § 7-433c, which specifically addresses such a claim for benefits, or under chapter 568, the traditional workers’ compensation law. We there rejected the contention of the defendant city that the workers’ compensation statutes furnished the exclusive remedy for injuries arising out of and in the course of employment, even if the injuries claimed were compensable under § 7-433c. We concluded that the defendant city’s contention was inconsistent with the beneficial purpose of § 7-433c to provide enhanced eligibility for benefits to firefighters and police officers, “[notwithstanding any provision of chapter 568.”

Concededly, the governing statutes in Bakelaar were clearer than they are in this case. We are nonetheless persuaded that the legislature did not intend, sub silentio, to convert the special benefits conferred by § 5-142 (a) into an obstacle to the greater recovery under § 31-307 to which the claimant would otherwise be entitled because of her long record of overtime work. We may presume that the claimant worked overtime because such overtime service enabled her to increase her take-home pay and because the state, as her employer, determined that her overtime work benefit-ted the operations of the Mansfield Training School. Having acquiesced in this arrangement, the state would require strong justification now to deprive the claimant of benefits that she has earned. We conclude that the legislature has manifested no intent to visit such an injustice on this claimant.

The judgment is reversed and the case is remanded to the compensation review division with direction to reinstate the finding and award of the compensation commissioner.

In this opinion Shea and Callahan, Js., concurred.

Covello, J.,

concurring. While I concur in the result, I am unable to agree with that portion of the majority-opinion that discusses the circumstances under which the legislature’s use of the word “shall” in a statute is considered directory, as opposed to mandatory. As written, the opinion implies that we have concluded that the word “shall” in General Statutes (Rev. to 1991) § 5-142 is directory only and is not mandatory. I do not believe this is so because the sentence in which it appears clearly relates to a matter of substance.

“In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words whether it relates to [a] matter of substance or to [a] matter of convenience.” International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). Section 5-142 is entitled: “Disability compensation.” The sentence in issue states: “He shall continue to receive the full salary which he was receiving . . . .” This is the sentence that provides the disability compensation. It is the heart or linchpin of the statute. It is “the essence of the thing to be accomplished.” International Brotherhood of Teamsters v. Shapiro, supra.

It is not necessary to conclude that “shall” is directory in this instance in order to arrive at the conclusion that the state employee has a choice of benefits between General Statutes (Rev. to 1991) § 5-142 and § 31-307. General Statutes (Rev. to 1991) § 5-143 states: “Each state employee who sustains an injury arising out of and in the course of his employment, except as provided in section 5-1J/.2, shall be paid compensation in accordance with the provisions of the workers’ compensation act [i.e., § 31-307]. . . .” (Emphasis added.) Thus, within this context, § 5-143 says two things. First, an injured state employee who otherwise qualifies is to receive § 31-307 benefits. Second, one must examine § 5-142 to see what exceptions § 5-143 is referring to when it states: “except as provided in section 5-142.”

Section 5-142 also says two relevant things. First, it states that a qualifying employee “shall continue to receive the full salary which he was receiving at the time of injury . . . .” Second, it provides: “All other provisions of the workers’ compensation law [including § 31-307,] not inconsistent herewith . . . shall be available to any such state employee . . . . ” (Emphasis added.) Thus, an injured employee has the option to receive as compensation, either full salary or any other benefits authorized by the workers’ compensation law.

Section 31-307 states that “there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury.” As long as this calculation does not result in a benefit that is less than the employee’s full salary, there is nothing in the language of § 31-307 that is inconsistent with the mandate of § 5-142 that the employee “receive the full salary which he was receiving at the time of injury.” Since the § 31-307 calculation in this instance results in a benefit that is larger than the “full salary” provided in § 5-142, the § 31-307 benefits are not inconsistent with § 5-142. Therefore, pursuant to the mandate of § 5-142 that “[a]ll other provisions of the workers’ compensation law not inconsistent herewith . . . shall be available,” I would conclude that the employee, at her option, could select § 31-307 benefits in lieu of the “full salary” provisions of § 5-142.

Berdon, J.,

dissenting. The majority, through statutory construction, grants certain state employees an election to receive for total incapacity either their “full salary” under General Statutes § 5-142 (a) or “sixty-six and two-thirds per cent of [their] average weekly earnings” under General Statutes § 31-307 of the Workers’ Compensation Act. In doing so, the majority ignores the cardinal rule of statutory construction that “[w]hen the language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction.” Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988).

Section 5-142 (a) provides in pertinent part that if certain state employees sustain an injury arising out of and in the course of specific employment and total incapacity results, the injured employee “shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled .... All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee or the dependents of such a deceased employee. . . .” (Emphasis added.) General Statutes (Rev. to 1991) § 5-143, the companion to § 5-142, provides in relevant part that “[e]ach state employee who sustains an injury arising out of and in the course of his employment, except as provided in section 5-1J+2, shall be paid compensation in accordance with the provisions of the workers’ compensation act . . . .” (Emphasis added.) Simply put, the Workers’ Compensation Act applies to all state employees, except certain designated employees identified in § 5-142 (a) who become totally incapacitated during the course of performing the specified duties of such employment. The employees covered under § 5-142 (a) continue on the payroll and receive “full salary” for five years thereby making them ineligible for weekly benefits under the Workers’ Compensation Act. There is no provision for an election, and the reading of one into the clear and unambiguous language of the statute just won’t wash.

There is no dispute that, in the present case, the claimant falls within a category of those state employees covered by § 5-142 (a). To reach its result that the claimant may elect coverage under either § 5-142 (a) or § 31-307, the majority construes the word “shall” as being “directory” and not “mandatory” in the sentence of § 5-142 that those covered state employees “shall continue to receive the full salary . . . .’’Furthermore, the majority chooses to ignore the “shalls” in that part of the statute providing that after five years, such person “shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary . . . .” This language makes clear that for those specific state employees who are covered by § 5-142 (a), the legislature established, outside the scope of the Workers’ Compensation Act, a separate, distinct and exclusive statutory scheme for the weekly compensation for total incapacity.

In the concurring opinion, it is stated that the word “shall” pertains to a matter of substance and as a result is mandatory. I agree; this time, “shall” means “shall.” The concurring opinion, however, seeks to reach the majority’s result by pointing out that § 5-142 (a) states that all other provisions of the Workers’ Compensation Act, including § 31-307, shall be available to any state employee when “not inconsistent” with § 5-142 (a). The concurring opinion claims that the statutes are not inconsistent in this case simply because the claimant will receive a larger benefit under § 31-307 than she would have received under § 5-142 (a). The simple answer is that the right to receive “full salary” as a state employee is inconsistent with the right to receive compensation based on “sixty-six and two-thirds per cent of his average weekly earnings” under the Workers’ Compensation Act. Put another way, the fact that the claimant will receive more compensation under § 31-307 in this particular case does not make the language of that statute consistent with § 5-142 (a). Matters are inconsistent if they are “ [contradictory of one another.” Ballentine’s Law Dictionary (3d Ed. 1969).

The majority further ignores the plain language of § 5-143, which provides that state employees are to be paid compensation in accordance with the provisions of the Workers’ Compensation Act “except as provided in section 5-142.” They claim that this statute is ambiguous merely because it was originally enacted “conjointly with § 5-142.” Courts cannot “torture words to import ambiguity where the ordinary meaning leaves no room for it . . . . ” Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980).

Finally, for at least two reasons, there is no basis for the majority’s conclusion that the legislature intended an election because it failed to amend § 5-142 expressly to describe it as an “exclusive remedy.” First, there has never been a prior decision, either administrative or judicial, before the present one rendered by the majority that construes the unequivocal language of § 5-142 (a) as providing for an election. The statute, on its face, clearly does not import such a construction. Second, the legislature recently adopted Public Acts 1991, No. 91-339, amending § 5-142 (a) when it already had the benefit of the compensation review division’s decision in the present case, which explicitly held there was no right to an election. It is presumed that the legislature was aware of this interpretation of § 5-142 when it amended the statute for other reasons and its failure to provide for an election was a validation of the compensation review division’s interpretation. “[T]he inference of legislative concurrence with the agency’s interpretation [is] to be drawn from legislative silence concerning that interpretation, especially where the legislature makes unrelated amendments in the same statute.” Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978); see Wilson v. Security Ins. Co., 213 Conn. 532, 539, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987).

I am mindful of the remedial purposes of the Workers’ Compensation Act and “ ‘that it should be broadly construed to accomplish its humanitarian purposes.’ ” Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988). Nevertheless, the legislature in adopting § 5-142 (a), provided state employees falling within the ambit of the statute a generous compensation package. It is reasonable to believe that the legislature did not accidentally omit language that would allow for an election between “full salary” and “average weekly earnings.” If the statute needs repairing, it is for the legislature to do and not this court. “ ‘We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained.’ . . . Nor can we engraft language not clearly intended by its enactment onto legislation.” Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988), quoting Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982).

Although this court has the final word on the interpretation of our state statutes, there is a “higher authority”—that is, the constitution of the state of Connecticut. Article second of the Connecticut constitution provides in part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” By placing a construction on this statute that is contrary to its plain and unambiguous text, the majority encroaches on that which is solely reserved to the legislative branch of our government. “In the field of legislation, the legislature is supreme. Courts must apply legislative enactments according to their plain terms.” State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956).

I would affirm the decision of the workers’ compensation review division. Accordingly, I respectfully dissent.

       General Statutes (Rev. to 1991) § 31-307 provides in relevant part: “compensation for total incapacity. If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred .... No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided such minimum payment shall not exceed eighty per cent of the employee’s average weekly wage, as determined under section 31-310; and such compensation shall not continue longer than the period of total incapacity. ...” This statute was amended by Public Acts 1991, No. 91-32, §§ 23, 41, effective July 1, 1991, and by No. 91-339, §§ 26, 55, effective October 1, 1991.
      General Statutes (Rev. to 1991) § 5-142 provides in relevant part: “disability compensation, (a) If any member of . . . any correctional institution . . . or any employee of any juvenile detention home . . . sustains any injury while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or . . . while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled .... All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee or the dependents of such a deceased employee. . . .” This statute was amended, effective October 1, 1991, by Public Acts 1991, No. 91-339, §§ 40, 55.

       Under General Statutes (Rev. to 1991) § 31-310, for the purposes of General Statutes § 31-307, “the average weekly wage shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which, or any portion of which, such worker was actually employed by such employer . . . .” This statute was amended, effective July 1, 1991, by Public Acts 1991, No. 91-32, §§ 28, 41, and No. 91-339, §§ 30, 55.

       The claimant’s contention that she has a statutory right to election of remedies is buttressed by her assertion that a contrary construction of General Statutes § 5-142 (a) would violate her constitutional rights to equal protection of the laws under the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. Although the claimant briefed this issue in response to the state’s appeal to the compensation review division, the review division did not address it. The record does not indicate whether the claimant actively pursued her constitutional claim before the review division. In view of our disposition of the claimant’s appeal, we need not decide whether this issue is properly before us.

       As enacted in 1939, General Statutes § 78e provided in relevant part: “DISABILITY COMPENSATION TO EMPLOYEES OF STATE POLICE AND STATE institutions. Each employee of the state police department or of any correctional or penal institution or of any institution for the care of persons afflicted with a mental disorder or a mental defect, in case of injury sustained while making an arrest or in pursuit of such purpose, or while attending or restraining an inmate of any such institution or sustained as a result of being assaulted while in the performance of his duty, shall not be removed from the payroll, except that, in the event of total disability, he shall be continued on the payroll for two hundred and sixty weeks and thereafter shall receive compensation at the rate of one-half the salary he was receiving at the time of the injury . . . .”

       General Statutes (Rev. to 1991) § 31-284 (a) provides in relevant part: “BASIC RIGHTS AND LIABILITIES. CIVIL ACTION TO ENJOIN NONCOMPLYING EMPLOYER FROM ENTERING EMPLOYMENT CONTRACTS, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.” This statute was amended by Public Acts 1991, No. 91-32, §§ 7, 41, effective July 1, 1991, and No. 91-339, §§ 11, 55, effective January 1, 1992.

       General Statutes § 5-142 was recently amended by Public Acts 1991, No. 91-339, §§ 40, 55, which added the requirement that the injury be the “direct result of the special hazards inherent in such duties.” See footnote 1 of the majority opinion for the pertinent parts of the text of § 5-142 (a) prior to the amendment, and which governs this case.

       General Statutes § 31-307 was recently amended by Public Acts 1991, No. 91-339, §§ 26, 55, which increased the award for total incapacity to 80 percent of the average weekly wage, but reduced the same to take into account federal income taxes and other adjustments. See footnote 1 of the majority opinion for the pertinent parts of the text of § 31-307 prior to amendment.

       General Statutes § 31-275 et seq.

       See footnote 1, supra.

       The workers’ compensation review division found that “Sec. 5-142 (a) after the sentences creating full salary benefits contains the following: ‘All other provisions of the workers’ compensation law not inconsistent herewith, including the specific indemnities and provisions for hearing and appeal shall be available to any such state employee or the dependents of such deceased employee.’ We think Sec. 31-307 defining compensation as equal to sixty-six and two-thirds per cent of average weekly earnings is inconsistent with the full salary definition of benefits provided in Sec. 5-142 (a). We therefore conclude that the claimant’s] election of benefits argument cannot apply.”

       The claimant also argues that the “full salary” should also include “average weekly wage.” There is no basis for the argument. The plaintiff concedes that the commissioner has, without exception, calculated the “full salary” under General Statutes § 5-142 without including overtime. Great deference must be shown to the statutory construction given by the agency. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 173, 479 A.2d 1191 (1984). Likewise, the claimant’s equal protection claim is without merit. The standard of review in this case is that of rational relationship—that is, whether the classification bears a rational relationship to a legitimate state interest. Faraci v. Connecticut Light & Power Co., 211 Conn. 166, 168-69, 558 A.2d 234 (1987). The claimant concedes that under this minimal level of review the statute passes constitutional muster. Her complaint is that the result does not work out well for her. When, however, “the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern.” Eielson v. Parker, 179 Conn. 552, 565, 427 A.2d 814 (1988).