author: Hull, J.

text:
    Magic II, Inc. v. Orest T. Dubno, Commissioner of Revenue Services
    (13213)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued December 11, 1987
    decision released February 16, 1988

      K. Wynne Bohonnon, with whom were R. William Bohonnon, and, on the brief, David Bohonnon, for the appellant (plaintiff).

      Robert L. Klein, assistant attorney general, with whom were Bonnie D. Stewart, certified legal intern, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Hull, J.

The plaintiff has appealed from an assessment by the commissioner of revenue services of a use tax, which totaled $14,831 including penalty and interest, with respect to a sailing yacht owned by it. The commissioner assessed the tax under General Statutes § 12-416 on the basis of the plaintiffs failure to file a return reporting its Connecticut use tax liability under General Statutes § 12-411 on its purchase of a yacht out-of-state for use in Connecticut. The plaintiff sought a reassessment and was granted a hearing pursuant to General Statutes § 12-418 (2). The original assessment was confirmed after a hearing by the deputy commissioner. He found that the vessel was, in reality, a pleasure craft purchased for use by the corporation’s two shareholders and that the corporation itself and its purported conducting of business was a mere subterfuge. The plaintiff appealed this decision to the Superior Court. The matter was referred to Hon. Charles S. House, state trial referee, who exercised the authority of the Superior Court in hearing the appeal. At the hearing on the appeal the entire administrative record was admitted into evidence. Herbert W. Owen, the president of the corporation, testified at that hearing before the deputy commissioner and also at the court hearing. In its memorandum of decision dated December 15, 1986, the court summarized the deputy commissioner’s findings of fact as supplemented in essential detail by evidence before the court and found the deputy commissioner’s finding assessing the use tax fully supported by the evidence. The facts as found by the court are not seriously disputed.

Owen organized the plaintiff as a Delaware corporation on September 21, 1976. Since its organization, Owen has served as the president, treasurer and sole director. He is also the owner of 90 percent of the corporation’s stock. His wife, Alice Owen, in September, 1976, owned a house in and was a resident of Old Saybrook. Since the corporation’s organization she has been vice president, secretary and the owner of the remaining 10 percent of the stock. On March 23,1977, in Maine, the plaintiff purchased a yacht known as “Magic.” Owen made a deposit on the boat on September 1, 1976, before the organization of the corporation. He was then a resident of and domiciled in Connecticut. The boat was delivered on March 23, 1977, for $223,433. Owen guaranteed a $150,000 bank loan used to finance the purchase.

Owen signed an affidavit that the corporation would remove the yacht from Maine immediately upon delivery. The corporation was therefore not liable for the Maine use tax. Owen registered the yacht with the United States Coast Guard as a pleasure vessel and executed a sworn statement that it would be used exclusively as a pleasure vessel. He testified that when it was purchased it was intended that the yacht would be used in Connecticut. On June 1,1977, Owen sailed the yacht to Old Saybrook, where a well attended christening party was held. He then sailed it back to Maine a few days later to be checked over. The yacht has been back in Connecticut periodically since. It was stored at a Mystic shipyard during the winters of 1979-80 and 1980-81. In September, 1977, Owen filed an application with the Old Saybrook harbor master for a 1978 mooring for a forty foot yacht named Magic, and he has made annual applications for a yacht mooring since that time.

The court concluded as follows: “The use tax is an excise tax imposed on the storage, acceptance, consumption or other use in Connecticut of tangible personal property purchased from any retailer for storage, acceptance, consumption or other use in this state. General Statutes Sec. 12-411. It was enacted to complement the sales tax. Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597 [362 A.2d 847 (1975)]. As noted in Stetson v. Sullivan, 152 Conn. 649, 653 [211 A.2d 685 (1965)], ‘three conditions must exist to create taxability. First, there must be a purchase of tangible personal property; second, the purchase must have been made for the purpose of storage, use or other consumption in this state; and, third, there must have been such storage, use or other consumption.’ It is also pertinent to note that the burden of proving any claimed exceptions to a tax is on the taxpayers. Modugno v. Tax Commissioner, 174 Conn. 419, 421 [389 A.2d 745 (1978)], as is the burden of proving that an assessment is erroneous. H.B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 586 [447 A.2d 12 (1982);] Fusco-Amatruda Co. v. Tax Commissioner, supra, 599.

“The hearing officer found that each of the three conditions precedent to a finding that the plaintiff was liable for the use tax assessment existed and the evidence fully supports his findings and conclusions: (a) the yacht was purchased in Maine by the plaintiff corporation; (b) Owen, a Connecticut resident, the president of the corporation, owner of 90% of the corporation’s stock and its sole director, intended that it be brought to Connecticut and it was; (c) . . . the plaintiff purchased the yacht with the intention of using it in Connecticut as it was so used. The evidence fully supports this finding as does the statutory presumption contained in General Statutes Sec. 12-411: ‘It shall be presumed that tangible personal property shipped or brought to this state by the purchaser was purchased from a retailer for storage, use or other consumption in this state.’ While Owen was extremely evasive in responding to inquiries as to the full extent of the corporation’s use of the yacht in Connecticut, the evidence fully supports a finding that there was such use. The statute does not require a major or principal use in the state. Even a very brief and limited use is sufficient to justify the imposition of the tax. Stetson v. Sullivan, [supra, 654]; United Aircraft Corporation v. Connelly, 145 Conn. 176, 182 [140 A.2d 486 (1958)].”

The plaintiff briefed two issues on appeal: (1) whether the trial court erred in adopting the findings of the commissioner of revenue services in assessing the plaintiff a use tax; and (2) whether a state may assess a use tax against a corporation with no taxable situs within the state and whose sole connection with the state is the passage through the state of a federally documented vessel owned by the corporation.

We conclude that, despite the ornate wrappings of the plaintiffs appeal, it is a patent and necessarily futile attempt to have this court retry the facts, which we cannot do. The plaintiff recites certain facts in its brief concerning Owen’s residence in Key Largo, Florida, his use of the yacht one winter in Florida and his use of the Old Saybrook mooring for a twelve foot powerboat. These facts were not found by the trial court.

“Ordinarily we do not ‘ “resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings or exhibits which are not part of the record.” ’ Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). References in the ‘statement of facts’ in a brief or references to testimony in the transcript, even if uncontradicted, do not constitute facts in the case. Where the factual basis of the court’s decision is unclear, ‘proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. “It remains the appellant’s responsibility to secure an adequate appellate record . . . .” ’ Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983).” Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). The plaintiff made no motion for articulation of the memorandum of decision in the trial court or in this court under Practice Book §§ 4051 or 4061.

We note that even if these “facts” had been found by the trial court, or were in the deputy commissioner’s finding upon which the trial court largely based its conclusions, they would not have changed the result reached by the trial court. The state also recites various “facts,” not found by either the trial court or the deputy commissioner, tending to show that Owen’s claimed use of the yacht as a charter boat was a sham. To the extent that these “facts” are not properly found or contained in exhibits we do not consider them.

We need not dwell on the court’s finding that the three necessary elements for imposition of a use tax were satisfied. Stetson v. Sullivan, supra, 653. The plaintiff purchased the yacht from a retailer with the intent of using it in this state. Owen’s testimony at the hearings before the trial court and the deputy commissioner clearly show that he intended to use the yacht in Connecticut when he purchased it. He so testified in the hearing before the deputy commissioner. This intent, by the plaintiff’s sole director and president, is that of the corporation. Goodspeed v. East Haddam Bank, 22 Conn. 530, 540 (1853). Concerning the third element, the yacht was used and stored in Connecticut. General Statutes § 12-407 defines the words “storage” and “use” as follows:

“(4) ‘Storage’ includes any keeping or retention in this state for any purpose except sale in the regular course of business or subsequent use solely outside this state of tangible personal property purchased from a retailer.
“(5) ‘Use’ includes the exercise of any right or power over tangible personal property incident to the ownership of that property, except that it does not include the sale of that property in the regular course of business.” (Emphasis added.)

The court’s findings met both of these definitions. An extremely limited use is sufficient to constitute a “taxable use” under the use tax. United Aircraft Corporation v. Connelly, supra, 181 (during transportation title to certain items was in the plaintiff; the plaintiff made a taxable use during this period by retaining ownership of the facility with all of the rights, powers and privileges incident thereto).

Numerous decisions in other jurisdictions also have held that a very limited use is sufficient for imposition of the use tax. See, e.g., Louisville Title Agency v. Kosydar, 43 Ohio St. 2d 109, 330 N.E.2d 899 (1975) (repairs and installation of new equipment); Randall v. Norberg, 121 R.I. 714, 720, 403 A.2d 240 (1979) (repairs, maintenance and repeated social visits); Sport- fisherman Charter, Inc. v. Norberg, 115 R.I. 68, 340 A.2d 143 (1975) (chartering of a fishing boat).

The plaintiff drifted away from the narrow issue involved in this case by making numerous claims in its brief based on federal law which, as will be seen, are irrelevant or are foreclosed by the trial court’s unchallenged findings in this case. We will, nevertheless, consider each claim seriatim in order to slay this particular Hydra.

The Plaintiff’s Claim of Exclusive Federal Maritime Jurisdiction

The plaintiff argues without citation of authority that federally documented vessels may not be taxed by the states for passing through navigable waters. This claim is inapposite since the use tax in this case was imposed for the use and storage of the yacht, Magic, in Connecticut. A similarly inapplicable claim is that “Connecticut’s attempt to impose a sales or use tax on a federally documented vessel with no connection to Connecticut is violative of the federal scheme of regulation.” (Emphasis added.) To state this proposition is to answer it. The plaintiff finally claims that the imposition of a use tax in this case is an “impermissible ‘end around’ the maritime lien process and violative of constitutional and maritime law.” Although a bank placed a $150,000 Preferred Ship’s Mortgage on the yacht, there is no issue in this case involving that lien.

The Plaintiff’s Claim that Spurious “Use Tax” Assessment Violates Due Process

The plaintiff’s argument of this issue is murky at best. The plaintiff repeatedly challenges the nexus of the yacht with the state of Connecticut. It states flatly once again, that “[n]o use tax is owed in the instant case because the vessel was not used, stored, or consumed in Connecticut.” We need not restate the court’s well supported conclusion in this regard. The plaintiff further claims that “[a] federally documented vessel, owned by a Delaware Corporation with no connection save occasional presence in Connecticut is not liable for sales or use tax in this state.” It appears that the plaintiff’s claim involves allegations of both a due process and a commerce clause violation. This claim is totally vitiated by the court’s conclusion referred to above.

This court recently noted in State v. Zach, 198 Conn. 168, 181, 502 A.2d 896 (1985), where the plaintiffs were also claiming that their yachts were engaged in interstate commerce and were beyond the taxing authority of the state of Connecticut, that “more than a bald assertion is necessary to sustain the conclusion that these vessels were engaged in interstate commerce.” The trial court put this claim to rest in its memorandum of decision as follows: “So far as the plaintiff’s reliance upon a claim that imposition of the use tax was prohibited by the Commerce clause of the United States Constitution is concerned, it suffices to note that the corporation failed to prove that it was ever engaged in interstate commerce and, most significantly, not at the time of the yacht’s first use and storage in Connecticut at which time, liability for the use tax arose. See Connecticut Theater Foundation, Inc. v. Brown, 179 Conn. 672, 677 [427 A.2d 873 (1980);] Caldor v. Heffernan, 183 Conn. 566, 575 [440 A.2d 767 (1981);] Fusco-Amatruda Co. v. Tax Commissioner, [supra, 608-10;] and New England Yacht Sales v. Tax Commissioner, 198 Conn. 624, 636-37 [504 A.2d 506 (1986)], where the court observed that ‘the plaintiff cannot rely on an exemption that did not yet exist when its tax obligation became due.’ See also State v. Zach, [supra].”

Even if we assume, arguendo,, that the plaintiff’s yacht was engaged in interstate commerce, “ ‘a state tax is not per se invalid because it burdens interstate commerce, since interstate commerce may constitutionally be made to pay its way.’ ” State v. Zach, supra, 182, quoting Maryland v. Louisiana, 451 U.S. 725, 754, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981). A state tax that “ ‘is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State’ . . . [places] no impermissible burden on interstate commerce . . . .” State v. Zach, supra, 182, quoting Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326, reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977).

The plaintiff relies heavily on Complete Auto Transit, Inc., in support of its position. This reliance is, however, misplaced. The substantial nexus with the taxing state is well established by the trial court’s findings. There is no evidence in this record that the plaintiff paid a use tax to any other state, thus there is nothing to be apportioned. There is no evidence that the tax unfairly discriminates against interstate commerce. The fourth Complete Auto Transit, Inc. element was commented on in Commonwealth Edison Co. v. Montana, 453 U.S. 609, 629, 101 S. Ct. 2946, 69 L. Ed. 2d 884 (1981), wherein the court stated: “when the measure of a tax bears no relationship to the taxpayers’presence or activities in a State, a court may properly conclude under the fourth prong of the Complete Auto Transit, Inc. test that the State is imposing an undue burden on interstate commerce.” (Emphasis added.)

The record is likewise silent on this matter. Before a trial court can consider the application of the Complete Auto Transit, Inc. criteria in a given case, it must first have found that the vessel in question was, in fact, engaged in interstate commerce. See State v. Zach, supra, 182-83.

The plaintiff again cites no pertinent authority for his claimed due process violation. The argument is a potpourri of argumentative assertions all based on the claim of a lack of sufficient nexus to Connecticut. The plaintiff stresses that the vessel is “federally documented and entitled to ply federal waters and the many waters of the states.” This court in State v. Zach, supra, 174-75, faced a claim that the vessels in question were “federally documented” and we addressed this issue in a footnote: “According to the stipulation, the vessels in question are registered under 46 U.S.C. § 11, which was repealed by Public Law No. 96-594, title 1, § 127, 94 Stat. 3459 (1980). We can only assume that these vessels are now registered under 46 U.S.C.A. § 12101 et seq. (1983). Since the defendants claim, in part, that General Statutes § 15-142 is ‘contrary to the established federal system of admiralty jurisdiction’ ... we believe it appropriate on remand that they introduce into evidence the documents and federal statutes pertaining to the registry of these vessels. Only then may their claim under the supremacy clause be properly evaluated.” Id., 174-75 n.5. The plaintiff’s argument boils down once again to reliance upon Complete Auto Transit, Inc., which, as we have already indicated, is not relevant where the trial court has found that the vessel in question was not engaged in interstate commerce. This argument founders on the rock of the trial court’s and the deputy commissioner’s findings to that effect. Accord State v. Bondi, 12 Conn. App. 417, 424, 531 A.2d 151 (1987), where the court stated “[wjith respect to the defendants’ commerce clause claim, we need not reach the question of the statute’s constitutionality because the defendants did not prove that their vessels were engaged in interstate commerce.”

The plaintiff also argues that the imposition of the use tax violates the “home port” doctrine. This claim was disposed of in State v. Zach. “[A]n oceangoing vessel is taxable only in the jurisdiction of its home port, and not in each jurisdiction through which it happens to pass. Hays v. Pacific Mail Steamship Co., 58 U.S. 596, 15 L. Ed. 254 (1855). ... In Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 99 S. Ct. 1813, 60 L. Ed. 2d 336 (1979), the United States Supreme Court traced the development and demise of the ‘home port doctrine,’ stating that ‘[t]his theory of taxation, of course, has fallen into desuetude, and . . . has yielded to a rule of fair apportionment among the States.’ Id., 442. The issue in that case was whether a state may impose an apportioned ad valorem property tax on instrumentalities of commerce ‘that are owned, based, and registered abroad and that are used exclusively in international commerce . . . .’ Id., 444. While concluding that the tax could not constitutionally be imposed on the foreign instrumentalities at issue, the court assumed that if the instrumentalities had been used in ‘purely interstate commerce, Complete Auto would apply and be satisfied, and our Commerce Clause inquiry would be at an end.’ Id., 445. From this dicta we conclude that the ‘home port doc-trim’ as a rule of state taxation of vessels engaged exclusively in interstate commerce has been superseded by the apportionment rule in Complete Auto.” (Emphasis added.) State v. Zach, supra, 183-84.

The Plaintiff’s Claim that Use Tax Assessment in This Instance a Tonnage Tax

Article one, § 10, clause 3, of the United States constitution reads in part as follows: “No state shall, without the Consent of congress, lay any Duty of Tonnage . . . .” The Appellate Court in State v. Bondi, supra, 427, considered this identical claim and ruled that “[a]s the defendants have not paid the tax . . . this claim is not ripe and will not be considered by this court.” In this case, however, the use tax has been assessed and upheld by the Superior Court.

The United States Supreme Court in Clyde Mallory Lines v. Alabama, 296 U.S. 261, 264-65, 56 S. Ct. 194, 80 L. Ed. 215 (1935), stated as follows: “It seems clear that the prohibition against the imposition of any duty of tonnage was due to the desire of the Framers to supplement Art. I, § 10, Clause 2, denying to the states power to lay duties on imports or exports, by forbidding a corresponding tax on the privilege of access by vessels to the ports of a state, and to their doubts whether the commerce clause would accomplish that purpose. If the states had been left free to tax the privilege of access by vessels to their harbors the prohibition against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise.”

A duty of tonnage within the meaning of the Constitution is a charge upon a vessel, as an instrument of commerce, “for entering [or lying in] or leaving a port.” Huse v. Glover, 119 U.S. 543, 549-50, 7 S. Ct. 313, 30 L. Ed. 487 (1886). All taxes and duties, regardless of name or form, which operate to impose a charge of this type are included, whether or not they are measured by the tonnage of the vessel. Clyde Mallory Lines v. Alabama, supra, 265-66.

The tax in this case is obviously not imposed on the privilege of entering, remaining in or departing from a port. It is based on the purchase of a yacht for use in Connecticut, and such use in Connecticut. It is assessed once. Its assessment has no relation to a vessel entering or leaving a port. Thus, it is not invalid as constituting a “Duty of Tonnage.” See In re Los Angeles Lumber Products Co., 45 F. Sup. 77, 81-82 (S.D. Cal. 1942).

The conclusions of the court are legally and logically correct and find support in the facts set out in the memorandum of decision; the facts set out in the decision are supported by the evidence. The court’s decision was not clearly erroneous. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1981).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 12-411. the use tax. (1) Imposition and rate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state . . . ."

       Article one, § 8, of the constitution of the United States reads in part as follows: “The Congress shall have power . . . To regulate Commerce . . . among the several States . . . .”

       The plaintiffs remaining briefed arguments require only summary disposal as follows:
      The attempt to pierce the corporate veil is improper: The trial court specifically declined to invoke this doctrine to hold Herbert W. Owen personally liable for the use tax assessed. He was never personally assessed for the tax and is not a party to this litigation.
      Taxation of federally documented vessels: This section is a rehash of arguments previously rejected in this opinion.
      Federally documented vessels are not subject to state imposed regulations of payment of local taxes as a precondition to registration: There is no issue in this case concerning such a claim.
      The imposition of a use tax in this instance is an ad valorem tax: This is, once again, a rehash of the nexus questions and contains no citation of authority or legal analysis whatsoever other than the mere statement of the issue itself. See Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984) (“‘[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court’”).


source: Caselaw Access Project

license: Public Domain

text:
    Michael M. McLaughlin v. George Bronson, Warden
    (13110)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.
    Argued November 6, 1987
    decision released February 16, 1988

      Benjamin Smith, for the appellant (petitioner).

      Carl J. Schuman, assistant attorney general, with whom were L. D. McCallum, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (respondent).
   Hull, J.

The petitioner, Michael M. McLaughlin, appeals from a decision denying his motion for summary judgment and granting the state’s motion for summary judgment in his habeas corpus proceedings. We find no error.

The following facts are undisputed. The petitioner was convicted of murder in 1976 and sentenced to a term of imprisonment of twenty years to life. In 1982, he was sentenced to a consecutive term of nine months for attempted escape. During his incarceration, he married Eileen McLaughlin. In 1985, the petitioner applied to the board of pardons (board) for a commutation of the minimum term of his sentence to time served. On April 1, 1985, the board conducted a hearing at which Mrs. McLaughlin testified, representing that she was a graduate of Princeton and Yale Universities and a third year medical student at Yale. The board, pursuant to General Statutes § 18-26, granted the commutation making the petitioner immediately eligible for parole. The board of parole (parole board) granted the petitioner parole to his sentence for attempted escape, effective July 15, 1985.

Following these events, the New Haven Register reported that Mrs. McLaughlin had misrepresented her educational achievements. The state thereupon filed with the board an application to revoke the pardon. On June 17, 1985, the parole board suspended the petitioner’s parole pending review by the board of pardons.

The board of pardons conducted a hearing on October 7, 1985, at which the petitioner and his wife were present and testified. Mrs. McLaughlin acknowledged that her educational claims were a complete fabrication but asserted that, because of psychiatric problems, she believed them to be true at the time she made them. The evidence was inconclusive with respect to the petitioner’s knowledge of his wife’s misrepresentations. The board revoked the commutation on December 16, 1985. In its memorandum of decision, the board expressed its concern that the environment into which the petitioner would be released was “diametrically opposed” to that which had been anticipated at the April hearing. The board specifically found that the “[petitioner is confronted with a wife who has either lied to him for several years or, alternatively, who has severe emotional and psychological problems. This fact, coupled with the inherent difficulty in re-adjusting to civilian life, would place Petitioner in an unusually stressful situation.” The board concluded that the factual basis upon which it relied in granting the commutation was substantially different from that presented at the April hearing. Revocation of commutation was made without prejudice to the petitioner’s reapplying to the board in April, 1986. On January 7, 1986, the parole board withdrew the petitioner’s parole on the ground that his eligibility for parole had been negated by the revocation of his commutation. The petitioner did not reapply for a commutation.

The petitioner sought a writ of habeas corpus on the ground that the board was without jurisdiction to revoke the commutation. The petitioner moved for summary judgment and the state also filed a motion for summary judgment. The trial court granted the state’s motion and denied the petitioner’s motion, holding that the board had the power to revoke commutations. The petitioner appealed to the Appellate Court and, pursuant to Practice Book § 4023, we transferred the case to this court.

The petitioner advances the following claims of error: (1) the board of pardons was without jurisdiction to revoke the commutation; (2) General Statutes § 18-26 is vague and overbroad; (3) the board of pardons failed to comply with the Uniform Administrative Procedure Act, General Statutes §§ 4-166 through 4-189; (4) the parole board violated his right to procedural due process when it revoked his parole without a hearing; and (5) the trial court erred in denying his motion for default. The respondent argues that the second, third and fourth claims of error are not properly before this court because the petitioner failed to raise them in the trial court and does not seek review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The respondent also contends that the fifth claim of error is not properly before this court because the record contains no ruling by the trial court on that claim and the petitioner did not move for articulation or otherwise act to complete the record. The petitioner disputes each of these arguments. We agree with the respondent that only the first claim of error is reviewable.

I

Whether a board of pardons may revoke an absolute commutation of sentence prior to actual release of the prisoner is a question of first impression in Connecticut. General Statutes § 18-26 (a) confers upon the board jurisdiction and authority to grant conditional or absolute commutations. As the petitioner correctly notes, the statute makes no express provision for revocation. We disagree with him, however, that the lack of such an express provision deprives the board of authority to revoke a commutation. Rather, we hold that the board may revoke an absolute commutation, prior to actual release of the prisoner, if the factual basis upon which the commutation was granted proves to be erroneous, and the justification for granting the commutation is thereby abrogated.

Commutation of sentence is the substitution of a lesser punishment for that to which a person has been sentenced. Schick v. Reed, 419 U.S. 256, 273, 95 S. Ct. 379, 42 L. Ed. 2d 430, reh. denied, 420 U.S. 939, 95 S. Ct. 1150, 43 L. Ed. 2d 416 (1974) (Marshall, J., dissenting); Biddle v. Perovich, 274 U.S. 480, 483, 47 S. Ct. 664, 71 L. Ed. 1161 (1927); 59 Am. Jur. 2d, Pardon and Parole § 5 (1987). Power to commute a sentence is part of the pardoning power, under which it may be exercised. 59 Am. Jur. 2d, Pardon and Parole § 23 (1987). Ordinarily, the pardoning power resides in the executive. Dumschat v. Board of Pardons, 432 F. Sup. 1310, 1312 (D. Conn. 1977) (Dumschat I), aff’d, 593 F.2d 165 (2d Cir. 1979), remanded, 618 F.2d 216 (2d Cir. 1980), rev’d, 452 U.S. 458, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981). In Connecticut, the pardoning power is vested in the legislature; Palka v. Walker, 124 Conn. 121, 198 A. 265 (1938); which has delegated its exercise to the board of pardons. Dumschat v. Board of Pardons, 452 U.S. 458, 463, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981) (Dumschat II). Granting of a commutation is an act of clemency. State v. Walters, 145 Conn. 60, 72-73, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45 (1958). Section 18-26 creates no right or entitlement that may be claimed by any prison inmate. Dumschat II, supra, 467. Furthermore, the statute vests in the board unfettered discretion in making its pardon and commutation decisions; it imposes no definitions, no criteria and no mandates giving rise to a duty to commute a sentence or grant a pardon, or creating a constitutional entitlement to an exercise of clemency. Id., 466. There exists no right to judicial review of denial of commutation. State v. Walters, supra, 73.

The power to revoke a commutation is neither expressly granted nor expressly proscribed by § 18-26. No Connecticut case has before addressed the legality of revocation of an absolute pardon or commutation. In other jurisdictions, it is generally agreed that a pardon or commutation procured by fraud may be revoked. 67A C.J.S., Pardon and Parole § 35; 2 F. Wharton, Criminal Procedure (10th Ed. 1918) § 1469. This is consistent with the general rule that judgments and written instruments obtained by fraud are void. Rathbun v. Baumel, 196 Iowa 1233, 1239, 191 N.W. 297 (1922); Adkins v. Commonwealth, 232 Ky. 312, 319-20, 23 S.W.2d 277 (1929). Some courts have upheld revocation in the absence of fraud, but where a mistake had been discovered. See, e.g., People ex rel. Presser v. Lawes, 221 App. Div. 692, 225 N.Y.S. 53 (1927) (governor not informed of prisoner’s escape); Ex parte Ray, 18 Okla. Crim. App. 167, 193 P. 635 (1927) (governor misinformed about prisoner’s release date).

Some jurisdictions have held that a duly executed and delivered pardon may be revoked by resort to a court of equity; such proceedings serve to protect the valid judgments of the courts and do not interfere with the prerogative of the pardoning authority. Rathbun v. Baumel, supra; Adkins v. Commonwealth, supra. Other courts have stated that the pardoning authority possesses the power to revoke a commutation. People ex rel. Presser v. Lawes, supra, 693 (“[hjaving the power to grant commutation, and to select those to whom it is to be extended, [the governor] may revoke a commutation, once granted, at any time prior to the actual discharge of the prisoner”); Canizio v. State, 8 Misc. 2d 943, 947, 169 N.Y.S.2d 185 (1957), citing People ex rel. Presser v. Lawes, supra (“[i]t was long ago held that the Governor may revoke a commutation, once granted, at any time prior to the actual discharge of the prisoner”); Rowell v. Dutton, 688 S.W.2d 474, 476-77 (Tenn. Crim. App. 1985) (governor has broad power to grant commutations and has power to revoke commutations, but this power expires at expiration of the sentence). These cases and the others cited by the parties are of little value to this court either because they are distinguishable from the case before us or because they fail to articulate the underlying premises for their conclusions.

We conclude, however, that the purposes and goals furthered by Connecticut’s scheme for commuting sentences and the need to preserve the integrity of the board’s decisions support our finding that the board possesses the power to revoke decisions made on the basis of erroneous information.

Commutation of the sentence accelerates an inmate’s eligibility for parole. Dumschat II, supra, 460. This was the express purpose of commuting the petitioner’s sentence. Accordingly, the board considered his case with a view toward his eventual release from prison. The purpose of parole is “to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison. The essence of parole is release from prison, before completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1982). That the board of pardons took these purposes into account when it commuted the petitioner’s sentence is evident from the factors it considered in making its decision: (1) the nature of the crime; (2) the length of time elapsed since the commission of the crime; (3) the institutional record of the inmate; (4) the extent of the petitioner’s efforts at rehabilitation; (5) the results of his efforts at rehabilitation; (6) the stability of the environment to which he would be released; and (7) the petitioner’s psychiatric profile and behavior. Following the revocation hearing, the board concluded that the environment to which the petitioner would be released was substantially different from that which, in part, had induced the board to grant the commutation, and that this change was so significant as to warrant reversal of the board’s decision.

The board, having considered the petitioner’s application for commutation, assessed his record and conducted a hearing, was best situated to evaluate the effect of any material misrepresentation on its judgment as to the factors weighed in its decision. The fact that the board could not make a finding of fraud committed by either the petitioner or his wife does not diminish the importance of the misrepresentations. Whether Mrs. McLaughlin had lied to the petitioner or believed her statements to be true, the stability of the environment to which the petitioner would eventually be released was cast into doubt. It would be illogical for this court to hold that the board of pardons was bound by its original decision and could not, upon discovery of the misrepresentations, reconsider its decision, reevaluate the factors and modify or revoke the commutation accordingly. To require the board to abide by a wholly discretionary decision to exercise clemency based on erroneous information bearing on the petitioner’s reintegration into society would run counter to the purposes of early release from prison. Furthermore, since the petitioner was still incarcerated and parole to his consecutive sentence had been suspended, the board was able to rectify this situation while the petitioner was still in custody serving his original sentence.

Therefore, the trial court was correct in concluding that the board of pardons may revoke an unconditional commutation, prior to release of the petitioner, upon presentation of evidence that material facts underlying the board’s decision were misrepresented to the board.

II

The petitioner’s fifth claim of error merits little discussion. The petitioner had filed a motion for default for the respondent’s failure to plead. The record does not clearly show the trial court’s disposition of the motion. In any event, “[t]he denial of a motion for . . . default is committed to the discretion of the trial court and is not a ground of appeal, nor is it assignable as error.” Thomas v. Commerford, 168 Conn. 64, 72, 357 A.2d 476 (1975).

III

We also decline to consider the petitioner’s second, third and fourth claims. He argues that they are reviewable under State v. Benite, 6 Conn. App. 667, 507 A.2d 478 (1986), and the “Evans Bypass,” apparently referring to the exceptional circumstances doctrine articulated by this court in State v. Evans, supra. We disagree.

In his habeas corpus petition, the petitioner did not challenge General Statutes § 18-26 on the grounds of vagueness and overbreadth, nor does the record otherwise disclose the existence of such a claim. The trial court’s memorandum of decision states that the petitioner’s claim involving this statute was that since it does not specifically authorize revocation of a commutation of sentence, revocation was unlawful. Nonetheless, the petitioner insists that vagueness and overbreadth were contested throughout the proceedings. This court has not been provided with a transcript of the habeas corpus proceedings.

Ordinarily, we will not address issues, constitutional or otherwise, that have not been preserved for appeal in the trial court. State v. Hufford, 205 Conn. 386, 406, 533 A.2d 866 (1987). In State v. Evans, supra, 70, however, we carved out two narrow exceptions to this rule: (1) where a new constitutional right, not readily foreseeable, has arisen between the time of trial and appeal; and (2) where the record adequately supports a claim that a litigant clearly has been deprived of a fundamental constitutional right and a fair trial.

The appellant is obliged to provide a record adequate to raise a claim of error. Practice Book § 4061; State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987); Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). The record furnished by the petitioner fails even to disclose a challenge in the trial court to § 18-26 on the grounds of vagueness or over-breadth. This claim of error is not in any way cognizable under Evans. Accordingly, we will not review it. Furthermore, although the petitioner characterizes § 18-26 as vague and overbroad, the substance of his challenge is that the statute does not authorize the board to revoke a commutation, a matter we addressed in part I of this opinion.

Similarly, we will not review the petitioner’s claim that he was denied procedural due process by the parole board. The record before us discloses that the petitioner attacked the action of the board of pardons only. He did not address his habeas corpus petition or any of his pleadings and memoranda to the revocation of parole. His only allegations of due process violations appear in connection with the action of the board of pardons. The petitioner asserts that this issue was argued before the trial court. As noted earlier, however, we have not been provided a transcript of the proceedings below and consequently have before us no record supporting this claim of error. Absent exceptional circumstances, we will not review claimed errors unless they were distinctly raised at trial and the trial court was afforded an opportunity to rule on them. Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 466-67, 378 A.2d 547 (1977); State v. Evans, supra, 69-70. The record in this case does not indicate that the trial court had an opportunity to rule on the petitioner’s due process claims with respect to the parole board’s action, nor does this record support application of the exceptional circumstances doctrine of State v. Evans, supra. Accordingly, we will not review this claim. Rybinski v. State Employees’ Retirement Commission, supra.

We also decline to review the petitioner’s claim that the board of pardons failed to comply with the Uniform Administrative Procedure Act (UAPA).

Although the petitioner invoked the UAPA in his petition and his memoranda to the trial court, the trial court’s memorandum of decision makes no mention of this issue. Our rules of practice require that the trial court state its decision on each issue in the case and its conclusion as to each claim of law raised by the parties. Practice Book § 4059. Practice Book § 285A provides that a party who intends to raise a claim of law that may be the subject of an appeal must either state it distinctly to the court before the close of his argument or state it in a written trial brief. Since this issue was presented to the trial court in the petitioner’s pleadings and memoranda, we conclude that it was raised within the meaning of Practice Book § 4059. See City Savings Bank of Bridgeport v. Dessoff, 3 Conn App. 644, 647, 491 A.2d 424, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985). The petitioner, however, did not assign as error the trial court’s failure to rule on this claim of law nor did he seek, by motion for articulation in the trial court or this court; Practice Book §§ 4051, 4061; to have the trial court address this issue. Scherr v. Scherr, 183 Conn. 366, 368-69, 439 A.2d 375 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222 n.5, 435 A.2d 24 (1980); Stabile v. D. & N. Transportation Co., 129 Conn. 11, 13, 26 A.2d 12 (1942). It remains the appellant’s responsibility to furnish an adequate appellate record. Practice Book § 4061. Because the deficiency of the record regarding this claim should have been remedied by the petitioner, we will not remand the case to the trial court for rectification. Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 295-96, 533 A.2d 208 (1987); Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983). Therefore, we will not review this claim.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 18-26 provides in relevant part: “JURISDICTION, (a) Jurisdiction over the granting of, and the authority to grant, commutations of punishment or releases, conditioned or absolute, in the case of any person convicted of any offense against the state and commutations from the penalty of death shall be vested in the board of pardons.”

       We consider the legality of revoking an absolute or unconditional commutation only. The propriety of revoking a conditional commutation is not before the court in this case.

       The trial court stated that revocation should be attended by due process safeguards. Since the board of pardons afforded the petitioner these protections—notice, hearing, representation by counsel, the right to confront and cross-examine witnesses, a neutral and detached hearing body and a written statement articulating the reasons for revocation; see Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972);-we need not decide whether and to what extent they are required.


author: Arthur H. Healey, J.

text:
    State of Connecticut v. John C. Hoeplinger
    (13090)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued November 4, 1987
    decision released February 16, 1988

      Richard Emanuel, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Frank S. Maco, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

After a jury trial, the defendant, John C. Hoeplinger, was found guilty of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant was sentenced to a term of imprisonment of twenty years. The defendant appealed to the Appellate Court which affirmed the conviction. State v. Hoeplinger, 9 Conn. App. 147, 517 A.2d 632 (1986). This court granted the defendant’s petition for certification.

The two issues presented by this appeal are: (1) whether the Appellate Court erred when it concluded that the admission,of the defendant’s statement in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), was harmless beyond a reasonable doubt; and (2) whether the Appellate Court erred in reviewing the jury instructions on circumstantial evidence “as a whole” rather than using a “close scrutiny” standard and, regardless of the standard of review, whether the Appellate Court erred in concluding that the trial court’s failure to instruct the jury that a fact to be inferred must be proved beyond a reasonable doubt was not erroneous. We reverse the Appellate Court and remand to that court with direction to remand to the trial court for a new trial.

The jury could reasonably have found the following facts: The defendant’s wife, Eileen Hoeplinger, was bludgeoned and strangled to death in the early morning hours of May 7, 1982. The defendant called the Easton police department at 4:55 a.m., requesting that an ambulance be sent to his house. The defendant reported that his wife was “in terrible shape” and had blood “all over her face and head.” Police and medical personnel soon arrived at the scene where the defendant, crying hysterically, led a police officer into the house. The victim, who had a large laceration on her forehead, lay on a couch and was wrapped in sheets and blankets. There were bloodstains on the wall next to the couch, on a coffee table and the rug, and on the floor in the foyer by the front door. The defendant, who had a cut on a finger of his left hand and bloodstains on his shirt and hands, was asked to wait outside the home in the officer’s patrol car. After a second police officer arrived, the defendant reentered the house. The defendant was led again to the patrol car and, while seated there, related the following chronology of that night’s events: He had awakened during the night, had realized that his wife was not beside him in bed, and had proceeded to search the house for her. He then went outside to look for her and found her covered with blood in a wooded area near the driveway. He returned to the house to get sheets and blankets and then wrapped her in them and carried her into the house before calling the police. The defendant walked to where he had claimed to have found the body, pointing out that spot to the second officer, and then returned to the patrol car.

The chief of police of Easton, Gerard Hance, arrived at the defendant’s house shortly thereafter. He was met by the second police officer, who showed him where the defendant had claimed to have found the victim and then took him to view the body. Hance then proceeded to the patrol car, introduced himself to the defendant and asked the defendant to accompany him to the police station in order to relate the events of that night. The defendant acquiesced and was taken by Hance to the Easton police station, where they arrived at about 6 a.m. At the police station, the defendant and Hance proceeded to the chief’s office, where the defendant drank coffee and smoked cigarettes. Hance asked the defendant for a written statement of the night’s events, but the defendant asked Hance to write down his statement while he spoke. Approximately one and one-half hours after the defendant’s phone call to the police, Hance began transcribing the defendant’s statement. The defendant’s account of the evening was punctuated with various digressions, but Hance would lead him back to the events of the night by reading the last information given by the defendant.

In this sixteen page statement, which was read to the jury, the defendant related, in part, the following: He had retired to bed after seeing his wife sleeping in his daughter’s bed. He had “slept like a log” but then had awakened in the middle of the night and had gone to the bathroom. He checked for his wife but she was neither in his daughter’s room nor in the spare bedroom. The defendant checked for her downstairs and in the basement before looking outside. After checking the garage for her car, which he found there, the defendant turned on the outside lights and walked up and down the driveway. Finally, he found her off the driveway. He hugged her and spoke to her but she did not answer. The defendant ran back into the house, grabbed some sheets and covers, and returned to his wife. The defendant then carried her back to the house and put her on the couch in the family room. After calling the emergency number, the defendant attempted to clean the blood off the floor so that his children, ages five years and two and one-half years, would not see the blood. The statement mentioned the couple’s previous marital problems but also related that “last month everything was so good,” that his wife “did oral sex” that night and that “he told her he loved her since he does it every night.” Hance read the statement back to the defendant, but he refused to sign it.

Concerning the Miranda issue, we should note the following circumstances. At some point, either during the taking of the statement or immediately thereafter, the defendant requested the use of the bathroom. Prior to doing so, Hance had told the defendant not to wash his hands when he went to the bathroom. Although the defendant had agreed not to wash his hands, Hance escorted the defendant to the men’s room and stayed inside the bathroom to make sure that the defendant did not forget not to wash his hands. Neither prior to the taking of the statement nor after was he told that he was free to leave the police station; nor was he expressly told that he was under arrest until about 7:35 p.m. that night. He continued to drink coffee and smoke cigarettes in the chiefs office until his lawyer arrived about noon. His attorney was permitted to talk to the defendant in a rear room designated by Hance and where Hance could, and did, observe the conversation through a two-way mirror so that he could make sure nothing happened to the defendant’s hands.

Search and seizure warrants were obtained early that afternoon, “near 1 p.m.,” and the search warrant for the defendant’s person was executed at the police station as the police took swabbings of the defendant’s fingers, took fingernail scrapings, and seized his clothing. Later that afternoon, at about 3 p.m., the defendant was transported to St. Vincent’s Hospital in Bridgeport so that a blood sample could be obtained and so that he could receive treatment for a cut on his left hand. A police officer drove the defendant to and from the hospital in a police vehicle. The defendant was brought back to the police station “near 6 o’clock” and remained there until 7:35 p.m., when he was arrested. Throughout the thirteen and one-half hour period before his arrest, Hance testified that the defendant, who was “very cooperative,” was never told that he should leave or that he was free to leave. It is undisputed that the defendant was never given Miranda warnings at any time prior to his arrest that evening.

At the trial, there was evidence that the victim had been bludgeoned in the head with a blunt object and had also been subject to manual strangulation. The cause of death was a compound skull fracture with brain contusions and lacerations, and asphyxia by strangulation. The state’s theory of the ease was that the defendant had struck his wife with a brick, which it put into evidence, while she was sleeping on the couch in the family room. The defendant, thereafter, allegedly dragged her body outside to a wooded area off the driveway and then dragged her to another wooded area before bringing her back into the house to the couch. The state’s case consisted almost entirely of circum-. stantial evidence, including interpretation of the physical evidence by forensic witnesses. Some of the physical evidence was inconclusive; the state’s forensic experts were able to testify only that certain of the physical evidence was “consistent with” the state’s theory of the case. Certain of that physical evidence, however, was also compatible with the story the defendant had told to the police officers at the crime scene.

The defendant testified at trial and repeated much of what he had related in his statement to Hance. He was cross-examined extensively on his statement, particularly with reference to his prior marital problems and his wife’s interest in obtaining a divorce concerning which the state had earlier offered evidence. Among the new facts that the defendant disclosed in his testimony were more details concerning previous marital problems, his wife’s intention to seek a divorce in 1980 and an incident in 1981 when he had struck his wife. Consistent with his statement, the defendant testified that he and his wife had not had an argument on the evening of the murder and that his wife had never told him that night that she had intended to seek a divorce.

I

The defendant’s first claim is that the Appellate Court erred in its harmless error analysis after properly holding that the defendant’s statement to Hance should have been suppressed. The Appellate Court held that even if both the defendant’s statement and his trial testimony had not been heard by the jury, the jury “could” still have found the defendant guilty beyond a reasonable doubt, thus rendering the error in admitting the statement harmless beyond a reasonable doubt. State v. Hoeplinger, supra, 153-54.

A

Before reaching the harmless error analysis employed by the Appellate Court, it is necessary that we turn to the state’s alternative ground of affirmance raised pursuant to Practice Book § 4140. The state asserts that the defendant was not in custody at the time of the statement at issue in this case and therefore the statement should not be suppressed because no violation of the defendant’s Miranda rights occurred. We disagree with the state and agree with the Appellate Court.

“Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, supra, 444.” State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986); State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Custodial interrogation occurs when “ ‘questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda v. Arizona, supra . . . .” State v. Brown, supra. Although what constitutes police custody is not always self-evident, “the Miranda court was concerned with interrogation that takes place in a police dominated environment containing ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ Miranda v. Arizona, supra, 467 . . . .” State v. Januszewski, 182 Conn. 142, 158, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The United States Supreme Court has held that “the only relevant inquiry [into custody] is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Brown, supra, 54. This court has stated that a “ ‘person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. Acquin, 187 Conn. 647, 655, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); State v. Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).” State v. Young, 191 Conn. 636, 651-52, 469 A.2d 1189 (1983). Because the defendant did not testify at the suppression hearing, we do not know if he personally did not feel “free to leave.” We must look at the totality of the circumstances of the questioning in order to determine whether a “reasonable person” would have construed those circumstances as placing him in a custody situation.

The Appellate Court’s opinion listed a number of pertinent circumstances that point to a finding of custody: The defendant had been “covered with blood” when the officer arrived at his home; the defendant had been escorted twice to the police cruiser at the crime scene; an officer had stood outside the cruiser to which the defendant had been escorted; the defendant had been taken directly to the police station in the police chiefs vehicle; the defendant had not been allowed to go to the bathroom alone in order to prevent him from washing his hands; and the defendant had never been informed that he was free to leave. State v. Hoeplinger, supra, 152-53. We also note that the defendant was at the police station for over thirteen hours except for a trip to a hospital in a police car. During all of this time, except when talking to his lawyer or when he was permitted to use the telephone, he was in the presence of police officers. When not in their presence, he was under continuous surveillance. Both the physical surroundings of interrogation and its duration are important factors in determining whether a suspect is in custody. United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985). Moreover, the defendant had no personal means of transportation to return to his home, which was five miles away, nor did the police offer any. See, e.g., State v. Ostroski, supra, 294 (three hour interrogation and no transportation indicate defendant was in custody).

The state merely asserts that the defendant was not restrained and no words of arrest were conveyed to him. These factors, while relevant, are not dispositive of the custody issue. United States v. Wauneka, supra, 1439 (when officials asked defendant to come to the station and provided transportation, he was in custody); State v. Ostroski, supra, 292-93. The Appellate Court made a scrupulous examination of the record and, based on the totality of the circumstances, found that the defendant had been in custody and had been deprived of his liberty at the time that the statements had been made. We agree with the Appellate Court and reject the state’s assertion that the Appellate Court erred in holding that the defendant had been in custody.

B

Our affirmance of the Appellate Court’s holding that the defendant had been subject to custodial interrogation means that the statement given to Hance was inadmissible to establish his guilt. The “[fjailure to administer Miranda warnings creates a presumption of compulsion . . . [which is] irrebuttable for purposes of the prosecution’s case in chief . . . .” Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). Even “patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case . . . .’’Id.; Miranda v. Arizona, supra, 444. Moreover, whether the statement is “inculpatory” or “exculpatory” is irrelevant as the Miranda decision bars the use of any unwarned statements when there has been a custodial interrogation. Miranda v. Arizona, supra, 476-77; State v. Brown, supra, 52 n.4. The fact that the statement should have been suppressed, however, is not dispositive of the issue. We must, as the Appellate Court did, turn to the question, first, whether the erroneous admission of the statement compelled the defendant to take the witness stand and, second, whether the erroneous admission of the statement was harmless beyond a reasonable doubt. See State v. Hoeplinger, supra, 153.

Our first inquiry is the applicability of the principles of Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), which are invoked by the defendant. In Harrison, a defendant made inculpatory confessions that had been admitted at trial and thereafter he testified on his own behalf. The conviction was overturned because the confessions had been obtained illegally. At retrial, the defendant’s prior testimony was read to the jury despite the defendant’s objection that he had been induced to testify only because of the introduction against him of the inadmissible confessions. Id., 221. The defendant was convicted again but the United States Supreme Court reversed, holding that the prosecution’s use of illegally obtained evidence “prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree . . . ." Id., 222. The court stated: “The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” (Emphasis in original.) Id., 223. Concerning how to determine whether the illegally obtained evidence in fact impelled the defendant’s trial testimony, the Harrison court said that “[h]aving ‘released the spring’ by using the [defendant’s] unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.” Id., 225.

The state at oral argument maintained that Oregon v. Elstad, supra, handed down after Harrison, had called Harrison into question. Oregon v. Elstad, supra, 318, holds only that once a suspect has “responded to unwarned yet uncoercive questioning [he] is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” The majority opinion in Elstad endorses the holding of Harrison that any impelled testimony be precluded on retrial. Id., 316-17. In endorsing Harrison, the Elstad court said that “[i]f the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison v. United States, [supra], precludes use of that testimony on retrial.” Id. Oregon v. Elstad concerns successive confessions and whether a per se rule should prohibit the admissibility of a second confession obtained under proper procedure after a previous confession is ruled inadmissible because of a procedural Miranda violation. See State v. Shifflett, 199 Conn. 718, 740-41, 508 A.2d 748 (1986). Thus, the state’s assertion that Harrison has been called into question by Oregon v. Elstad is incorrect.

Other courts have approved the Harrison rationale in determining whether a defendant’s trial testimony, which followed an inadmissible statement, is itself inadmissible. See, e.g., United States v. Ledezma-Hernandez, 729 F.2d 310, 313 (5th Cir. 1984) (“[w]here a defendant takes the stand to overcome the impact of the testimony that has been illegally obtained, the trial testimony itself becomes tainted by the illegally obtained statements”); Gilmore v. Marks, 613 F. Sup. 282, 286 (E.D. Pa. 1985), rev’d on other grounds, 799 F.2d 51 (3d Cir. 1986); Lewis v. United States, 483 A.2d 1125, 1132-33 (D.C. App. 1984); State v. Ayers, 433 A.2d 356, 363 (Me. 1981); Hillard v. State, 286 Md. 145, 157, 406 A.2d 415 (1979); State v. Clark, 296 N.W.2d 372, 375 (Minn. 1980); Jones v. State, 461 So. 2d 686, 702-704 (Miss. 1984); People v. Walker, 108 Misc. 2d 980, 985, 438 N.Y.S.2d 65 (1981); Neely v. State, 97 Wis. 2d 38, 50, 292 N.W.2d 859 (1980).

This court has not previously utilized a Harrison analysis but, in State v. Buteau, 136 Conn. 113,116, 68 A.2d 681 (1949), cert. denied, 339 U.S. 903, 70 S. Ct. 516, 94 L. Ed. 133 (1950), a pre-Harrison case, it was faced with a claim of illegally obtained evidence that had forced a defendant to testify. Although the court found that the evidence was admissible; id., 123; it also stated by way of dictum: “The evidence was offered as a part of the state’s case in chief, and had it not been admitted it may well have been that the defendant would not have testified. For that reason, the admission of the testimony, if erroneous, cannot be claimed to have been harmless.” Id., 116.

We turn to whether the defendant’s trial testimony was impelled by the use of the illegally obtained statement. Noting the difficulty of “unraveling] the many considerations that might have led the [defendant] to take the witness stand”; Harrison v. United States, supra, 224; the United States Supreme Court has placed the burden on the government to “show that its illegal action did not induce his testimony.” Id., 225; Oregon v. Elstad, supra, 308. The state’s case consisted almost entirely of circumstantial evidence including physical evidence which had been attacked by the defendant as inconsistent and inconclusive. With the exception of a neighbor who observed lights at the defendant’s house at an abnormally late hour, there were no witnesses to any suspicious activity by the defendant that night. The defendant’s statement, although exculpatory on its face, was potentially harmful to him in a number of ways: It buttressed the state’s theory of the case, particularly as to motive; it was inconsistent with independent trial testimony concerning the state of the defendant’s relationship with his wife; and it generally put the defendant’s credibility in a very poor light. The fact that a statement may be facially exculpatory does not preclude its use by the state for an inculpatory effect. As the Miranda court realistically recognized, “[i]f a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication.” Miranda v. Arizona, supra, 477; see also Rhode Island v. Innis, 446 U.S. 291, 309 n.5, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). We hold that, in the circumstances of this case, the state has not satisfied its burden of proving that the inadmissible pretrial statement did not induce the defendant’s trial testimony.

The dictates of Harrison v. United States, supra, as approved in Oregon v. Elstad, supra, provide that both the defendant’s statement obtained in violation of Miranda and his impelled trial testimony should have been suppressed. Before we order a new trial on this ground, however, we must first determine if the jury would still have found the defendant guilty beyond a reasonable doubt even if both the defendant’s statement and his testimony had not been admitted into evidence at trial. State v. Ayers, supra; Hillard v. State, supra. If so, a retrial would be unnecessary as this federal constitutional error would be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Marino, 190 Conn. 639, 657, 462 A.2d 1021 (1983).

C

The Appellate Court concluded that even if the defendant’s statement and his trial testimony had not been heard at trial, the jury could still have found the defendant guilty beyond a reasonable doubt. State v. Hoeplinger, supra, 153. It supported its decision by noting that “[t]he impact of the error upon the trier and the result could only have been favorable to the defendant.” Id., 154. We disagree.

In order to assess the harmfulness of the error, “the test is whether ‘there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.’ Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972).” State v. Shifflett, supra, 751-52. The “‘harmfulness of an error depends upon its impact on the trier and the result . . . .’ State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring).” State v. Ortiz, 198 Conn. 220, 225, 502 A.2d 400 (1985). As the United States Supreme Court said in Chapman v. California, supra, 24, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” This court has held in a number of cases that when there is independent “overwhelming evidence” of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt. See, e.g., State v. Whitaker, 202 Conn. 259, 272-73, 520 A.2d 1018 (1987); State v. Leecan, 198 Conn. 517, 533, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Bruno, supra, 335-36; State v. Gordon, 185 Conn. 402, 419, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).

Before we discuss the Appellate Court’s conclusion that there was overwhelming evidence of guilt, we first must examine the standard that it used in its analysis. The Appellate Court concluded that “the jury could still have found the defendant guilty beyond a reasonable doubt.” (Emphasis added.) State v. Hoeplinger, supra, 153. This standard is not the appropriate one for deciding whether an error in a criminal case is harmless beyond a reasonable doubt. The use of the word “could” implies a sufficiency of the evidence standard. As Justice Shea observed in a concurring opinion in State v. Bruno, supra, 336, “[l]egal sufficiency of the evidence is not the test for harmless error .... The harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.” See United States v. Hernandez, 574 F.2d 1362, 1372 (5th Cir. 1978) (error not harmless “[a]lthough there appears to be an ample basis to sustain the conviction”); State v. Moscone, 171 Conn. 500, 508-509, 370 A.2d 1030 (1976) (Miranda violation was not harmless “despite the abundance of properly admitted evidence which tended to prove the defendant’s guilt”); State v. Dullivan, 10 Conn. App. 474, 479, 523 A.2d 1353 (1987), citing Rose v. Clark, 478 U.S. 570, 584, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (Burger, C.J., concurring) (the evidence was “ ‘sufficient’ ” but not “ ‘overwhelming’ ”); People v. Rivers, 64 App. Div. 2d 834, 835, 407 N.Y.S.2d 937 (1978) (error not harmless even though there was “a substantial quantum of credible evidence to support a conviction”). The proper standard is whether any reasonable jury would have found the defendant guilty if the improperly admitted evidence had been excluded. We note, however, that even if the Appellate Court’s use of the word “could” instead of “would” was inadvertent, we still disagree with its conclusion that the error was harmless beyond a reasonable doubt.

We now turn to the evidence to see if it is “overwhelming” so that it establishes the defendant’s guilt beyond a reasonable doubt. The state’s theory of the case drew support from independent testimony that the defendant and his wife had previous marital problems. Linda Cooper, a cousin of the victim, testified to a possible motive when she maintained that on the evening of May 6,1982, the victim had told her that she intended to tell the defendant about her decision to seek a divorce. There is no evidence that the victim said when she would tell the defendant of her decision to do so. The state also offered other evidence tending to show the existence of marital problems. Much of the case, however, consisted of physical evidence and its interpretation by the state’s forensic experts. Although most of the physical evidence was “consistent,” according to the state’s forensic experts, with the state’s theory of the case, that evidence was hardly conclusive. On cross-examination, the state’s main expert witness, Dr. Henry Lee, head of the Connecticut state police forensic laboratory, was forced to concede that some of the key evidence concerning blood spatter marks on the defendant’s sneakers was “not definite” but only “consistent” with the state’s theory. He also admitted that this evidence could be consistent with many other things. Another forensic expert for the state, Herbert Mac-Donnell, after testifying that certain blood spatter marks were consistent with medium velocity impact, conceded on cross-examination that his own book advised that when evaluating small samples, as in this case, it was impossible to differentiate between medium velocity blood spatters and castoff. Although the victim’s blood was found all over the defendant’s clothes and on his person, this fact was also consistent with the version that he related to the police at the scene that he had brought his wife into the house after finding her outside.

The evidence presented at trial, excluding the defendant’s written statement and his testimony, does not reach the standard of “overwhelming evidence” that must be met to find a constitutional error harmless beyond a reasonable doubt. See Chapman v. California, supra. On the other hand, although the defendant’s statement and testimony appeared to be exculpatory, it is probable that they had the opposite effect. During its cross-examination of the defendant, the state used his written statement on numerous occasions to examine him on matters that indicated that he had not been truthful not only in his version of what happened the night the victim died, but particularly concerning his claims of the state of his marital problems. His credibility was not just attacked but was seriously undermined, if not effectively devastated, by his testimony and the use of his improperly obtained statement. These claimed contradictions between the defendant’s version of events and other independent evidence, especially concerning the state of his marriage, and the general unbelievability of some of his assertions were also highlighted by the state in its closing argument. The state’s attorney in final argument remarked: “[The defendant is] stuck with that incredible story. By his own words when he’s taken the witness stand he’s convicted himself.” That the jury regarded the defendant’s testimony as important is demonstrated when it requested that his testimony be reread. We disagree with the Appellate Court’s conclusion that the admission of this testimony “could only have been favorable to the defendant.” State v. Hoeplinger, supra, 154. The error in admitting the defendant’s statement was not harmless beyond a reasonable doubt.

II

Although the first issue is dispositive of the appeal, we will discuss briefly the defendant’s claims regarding the Appellate Court’s review of allegedly erroneous jury instructions since they may arise in the new trial we order. The defendant claims (1) that the Appellate Court erred in reviewing the instructions on circumstantial evidence as a whole rather than under the close scrutiny standard set out in our previous cases, and (2) that the Appellate Court erred in approving the trial court’s failure to instruct the jury that a fact to be inferred must be proved beyond a reasonable doubt.

Our analysis begins with the challenged instructions themselves. An examination of them reveals that they are not erroneous. Moreover, the Appellate Court never identified any portion of the challenged instructions as erroneous. There is no question that the Appellate Court did state that the “instructions on circumstantial evidence and the use of inferences, reviewed as a whole, were not erroneous”; State v. Hoeplinger, supra, 160; but it did so without saying, or even implying, that the particular instructions attacked were erroneous. Under these circumstances, we need not go further. This is so even if we were to assume that the Appellate Court came to its conclusion after reviewing all of the instructions as a whole, having determined, as it did, that “both the identity of the victim’s assailant, and the intent of the defendant” were factual issues; id., 158-59; thus calling for “whole charge” review. See, e.g., State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). We find no error on this claim.

The defendant also argues that, when virtually all the evidence in a case is circumstantial in nature, the jury must be expressly instructed that “inferred” facts as well as “basic” facts must be proved beyond a reasonable doubt. The jury in this case was amply instructed about the state’s burden to prove guilt beyond a reasonable doubt and the defendant fails to articulate how this jury used any standard of proof other than the proper one. We decline to require such an instruction.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand to the trial court for a new trial.

In this opinion the other justices concurred.

       General Statutes § 53a-55 (a) (1) provides: “MANSLAUGHTER IN THE FIRST degree: class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

       This court certified the following issues for review from the Appellate Court: “A. Whether the Appellate Court erred in concluding that the erroneous admission into evidence of the defendant’s sixteen page statement, obtained in violation of Miranda v. Arizona, was harmless beyond a reasonable doubt?
      “B. Whether, in a case where all the evidence on the issues of intent and identity was circumstantial in nature, the Appellate Court erred in reviewing the instructions on circumstantial evidence ‘as a whole’ rather than reviewing them under the ‘close scrutiny’ standard; and, regardless of the standard of review, whether the Appellate Court erred in concluding that the trial court’s failure to instruct the jury that a fact to be inferred must be proved beyond a reasonable doubt, was not error?”

       The trial court instructed the jury in part as follows: “Now, it is obvious from the evidence that no one actually saw Mr. Hoeplinger or anyone else kill Mrs. Hoeplinger—that is, there is no direct evidence of Mr. Hoeplinger’s participation in this crime—so that all the evidence the prosecution has offered to attempt to prove Mr. Hoeplinger’s participation, culpability, and guilt beyond a reasonable doubt in this homicide is what is called circumstantial evidence.”

       Practice Book § 4140 provides: “papers to be filed by appellant AND APPELLEE
      “(a) Upon the granting of certification, the appellee may present for review alternative grounds upon which the judgment may be affirmed provided those grounds were raised and briefed in the appellate court. Any party to the appeal may also present for review adverse rulings or decisions which should be considered on the appeal in the event of a new trial, provided that he has raised such claims in the appellate court. If such alternative grounds for affirmation or adverse rulings or decisions to be considered in the event of a new trial were not raised in the appellate court, the party seeking to raise them in the supreme court must move for special permission to do so prior to the filing of his brief. Such permission will be granted only in exceptional cases where the interests of justice so require.
      “(b) Any party may also present for review any claim that the relief afforded by the appellate court in its judgment should be modified, provided such claim was raised in the appellate court either in such party’s brief or upon a motion to reargue.
      “(c) Any party desiring to present alternative grounds for affirmance, adverse rulings or decisions in the event of a new trial or a claim concerning the relief ordered by the appellate court shall file a statement thereof within fourteen days from the issuance of notice of certification. Parties shall not file other Sec. 4013 papers on a certified appeal without permission of the supreme court.”

       We note that the focus of this court’s review “is not on the actions of the trial court, but the actions of the Appellate Court. [This court does] not hear the appeal de novo.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

       There is no question that the defendant was subject to interrogation. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v.Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Hance’s request that the defendant give him a statement concerning what happened that night was an “interrogation” for Miranda purposes. State v. Copeland, 205 Conn. 201, 207, 530 A.2d 603 (1987).

       The precise holding of Harrison concerns the use of impelled testimony at retrial, not whether the testimony at the first trial must be stricken for the purposes of a harmless error analysis. The lower court in Harrison reversed the defendant’s conviction because of the illegally obtained confessions and did not use a harmless error analysis. Harrison v. United States, 359 F.2d 214, 222 (D.C. Cir.), on rehearing en banc, 359 F.2d 223 (D.C. Cir. 1965). Therefore, the focus of the United States Supreme Court was on the use of the impelled testimony on retrial, not whether the outcome of the first trial could be affirmed on thé basis of harmless error.

       The state suggests that our earlier decision in State v. Conroy, 194 Conn. 623, 484 A.2d 448 (1984), precludes our consideration of the defendant’s claim that he was impelled to take the witness stand as the result of the admission of his written statement because there was no such claim made at trial. See id., 627 n.5. We do not agree.

        Conroy is readily distinguishable. In Conroy, the defendant objected at trial to admission of testimony by state trooper Richard Connors that he (Connors) had “ ‘received a phone call from Sergeant Tucci, of the Wood-bridge Police Department, in regards [sic] to [the defendant] Kevin Conroy being involved in burglaries.” Id., 626. That was objected to as hearsay and as being more prejudicial than probative. There was no constitutional claim at trial; on appeal Conroy claimed that the admission of such testimony forced him to testify in violation of his fifth amendment right not to do so, thus imposing upon the state the burden to prove the harmlessness of that concededly erroneously admitted evidence beyond a reasonable doubt. We refused to do so pointing out, inter alia, that the record was silent as to the reason for Ms decision to testify.
      In this case, unlike Conroy, we are dealing with the defendant’s own statement, which was erroneously admitted in the state’s case in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), a constitutional violation. In this case, unlike Conroy, because the defendant’s own statement is involved, the defendant has invoked Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), which we decide we must consider given the factual pattern in this case which certainly was not present in Conroy. Moreover, the applicability of Harrison imposes the burden upon the state, having “illegally obtained and hence improperly introduced” this defendant’s statement to “show that its illegal action did not induce his [defendant’s] testimony.” Id., 223, 225. In this case, the constitutional error at trial involved evidence concerning the very crime for which the defendant was on trial, whereas in Conroy, the challenged evidence did not.

       A large portion of the state’s forensic evidence concerned serological evidence, principally from Dr. Henry Lee and Herbert MacDonnell. MacDonnell testified that a certain pattern of small blood spots indicates “medium velocity spatter.” This pattern is produced when a force meets a source accumulation of blood. He also stated that “a beating is the source of medium impact spatter.” MacDonnell’s and Lee’s testimony also discussed blood castoff patterns, which are made when blood drips off an object. A focal portion of the trial testimony in this area concerned whether the blood patterns on the defendant’s sneakers were actually made by medium velocity spatter, consistent with a blunt force hitting a source accumulation of blood, or whether the blood spots were consistent with blood drops that were produced when a bleeding person or a bloody object is being carried.