author: Peters, C. J.

text:
    State of Connecticut v. Carlos Gonzalez
    (13055)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.

      Argued January 13
    decision released March 1, 1988

      Jean Elmblad Blue, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Mary Galvin, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal is whether the defendant, Carlos Gonzalez, has established that the prosecutor discriminatorily employed peremptory challenges to exclude Hispanics from the jury that convicted him of the crime of murder in violation of General Statutes § 53a-54a (a). The defendant appeals from the judgment rendered by the court in accordance with the verdict of the jury.

The jury could reasonably have found the following facts. On September 27, 1985, the defendant was a prisoner at the community correctional center in New Haven. The defendant used a handmade weapon known as a shank to stab the victim, a fellow inmate named Dennis Artis, in the day room of the correctional center. The victim was taken to a hospital and died shortly thereafter.

At trial, the defendant admitted having killed the victim but denied having had the requisite criminal intent. On appeal, the defendant does not challenge the sufficiency of the evidence against him on that issue, but raises two claims of error. He maintains that he is entitled to a new trial because the trial court erred in ruling that: (1) the prosecutor’s use of peremptory challenges was not discriminatory, and (2) a pathologist could give an expert opinion about the interpretation of an autopsy report that he had not prepared. We find no error.

I

In order to review the trial court’s ruling with regard to the prosecutor’s challenges to the venirepersons called to try the defendant, we must examine the factual record of the jury selection process in this case. The defendant is Cuban, while his victim was black. Fourteen jurors, including two alternates, were selected from a panel of forty-one venirepersons. The trial court excluded ten prospective jurors, including one of Puerto Rican background, for cause. The defendant exercised his peremptory challenges to exclude nine jurors, including three who were black. The state exercised its peremptory challenges to exclude eight jurors, including two of Puerto Rican background. The jury that convicted the defendant included no Hispanics. The record fails to indicate whether it included any black persons.

The defendant maintains that he was deprived of a fair trial, in violation of rights guaranteed to him by the equal protection clause of the fourteenth amendment to the constitution of the United States, because of purposeful racial discrimination in the selection of the petit jury that convicted him. The recent decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 86-87, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), emphasizes that such a claim raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.

Batson v. Kentucky, supra, reaffirms that the federal constitutional right to equal protection encompasses the right to question prosecutorial use of peremptory challenges. See Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). “Although a prosecutor ordinarily is entitled to exercise permitted peremptory-challenges ‘for any reason at all, as long as that reason is related to his view concerning the outcome’ of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [Hispanic] jurors as a group will be unable impartially to consider the State’s case against [an Hispanic] defendant.” Batson v. Kentucky, supra, 89.

In Swain v. Alabama, supra, 224, the United States Supreme Court held that a defendant must prove a systematic exclusion of members of a racial group from the petit jury to establish a constitutional violation. Batson modifies this burden of proof. A defendant is no longer required to prove that the peremptory challenges are being exercised to deny equal protection in “case after case”; id., 223; but, under Batson, “may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Batson v. Kentucky, supra, 96.

Batson delineates the process by which claims of discriminatory peremptory challenges are to be adjudicated. The defendant carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. Id., 94 n.18. As in other litigation involving allegations of racial discrimination, the adjudication of claims of discrimination in the selection of the petit jury normally proceeds through two stages. A defendant who is a member of a cognizable racial group must first establish a prima facie case of purposeful discrimination. Id., 96-97. Once that threshold has been crossed, the burden of production shifts to the state to advance a neutral explanation for its peremptory challenges of jurors of the defendant’s race. Id., 97. At this juncture, the defendant has an opportunity to show that the articulated reasons are insufficient or merely pretextual. “Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility”; id., 98 n.21; a trial court’s determination that there has or has not been intentional discrimination is “entitled to appropriate deference” upon review on appeal. Id.

We now turn to the first stage of the Batson inquiry. The defendant must establish by a preponderance of the evidence a prima facie case of purposeful discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Batson defines how this burden may be satisfied. “[T]he defendant first must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ Avery v. Georgia, [345 U.S. 559, 562, 73 S. Ct. 891, 97 L. Ed. 1244 (1953)]. Finally, the defendant must show that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson v. Kentucky, supra, 96.

In this case, the defendant, as an Hispanic, was a member of a racially cognizable group. Castaneda v. Partida, 430 U.S. 482, 495, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); see Hernandez v. Texas, 347 U.S. 475, 479-80, 74 S. Ct. 667, 98 L. Ed. 866 (1954). He preserved his right to challenge the discriminatory nature of the removal of all Hispanics from his petit jury by his timely objection to their removal, and his motions for the dismissal of the jury panel in its entirety. The trial court impliedly ruled that the defendant had raised a reasonable inference of discrimination when the court asked the prosecutor to articulate neutral reasons for her peremptory challenges. See Batson v. Kentucky, supra, 96-97.

The state now asks us to review the merits of the trial court’s ruling, even though at trial the prosecutor complied with the trial court’s request to articulate her neutral reasons without then indicating any reservation about its propriety. The state argues, first, that the trial court’s request for the prosecutor’s articulation was not the functional equivalent of a finding of a prima facie case, and second, that the record does not support the making of such a finding. We disagree. The state’s acquiescence at trial in the inquiry proposed by the trial court may reasonably have been understood by all of the parties as a concession that the defendant had succeeded in raising an inference of a discriminatory prosecutorial purpose. Under these circumstances, the trial court should be deemed to have made the finding that was implicit in its request to the prosecutor. See People v. Turner, 42 Cal. 3d 711, 719, 726 P.2d 102, 230 Cal. Rptr. 656 (1986). Furthermore, a finding of a prima facie case is a mixed finding of fact and law. If the state harbored doubts about the underpinnings of this finding, it was its responsibility, as the appellant on this issue, to provide a record that would permit orderly appellate review. Practice Book § 4061; J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376, 528 A.2d 786 (1987); DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983).

We turn then to the second stage of the Batson analysis, an examination of the neutral reasons advanced by the prosecutor for her peremptory challenges to two Hispanic jurors on the venire. Batson requires a prosecutor, after a prima facie showing of discrimination, to give a clear, neutral and reasonably specific explanation of the state’s reasons for exercising such a challenge. Batson v. Kentucky, supra, 97-98. The purpose of requiring an articulation of neutral reasons is to dispel the inference of discrimination raised by the defendant’s prima facie case. While reliance on intuitive judgment or an affirmation of good faith is insufficient, the explanation need not rise to the level of a finding of cause to disqualify. Id., 97.

Once the prosecutor has advanced reasons for the exercise of the peremptory challenges at issue, the defendant has an opportunity to show that they are insufficient or merely pretextual. United States v. Davis, 816 F.2d 433, 434 (8th Cir. 1987). While Batson does not address the problem of pretext, other courts have discussed the types of evidence that are salient to a showing of pretext. See, e.g., Ex parte Branch, 526 So. 2d 609 (Ala. 1987); People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978); Slappy v. State, 503 So. 2d 350, 355 (Fla. App. 1987). The following examples are by no means exhaustive: (1) The reasons given for the challenge were not related to the trial of the case; Ex parte Branch, supra, 624; Slappy v. State, supra; (2) the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner; Slappy v. State, supra; Ex parte Branch, supra; (3) prospective jurors of one race were asked a question to elicit a particular response that was not asked of the other jurors; Ex parte Branch, supra; Slappy v. State, supra; (4) persons with the same or similar characteristics but not the same race as the challenged juror were not struck; Ex parte Branch, supra; People v. Turner, supra, 725; People v. Wheeler, supra, 282; Slappy v. State, supra; (5) the prosecutor advanced “an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically”; Slappy v. State, supra; Ex parte Branch, supra; and (6) the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race. Ex parte Branch, supra.

To satisfy the burden of showing that the prosecution exercised its peremptory challenges in a discriminatory manner, the defendant must show by a preponderance of the evidence that, but for the prosecutor’s invidious purpose, the juror would not have been challenged. See Texas Department of Community Affairs v. Burdine, supra, 252-53; McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n.10, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976). The defendant need not show that the peremptory challenge of every juror of the defendant’s race was due to an impermissible motive; rather, under Batson, the striking of even one juror on the basis of race violates the equal protection clause, even when other jurors of the defendant’s race were seated and even when valid reasons for the striking of some of the jurors of the defendant’s race were shown. United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986). If the defendant is found to have sustained the burden of proof, the trial court must then dismiss the jurors thus far selected and the remaining venire, and begin anew the jury selection process. People v. Wheeler, supra, 282; Commonwealth v. Soares, 377 Mass. 461, 491, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979); State v. Gilmore, 103 N.J. 508, 539, 511 A.2d 1150 (1986).

Having set out the relevant principles of law, we turn now to the disputed jury selection in this case. The voir dire of the two jurors who were peremptorily stricken by the prosecutor, Carlos Martinez and Magali Kupfer, reveals that each was separately challenged for reasons that were substantially unrelated. We will accordingly review the record as it pertains to each prospective juror individually.

The prosecutor explained her decision to challenge Carlos Martinez on two grounds, that he might have a memory or a comprehension problem that was possibly related to a language problem and that he was insufficiently decisive. Defense counsel countered that the defendant and Martinez were both of Hispanic background, but did not otherwise contest the validity of the reasons given by the prosecutor. In denying the defendant’s motion to impanel a new venire, the trial court implicitly held that the prosecutor had advanced a sufficient explanation.

With respect to the ground suggesting that the juror might have difficulties of memory or comprehension, the prosecutor relied on a possible incongruity between the juror’s responses to inquiries on his jury form and on voir dire questions by defense counsel. On his jury form, the juror had answered “none” to a question asking whether he had had any motor vehicle offenses or parking tickets. In a colloquy between defense counsel and the juror, however, his replies were arguably inconsistent:

“Q. Ever have any experiences with police officers in any capacity, seen them on the street or be stopped for a ticket maybe or being with somebody who had a confrontation that was unpleasant or, on the other hand, a good experience?
“A. Have they ever stopped me for a ticket?
“Q. Well, yeah.
“A. Yes.
“Q. Most people have. I appreciate your honesty. I take it that there was nothing about that experience that would impact on your ability to sit as a juror?
“A. No.
“Q. It’s a common occurrence in today’s society.
“A. No, I don’t think so.”

After Martinez was excused, the prosecutor commented that this colloquy appeared to her to indicate that he might have some difficulty in understanding questions, a problem possibly compounded by his “highly perceptible accent” and by his possible distraction by the presence of an interpreter who was assisting the Spanish-speaking defendant.

With respect to the juror’s indecisiveness, the record of the voir dire indicates the following:

“[Prosecutor:] Now, the Judge also explained that the State doesn’t have to prove its case beyond any and all doubt. If you’re selected to sit would you be able to convict someone if you weren’t absolutely certain that they had done it?
“[Juror:] I guess.
“Q. Now, this is an important question because the Judge will instruct you that beyond any and all doubt or to an absolute certainty is not the State’s standard of proof and if you think you’re going to require absolute certainty it’s important that you tell us now. So, I mean, that’s something only you can know.
“A. I think I could do it.
“Q. In other words, you think you could be satisfied with just proof beyond a reasonable doubt?
“A. Yes, I can.”

On appeal, the defendant maintains that the trial court erred in permitting the prosecutor’s challenge to stand. The defendant first claims that the reason advanced by the prosecutor regarding Martinez’ possible memory or comprehension problem is marred by inconsistencies that reveal its pretextual nature. He argues that the prosecutor contradicted herself when she admitted later that Martinez “obviously understood the questions” during voir dire. This admission, according to the defendant, amply rebuts any suggestion that Martinez had a comprehension problem. The defendant also argues that the affirmative answer Martinez gave during voir dire to the question of whether he had been “stopped for a ticket” did not necessarily contradict his negative answer to the jury form, which had asked whether he had any motor vehicle offenses. According to the defendant, the two questions differed, and therefore deserved different answers, because the voir dire question asked only whether he had been “stopped,” not actually ticketed. The defendant claims that Martinez was challenged in reality because, in the words of the prosecutor, he had a “highly perceptible accent.”

In making this claim, the defendant does not seriously dispute that a prosecutor may legitimately remove jurors who seem not fully to understand trial proceedings. Baynard v. State, 518 A.2d 682, 685-86 (Del. 1986); Chambers v. State, 724 S.W.2d 440, 442 (Tex. Crim. App. 1987). The defendant instead appears to claim that the record as a whole demonstrates that the proffered reasons are merely pretextual. From our vantage point, it is extremely difficult to evaluate the merits of this argument. In arguing the motion to impanel a new venire, defense counsel did not elaborate his claim of pretext as he now does, and, as a result, the trial court was not called upon to rule on the issue specifically. While the prosecutor’s focus on the juror’s accent raises the spectre of an illicit motive at work, the defendant has failed to supply us with an adequate record. Because the defendant did not elicit proper factual characterizations from the trial court on the question of pretext, we are without a decision of the trial court to review. In the final analysis, the burden of proof remained with the defendant to establish purposeful discrimination. Accordingly, we conclude that there is no basis for finding error with respect to this claim of pretext.

As to the second reason advanced by the prosecution, the defendant, while not disputing that the prosecutor could reasonably have believed that Martinez equivocated on the question of proof, claims that juror indecision alone is not a sufficiently specific reason for challenging a prospective juror. According to the defendant, only by connecting the general infirmity of indecision to the specific facts of the case could the prosecutor have provided a reasonably specific explanation of her legitimate purpose. We disagree.

In Batson, the United States Supreme Court stated that the neutral explanation given by the prosecutor must relate “to the particular case to be tried.” Batson v. Kentucky, supra, 98. We decline to read this language as narrowly as the defendant urges. It is no doubt true that some neutral reasons for exercising peremptory challenges will implicate the specific nature of the case to be tried. Just as frequently, however, the prosecutor may believe that a particular juror is unfit for duty because of an infirmity relating to his or her general status as a discerning observer of trial activity. See, e.g., United States v. Cartlidge, 808 F.2d 1064, 1071 (5th Cir. 1987) (upholding decision to remove member of venire who avoided eye contact with the prosecutor); United States v. Ratcliff, 806 F.2d 1253, 1256 (5th Cir. 1986), cert. denied, 481 U.S. 1004, 107 S. Ct. 1265, 95 L. Ed. 2d 199 (1987) (affirming peremptory removal of venireperson who fell asleep during jury selection). In the absence of a demonstration that the general status of a juror is merely a pretext for racial bias, Batson appears not to distinguish between reasons that might arise in only one case and those that tend to recur in all criminal cases. The prosecutor clearly may not, however, rely on a characteristic that is associated with a racial group, for, as the Massachusetts Supreme Judicial Court has observed, the “reason must pertain to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra, 491.

In this case, the prosecutor was concerned that juror Martinez, in his voir dire, displayed an indecisive or equivocal commitment to the prevailing standard of proof beyond a reasonable doubt. This explanation, if adequately substantiated, satisfies Batson because a prosecutor has a legitimate interest in obtaining jurors who will faithfully adhere to the governing burden of proof. People v. Chambie, 189 Cal. App. 3d 149, 156-57, 234 Cal. Rptr. 308 (1987); People v. Peters, 144 Ill. App. 3d 310, 321, 494 N.E.2d 853 (1986). The record in this case indicates that the trial court shared the prosecutor’s concern. After the prosecutor challenged Martinez, defense counsel objected and moved to impanel a new venire. In a colloquy with both counsel, the trial court remarked: “I heard some responses [during the voir dire of Martinez] with respect to the questions on burden of proof which might cause a prosecutor to hesitate before accepting a juror.” Given this affirmative observation by the trial court, we conclude that the record supports its decision that the prosecutor had sufficiently articulated the neutral reason of juror indecisiveness. The trial court did not err in denying the defendant’s motion to dismiss the panel after the prosecutor’s peremptory challenge to Martinez.

We turn next to the prosecutor’s reasons for excusing Magali Kupfer. The first reason was that she belonged to a community organization that had competed for funds with another organization with which the prosecutor was affiliated and that Kupfer had attended a public hearing at which the prosecutor had spoken on behalf of her group. Although Kupfer stated that she had no recollection of meeting or seeing the prosecutor, the prosecutor was concerned that she would recall the connection during the trial. The second reason was Kupfer’s involvement with a pretrial diversion program for juvenile offenders. The prosecutor was concerned that this involvement would make it difficult for her, sitting as a juror, not to consider the punishment to which the defendant would be exposed. Because we conclude that either of these reasons was a valid basis for challenging Kupfer, we do not consider the other reasons advanced by the state.

In the trial court, defense counsel attempted to expose the proffered reasons as pretextual. He argued with regard to each reason that it was not necessarily relevant to Kupfer’s capacity to be objectivé and follow the court’s instructions, which she unhesitatingly affirmed throughout the voir dire. As to Kupfer and the prosecutor having attended the same meeting, defense counsel emphasized Kupfer’s failure to remember the prosecutor. As to Kupfer’s role in the pretrial diversion program, defense counsel noted that people with knowledge of the criminal justice system had often served on juries.

The trial court concluded that the reasons advanced by the prosecution for its challenge to Kupfer were valid and accordingly denied the defendant’s motion to dismiss the panel. While the court stated that the prosecution did not have a basis for excusing Kupfer for cause, it found that Kupfer’s involvement in a pretrial diversion program for youthful offenders was a reasonable basis for a peremptory challenge. The court also noted the prosecutor’s concern regarding Kupfer’s connection with an organization competing for funds with another organization with which the prosecutor was associated and her attendance at a meeting at which the prosecutor had attempted to solicit funds for her own group.

On appeal, the defendant repeats the arguments that he had pressed in the trial court. In addition, he contends that the prosecutor’s acceptance of another juror, George Paradis, who had served as court martial officer in the navy, exposes the pretextuai nature of the prosecutor’s explanation that she had challenged Kupfer because of her experience with the criminal justice system. We are not convinced.

We reiterate that the trial court’s determination that the prosecutor’s reasons were valid is entitled to great deference. From our review of the record, we conclude that it amply supports the trial court’s finding. During voir dire, Kupfer testified that she currently sat on a board that devised appropriate community service sentences for first time offenders. While Kupfer stated that this experience would not influence her participation as a juror in the case at hand, the prosecutor could reasonably have believed that Kupfer’s involvement with the program might interfere with her impartiality in a way that Paradis’ experience in the navy as court martial defense counsel, trial counsel and summary court martial officer would not. In addition, Kupfer testified that she had attended a hearing a few months earlier at which a large number of organizations, including her own, had sought funding from a community block grant. She did not remember hearing anyone who was in the courtroom speak at the meeting. After Kupfer had been excused, the prosecutor represented to the trial court that she was on the advisory board of a program that competes with other community groups for funding, and that she had spoken at the hearing to solicit funds for her group. Under the circumstances, the prosecutor’s concern that, during the trial, Kupfer would remember the prosecutor’s role at the meeting and might be biased against her was sufficiently reasonable as not to be pretextual. We conclude that either of these two reasons alone justified the prosecutor’s use of a peremptory challenge against Kupfer and accordingly that the trial court did not err in denying the defendant’s motion to dismiss the panel.

II

The defendant next claims that the trial court erred in admitting an autopsy report and in permitting a pathologist to testify about its contents. We find no error.

When the case went to trial, the pathologist who had prepared the autopsy report on the victim, Dr. Malka Shah of the office of chief medical examiner, was out of the country. The state offered the autopsy report into evidence, under the business records exception to the hearsay rule, through the testimony of Dr. Arkady Katsnelson, a pathologist employed by the same office. Defense counsel expressly declined to object to the admission of the report.

On appeal, the defendant first claims that the autopsy report was improperly admitted into evidence under the standards laid down in State v. Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980). He argues that the autopsy report lacked sufficient indicia of reliability to pass muster as a business record because its ultimate conclusion on the cause of death was the product of subjective evaluation. We decline to review this claim, however, because the defendant consented to the admission of the report at trial and hence waived any objection. Practice Book § 4185.

The defendant also appears to maintain that it was error for the trial court to permit Katsnelson to give opinion testimony based on the autopsy report. The defendant raises no confrontation clause claim and does not challenge Katsnelson’s qualifications as an expert. “In these circumstances, the ruling by the trial court is consistent with the accepted principle that an expert’s testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion.” State v. Cosgrove, supra, 584. The defendant extensively cross-examined Katsnelson and by this means was able to put before the jury the question of the credibility of the witness. It was within the province of the trier of fact to assign as much weight to the testimony of Katsnelson as it saw fit. State v. Girolamo, 197 Conn. 201, 215, 496 A.2d 948 (1985).

There is no error.

In this opinion the other justices concurred.

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

       Because the defendant makes no claim that article first, § 8, of the Connecticut constitution affords him additional protection from discriminatory jury selection, our decision today rests on federal grounds. We note that the holding in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), involves the guarantee of equal protection of the laws in the fourteenth amendment to the United States constitution. Various state courts have held under their constitutions that the independent right to trial by an impartial jury drawn from a representative cross-section of the community is violated by the discriminatory exercise of peremptory challenges. People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978); Riley v. State, 496 A.2d 997, 1012 (Del. 1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. 2d 743 (1986); State v. Neil, 457 So. 2d 481, 486 (Fla. 1984); Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979); State v. Gilmore, 103 N.J. 508, 522, 511 A.2d 1150 (1986); State v. Crespin, 94 N.M. 486, 488, 612 P.2d 716 (1980). At least one federal Circuit Court of Appeals has reached a similar result under the sixth amendment to the United States constitution. McCray v. Abrams, 750 F.2d 1113, 1124-34 (2d Cir. 1984).

       The United States Supreme Court has clarified the function of the prima facie case in the context of adjudication under title VII: “[T]he prima facie case 'raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’ ” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), quoting Furnco Construction Corporations Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978). “Prima facie case” in this context denotes “the establishment of a legally mandatory, rebuttable presumption,” in contrast to other contexts in which the phrase represents the stage at which a litigant has produced sufficient evidence to permit a trier of fact to infer the fact at issue. Texas Department of Community Affairs v. Burdine, supra, 254 n.7. “[I]n the latter sense, [the term] means merely that the proponent is safe in having relieved himself of his duty of going forward, while in the former sense it signifies that he has further succeeded in creating it anew for his opponent.” 9 J. Wigmore, Evidence (Chadbourn Rev. 1981) § 2494; cf. Berchtold v. Maggi, 191 Conn. 266, 270-71, 464 A.2d 1 (1983).

       The defendant has not challenged the validity of the trial court’s ruling excusing one of the Hispanic members of the venire for cause. This juror, who was of Puerto Rican background, was excused because of linguistic difficulties. She also had indicated that she would be reluctant to convict an Hispanic defendant.

       To clarify the difference between the lesser burden imposed by Batson and the traditional “for cause” standard, we can usefully draw upon an analogy to the law of Terry stops. Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a police officer’s justification for the investigative stop of a suspect need not rise to the level of probable cause; see id., 26-27; State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987); rather, it is sufficient if the police officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry v. Ohio, supra, 21; State v. Aillon, supra. By the same token, to rebut an inference of discrimination, a prosecutor must articulate a neutral explanation related to the particular case to be tried. Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

       After the trial court has found that a defendant has made out a prima facie case and the state has articulated neutral reasons for its peremptory challenges, a defendant need not put on additional evidence to demonstrate pretext. If, however, the defendant makes a showing of a special need to call the prosecutor to the stand in order further to explore the possibility of pretext, the trial court may permit such an examination; see, e.g., Chambers v. State, 724 S.W.2d 440, 441 (Tex. Crim. App. 1987); in which event the prosecutor is entitled to the assistance of counsel. Such an examination does not automatically disqualify the prosecutor from further participation in the case because automatic disqualification would ordinarily “work substantial hardship” on the state. Rules of Professional Conduct § 3.7 (a) (3).


source: Caselaw Access Project

license: Public Domain

text:
    Aetna Casualty and Surety Company v. George A. Murphy III
    (13206)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued January 5
    decision released March 1, 1988

      Lester Katz, with whom was Rebecca B. Lamont, for the appellant (defendant-third party plaintiff).

      Richard A. Roberts, with whom, on the brief, was Paul A. Morello, Jr., for the appellee (third party-defendant).
   Peters, C. J.

The sole issue in this appeal is whether an insured who belatedly gives notice of an insurable claim can nonetheless recover on the insurance contract by rebutting the presumption that his delay has been prejudicial to the insurance carrier. The plaintiff, Aetna Casualty and Surety Company, brought an action against the defendant, George A. Murphy III, to recover for damage he allegedly caused to a building it had insured. The defendant then filed a third party complaint impleading his comprehensive liability insurer, Federal Insurance Company, Chubb Group of Insurance Companies (hereinafter Chubb), as third party defendant. Chubb successfully moved for summary judgment on the ground that Murphy, the defendant and third party plaintiff, had inexcusably and unreasonably delayed in complying with the notice provisions of the insurance contract. The defendant appeals from this judgment. We find no error.

The underlying facts are undisputed. The defendant, George A. Murphy III, a dentist, terminated a lease with Hopmeadow Professional Center Associates on or about November 30, 1982. The manner in which he had dismantled his office gave rise to a claim for damages to which the plaintiff, Aetna Casualty and Surety Company, became subrogated. Although served with the plaintiffs complaint on November 21, 1983, the defendant gave no notice of the existence of this claim to Chubb until January 10, 1986. The motion to implead Chubb as third party defendant was filed on May 14, 1986, and granted on June 2, 1986.

Chubb moved for summary judgment on its three special defenses, alleging Murphy’s noncompliance with the terms of his insurance policy. Its first claim was that it was entitled to judgment because Murphy had ignored two provisions in the Chubb policy imposing notice requirements on its policyholders. The first of these provisions states: “In the event of an occurrence, written notice . . . shall be given by or for the insured to the company . . . as soon as practicable.” The other states: “If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons, or other process received by him or his representative.” In his answer to Chubb’s special defenses, Murphy admitted his failure to comply with these provisions. Accordingly, his affidavit opposing summary judgment raised no question of fact but relied on his argument that, as a matter of law, an insurer may not deny coverage because of late notice without a showing, on its part, that it has been prejudiced by its insured’s delay.

The trial court granted Chubb’s motion for summary judgment on its first special defense. It found that Murphy’s two year delay in giving notice to Chubb was inexcusable and unreasonable, and concluded that such a delay “voids coverage and insurer’s duties under the contract [of insurance] . . . .”

On appeal, Murphy challenges only the trial court’s conclusion of law. Despite his inexcusable and unreasonable delay in giving notice, he maintains that he is entitled to insurance coverage because Chubb has failed to allege or to show prejudice because of his late notice.

As Murphy concedes, the trial court’s decision accurately reflects numerous holdings of this court that, absent waiver, an unexcused, unreasonable delay in notification constitutes a failure of condition that entirely discharges an insurance carrier from any further liability on its insurance contract. Lafayette Bank & Trust Co. v. Aetna Casualty & Surety Co., 177 Conn. 137, 139, 411 A.2d 937 (1979); West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 398, 389 A.2d 741 (1978); Andover v. Hartford Accident & Indemnity Co., 153 Conn. 439, 444-45, 217 A.2d 60 (1966); Shelby Mutual Ins. Co. v. Williams, 152 Conn. 178, 186-87, 205 A.2d 372 (1964); Silver v. Indemnity Ins. Co., 137 Conn. 525, 530-32, 79 A.2d 355 (1951); Curran v. Connecticut Indemnity Co., 127 Conn. 692, 696, 20 A.2d 87 (1941); Haskell v. Eagle Indemnity Co., 108 Conn. 652, 655-56, 144 A. 298 (1929).

In our appraisal of the continued vitality of this line of cases, it is noteworthy that they do not reflect a searching analysis of what role prejudice, or its absence, should play in the enforcement of such standard clauses in insurance policies. That issue was put on the table, but not resolved, by a vigorous dissent in Plasticrete Corporation v. American Policyholders Ins. Co., 184 Conn. 231, 240-44, 439 A.2d 968 (1981) (Bogdanski, J., dissenting). The time has come for us to address it squarely.

We are confronted, in this case, by a conflict between two competing principles in the law of contracts. On the one hand, the law of contracts supports the principle that contracts should be enforced as written, and that contracting parties are bound by the contractual provisions to which they have given their assent. Among the provisions for which the parties may bargain are clauses that impose conditions upon contractual liability. “If the occurrence of a condition is required by the agreement of the parties, rather than as a matter of law, a rule of strict compliance traditionally applies.” E. Farnsworth, Contracts (1982) § 8.3, p. 544; see Grenier v. Compratt Construction Co., 189 Conn. 144, 148, 454 A.2d 1289 (1983); Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); Strimiska v. Yates, 158 Conn. 179, 185-86, 257 A.2d 814 (1969). On the other hand, the rigor of this traditional principle of strict compliance has increasingly been tempered by the recognition that the occurrence of a condition may, in appropriate circumstances, be excused in order to avoid a “disproportionate forfeiture.” See, e.g., 2 Restatement (Second), Contracts (1981) § 229; Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 280, 409 N.E.2d 185 (1980); 3A A. Corbin, Contracts (1960 & Sup. 1984) § 754; E. Farnsworth, supra, § 8.7, pp. 570-71; 5 S. Williston, Contracts (3d Ed. Jaeger 1961) §§ 769 through 811.

In numerous cases, this court has held that, especially in the absence of conduct that is “wilful,” a contracting party may, despite his own departure from the specifications of his contract, enforce the obligations of the other party with whom he has dealt in good faith. In construction contracts, a builder’s deviation from contract specifications, even if such a departure is conscious and intentional, will not totally defeat the right to recover in an action against the owner on the contract. Grenier v. Compratt Construction Co., supra, 148-49; Vincenzi v. Cerro, 186 Conn. 612, 615, 442 A.2d 1352 (1982). In contracts for the sale of real property, the fact that a contract states a date for performance does not necessarily make time of the essence. Kakalik v. Bernardo, 184 Conn. 386, 392, 439 A.2d 1016 (1981); see Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 148, 328 A.2d 711 (1973). A purchaser of real property does not, despite his knowing default, forfeit the right to seek restitution of sums of money earlier paid under the contract of sale, even when such payments are therein characterized as liquidated damages. Vines v. Orchard Hills, Inc., 181 Conn. 501, 509, 435 A.2d 1022 (1980); Pierce v. Staub, 78 Conn. 459, 466, 62 A. 760 (1906). Finally, despite a failure to deliver contract goods, a seller need not pay an amount contractually designated as liquidated damages to a buyer who has suffered no damages attributable to the seller’s breach. Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 689, 220 A.2d 263 (1966).

This case law demonstrates that, in appropriate circumstances, a contracting party, despite his own default, may be entitled to relief from the rigorous enforcement of contract provisions that would otherwise amount to a forfeiture. On the question of what circumstances warrant such relief, no better guidelines have ever been proffered than those articulated by Judge Benjamin Cardozo in the celebrated case of Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921). Discussing the interpretation of contracts to ascertain how the parties intended to govern their contractual relationship, Cardozo first notes that “[t]here will be no assumption of a [contractual] purpose to visit venial faults with oppressive retribution.” Id., 242. The opinion then continues: “Those who think more of symmetry and logic in the development of legal rules than of practical adaptation to the attainment of a just result will be troubled by a classification where the lines of division are so wavering and blurred. Something, doubtless, may be said on the score of consistency and certainty in favor of a stricter standard. The courts have balanced such considerations against those of equity and fairness, and found the latter to be the weightier. . . . Where the line is to be drawn between the important and the trivial cannot be settled by a formula. ‘In the nature of the case precise boundaries are impossible’ (2 Williston on Contracts, sec. 841). The same omission may take on one aspect or another according to its setting. . . . The question is one of degree, to be answered, if there is doubt, by the triers of the facts . . . and, if the inferences are certain, by the judges of the law .... We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence. Then only can we tell whether literal fulfilment is to be implied by law as a condition.” Id., 242-43.

In the setting of this case, three considerations are central. First, the contractual provisions presently at issue are contained in an insurance policy that is a “contract of adhesion,” the parties to this form contract having had no occasion to bargain about the consequences of delayed notice. Second, enforcement of these notice provisions will operate as a forfeiture because the insured will lose his insurance coverage without regard to his dutiful payment of insurance premiums. Third, the insurer’s legitimate purpose of guaranteeing itself a fair opportunity to investigate accidents and claims can be protected without the forfeiture that results from presuming, irrebuttably, that late notice invariably prejudices the insurer.

There can be no question that the insurance policy in this case is a “contract of adhesion.” That term was first introduced into American legal vocabulary by Professor Edwin Patterson, who noted that life insurance contracts are contracts of adhesion because “[t]he contract is drawn up by the insurer and the insured, who merely ‘adheres’ to it, has little choice as to its terms.” E. Patterson, “The Delivery of a Life-Insurance Policy,” 33 Harv. L. Rev. 198, 222 (1919). Standardized contracts of insurance continue to be prime examples of contracts of adhesion, whose most salient feature is that they are not subject to the normal bargaining processes of ordinary contracts. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 404, 446 A.2d 1059 (1982) (Shea, J., dissenting); Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 125 (Alaska 1984); Cooper v. Government Employees Ins. Co., 51 N.J. 86, 93, 237 A.2d 870 (1968); Great American Ins. Co. v. C. G. Tate Construction Co., 303 N.C. 387, 392-93, 279 S.E.2d 769 (1981); Brakeman v. Potomac Ins. Co., 472 Pa. 66, 72-73, 371 A.2d 193 (1977); F. Kessler, “Contracts of Adhesion-Some Thoughts about Freedom of Contract,” 43 Colum. L. Rev. 629, 631-32 (1943). The fact that the notice provisions in the Chubb insurance policy were an inconspicuous part of a printed form; cf. General Statutes §§ 42a-1-201 (10) and 42a-2-316 (2); supports the characterization of these clauses as a “contract of adhesion.” Nothing in the record suggests that they were brought to Murphy’s attention or that, if they had been, their terms would have been subject to negotiation.

It is equally clear that literal enforcement of the notice provisions in this case will discharge Chubb from any further liability to Murphy with regard to the present claims for insurance coverage. That indeed is the necessary purport of Chubb’s special defense and the consequence of the trial court’s ruling on its motion for summary judgment. The operative effect of noncompliance with the notice provisions is a forfeiture of the interests of the insured that is, in all likelihood, disproportionate. Johnson Controls, Inc. v. Bowes, supra, 280-81.

In determining whether an insured is entitled to relief from such a disproportionate forfeiture, loss of coverage must be weighed against an insurer’s legitimate interest in protection from stale claims. “The purpose of a policy provision requiring the insured to give the company prompt notice of an accident or claim is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances. . . . And further, if the insurer is thus given the opportunity for a timely investigation, reasonable compromises and settlements may be made, thereby avoiding prolonged and unnecessary litigation.” 8 J. Appleman, Insurance Law and Practice (Rev. Ed. 1981) § 4731, pp. 2-5. If this legitimate purpose can be protected by something short of automatic enforcement of the notice provisions, then their strict enforcement is unwarranted.

In our judgment, a proper balance between the interests of the insurer and the insured requires a factual inquiry into whether, in the circumstances of a particular case, an insurer has been prejudiced by its insured’s delay in giving notice of an event triggering insurance coverage. If it can be shown that the insurer suffered no material prejudice from the delay, the nonoccurrence of the condition of timely notice may be excused because it is not, in Restatement terms, “a material part of the agreed exchange.” Literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages. Norwalk Door Closer Co. v. Eagle Lock & Screw Co., supra, 689.

A significant number of cases in other jurisdictions lend support to our conclusion that, absent a showing of material prejudice, an insured’s failure to give timely notice does not discharge the insurer’s continuing duty to provide insurance coverage. Most of these decisions place the burden of proof on the issue of prejudice on the insurer. See Weaver Bros., Inc. v. Chappel, supra, 125-26; Lindus v. Northern Ins. Co. of New York, 103 Ariz. 160, 164, 438 P.2d 311 (1968); Billington v. Interinsurance Exchange, 71 Cal. 2d 728, 744, 456 P.2d 982, 79 Cal. Rptr. 326 (1969); Falcon Steel Co. v. Maryland Casualty Co., 366 A.2d 512, 518 (Del. Super. 1976); O’Nealy. Southern Farm Bureau Ins. Co., 325 So. 2d 887, 891 (La. App. 1976); Ouellette v. Maine Bonding & Casualty Co., 495 A.2d 1232, 1234-35 (Me. 1985); Johnson Controls, Inc. v. Bowes, supra, 282; Wendel v. Swanberg, 384 Mich. 468, 478, 185 N.W.2d 348 (1971); MFA Mutual Ins. Co. v. Sailors, 180 Neb. 201, 204-205, 141 N.W.2d 846 (1966); Cooper v. Government Employees Ins. Co., supra, 93-94; Foundation Reserve Ins. Co. v. Esquibel, 94 N.M. 132, 134, 607 P.2d 1150 (1980); Great American Ins. Co. v. C. G. Tate Construction Co., supra, 394-95; Fox v. National Savings Ins. Co., 424 P.2d 19, 25 (Okla. 1967); Lusch v. Aetna Casualty & Surety Co., 272 Or. 593, 599-601, 538 P.2d 902 (1975); Brakeman v. Potomac Ins. Co., supra, 76-77; Pennsylvania General Ins. Co. v. Becton, 475 A.2d 1032, 1035 (R.I.1984); Factory Mutual Liability Ins. Co. v. Kennedy, 256 S.C. 376, 381, 182 S.E.2d 727 (1971); Oregon Automobile Ins. Co. v. Salzberg, 85 Wash. 2d 372, 377, 535 P.2d 816 (1975). In a few jurisdictions, although prejudice from delay is presumed, that presumption is rebuttable if the insured can demonstrate an actual lack of material prejudice. See National Gypsum Co. v. Travelers Indemnity Co., 417 So. 2d 254, 256 (Fla. 1982); Henderson v. Hawkeye-Security Ins. Co., 252 Iowa 97, 105-106, 106 N.W.2d 86 (1960); Lumbermens Mutual Casualty Co. v. Oliver, 115 N.H. 141, 144, 335 A.2d 666 (1975); Zurich Ins. Co. v. Valley Steel Erectors, Inc., 13 Ohio App. 2d 41, 44, 233 N.W.2d 597 (1968); Ehlers v. Colonial Penn Ins. Co., 81 Wis. 2d 64, 69, 259 N.W.2d 718 (1977). By contrast to these cases which afford some latitude for factual inquiry into prejudice, some jurisdictions continue to enforce delayed notice provisions literally. See State Farm Mutual Automobile Ins. Co. v. Burgess, 474 So. 2d 634, 636 (Ala. 1985); Marez v. Dairyland Ins. Co., 638 P.2d 286, 290 (Colo. 1981); Government Employees Ins. Co. v. Harvey, 278 Md. 548, 553, 366 A.2d 13 (1976); Terrell v. State Farm Ins. Co., 346 N.W.2d 149, 152 (Minn. 1984); Reliance Ins. Co. of New York v. Garsart Building Corporation, 131 App. Div. 2d 828, 829, 517 N.Y.S.2d 189 (1987); Podlewski v. Government Employees Ins. Co., 616 S.W.2d 298, 299-300 (Tex. Civ. App. 1981); State Farm Mutual Automobile Ins. Co. v. Porter, 221 Va. 592, 597, 272 S.E.2d 196 (1980).

In light of existing related precedents in this jurisdiction, although we are persuaded that the existence or nonexistence of prejudice from delayed notice should be determined on a factual basis, the burden of establishing lack of prejudice must be borne by the insured. It is the insured who is seeking to be excused from the consequences of a contract provision with which he has concededly failed to comply. His position is akin to that of the defaulting purchaser of real property in Vines v. Orchard Hills, Inc., supra, 510, where we held that, “[t]o prove unjust enrichment, in the ordinary case, the purchaser, because he is the party in breach, must prove that the damages suffered by his seller are less than than moneys received from the purchaser. . . . It may not be easy for the purchaser to prove the extent of the seller’s damages, it may even be strategically advantageous for the seller to come forward with relevant evidence of the losses he has incurred and may expect to incur on account of the buyer’s breach. Nonetheless, only if the breaching party satisfies his burden of proof that the innocent party has sustained a net gain may a claim for unjust enrichment be sustained.” Principles of unjust enrichment and restitution bear a family resemblance to those involved in considerations of forfeiture. Under both sets of principles, the law has come to permit a complainant to seek a fair allocation of profit and loss despite the complainant’s own failure to comply fully with his contract obligations. The determination of what is fair, as a factual matter, must however depend upon a proper showing by the complainant who seeks this extraordinary relief.

Applying these principles to the present case, we conclude that the trial court was correct in granting summary judgment, although not for the reason upon which it relied. A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). Chubb, the third party defendant, was not automatically discharged because of the delay of Murphy, the third party plaintiff, in giving notice of an insured occurrence. Chubb was, however, entitled to summary judgment because Murphy’s affidavit opposing summary judgment contained no factual basis for a claim that Chubb had not been materially prejudiced by Murphy’s delay.

There is no error.

In this opinion Healey, Callahan and Glass, Js., concurred.

Covello, J., concurred in the result.

       Chubb, the third party defendant, had filed three special defenses, although the trial court ruled on only one. The first special defense relied on Murphy’s admitted failure to give written notice of loss as soon as practicable and to forward notice of the claim against him immediately upon its filing by the plaintiff. The second and third special defenses related to questions of coverage: whether the loss suffered by Murphy was excluded as having been “expected or intended from the standpoint of the insured” or as falling outside the policy definitions of “occurrence.”

       The Restatement (Second) of Contracts (1981) § 229, entitled “Excuse of a Condition to Avoid Forfeiture,” provides: “To the extent that the nonoccurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.”
      Comment b elaborates on the concept of “disproportionate forfeiture” as follows: “The rule stated in the present Section is, of necessity, a flexible one, and its application is within the sound discretion of the court. Here, as in § 227 (1), ‘forfeiture’ is used to refer to the denial of compensation that results when the obligee loses his right to the agreed exchange after he has relied substantially, as by preparation or performance on the expectation of that exchange. See Comment b to § 227. The extent of the forfeiture in any particular case will depend on the extent of that denial of compensation. In determining whether the forfeiture is ‘disproportionate,’ a court must weigh the extent of the forfeiture by the obligee against the importance to the obligor of the risk from which he sought to be protected and the degree to which that protection will be lost if the non-occurrence of the condition is excused to the extent required to prevent forfeiture. The character of the agreement may, as in the case of insurance agreements, affect the rigor with which the requirement is applied. ” (Emphasis added.)

       The court’s opinion in Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 243, 129 N.E. 889 (1921), suggests that the parties may, by express contractual language, “effectuate a purpose that performance of every term shall be a condition of recovery.” That observation is not easy to reconcile with the fact that the record in the case discloses the existence of a clause specifically permitting rejection, whenever discovered, of any work of the contractor that failed “fully” to conform with contract specifications “in every respect.” See J. Dawson, W. Harvey & S. Henderson, Contracts and Contract Remedies (4th Ed. 1982) pp. 816-17.


text:
    State of Connecticut v. Dennis Champagne
    (13192)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.
    Argued January 6
    decision released March 1, 1988

      Robert M. Casale, for the appellant (defendant).

      John M. Massameno, assistant state’s attorney, with whom, on the brief, was Leah Hawley, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

This appeal calls for a determination of the extent to which the state has the authority, in pretrial proceedings, to garnishee mortgage payments that are the cash proceeds of alleged illegal racketeering activity. The defendant, Dennis Champagne, stands accused of having knowingly engaged in a “pattern of racketeering activity” in violation of General Statutes § 53-395 (c) of the Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53-393 et seq. Pursuant to its authority under General Statutes § 53-398 (a) (1), the trial court, after a hearing, rendered an order prohibiting the defendant from “transferring, depleting or otherwise alienating or diminishing” any property that is subject to forfeiture to the state upon his conviction. The defendant brings this interlocutory appeal pursuant to General Statutes § 53-401 (a), claiming principally that the trial court erred in not allowing him to use a portion of the forfeitable property to pay for attorney’s fees he will incur in defending the CORA prosecution. We conclude that there is error and remand for further proceedings.

The following facts and procedural history are undisputed. In July, 1980, the defendant purchased a parcel of real estate at 1 Island Brook Avenue in Bridgeport (Island Brook). This property was subsequently leased to D & T Auto Salvage, Inc., a Connecticut corporation engaged in the automobile repair and junkyard business. The defendant was an officer and stockholder in that corporation. In 1985, the defendant sold the real estate and his stock interest in the corporation. As part of the consideration for the sale, the defendant took back a purchase money mortgage in the amount of $157,000 from the purchaser.

Roughly one year later, the defendant was arrested and charged with racketeering under CORA. The information alleges that the defendant and his associates bought or received stolen cars, which they dismantled and sold at a profit as component parts. The state further charged that this operation, colloquially known as a “chop shop,” was operated at the Island Brook property previously owned by the defendant. As a penalty for operating the “chop shop,” the state seeks the forfeiture of the defendant’s interest in this property, represented by his monthly receipt of payments from the mortgagor of the property.

Prior to the commencement of trial on the criminal charges, the state invoked three separate CORA provisions that authorize the freezing of property that is potentially subject to CORA forfeiture. First, under General Statutes § 53-398 (a) (1), the defendant was prohibited from transferring or depleting any forfeitable property. Second, under General Statutes § 53-398 (a) (2), a receivership was established to collect the defendant’s mortgage payments. Third, under General Statutes § 53-399 (e), a lien on the forfeitable property in favor of the state was established by filing a lien notice in the land records of Bridgeport.

In accordance with the provisions of General Statutes § 53-400 (c), the defendant then filed a motion to discharge or modify the CORA lien notice. The filing of such a motion triggers a statutory requirement that a hearing be held, within ten days, at which the state bears the burden of proving that the property described in the lien notice is subject to forfeiture. General Statutes § 53-400 (c) (1).

The defendant’s motion for discharge or modification alleged lack of probable cause to believe that the mortgage payments attributable to the Island Brook property are forfeitable property. The defendant in his motion urged the trial court to hold that the lien was improper because: (1) the defendant’s property was not forfeitable because he had sold his interest in Island Brook before the initiation of the CORA prosecution; (2) the defendant, being otherwise indigent, needed access to his mortgage income in order to exercise his sixth amendment right to hire counsel of choice; and (3) the application of CORA to the defendant would unconstitutionally expose him to an ex post facto legislative enactment. In his brief in support of his motion, the defendant referred to a further ground for exempting the mortgage payments from pretrial garnishment: a statutory exemption for “net income or profits,” contained in General Statutes § 53-398 (b).

The trial court declined to discharge the lien. The court found probable cause to believe that the property described in the lien notice was forfeitable. In its rejection of the defendant’s claim that a preprosecution conveyance necessarily sheltered property from the forfeiture provision of CORA, the court relied, at least in part, on established Connecticut law that a mortgagee has an ownership interest in the mortgaged property. The court considered the defendant’s sixth amendment right to hire counsel of choice to be outweighed in this case by the state’s interest in deterrence of organized crime and in punishment of illegal conduct. The court lastly found no merit in the defendant’s ex post facto challenge, because the information charged the defendant with racketeering activity both prior and subsequent to the effective date of the statute. The trial court did not address the defendant’s claim that he was entitled to an exemption for “net income or profits” under § 53-398 (b).

On appeal, the defendant renews the claims that he made to the trial court. We will consider first his broad argument that property conveyed in a bona fide, arms-length transaction prior to the initiation of CORA proceedings is per se exempt from forfeiture. We will then turn to a consideration of the more limited contention that the express statutory exemption of “net income or profits” should be construed to protect the defendant’s alleged sixth amendment right to hire counsel of his own choice. We find error only on the latter, more limited, ground.

I

The defendant argues broadly that the forfeiture and pretrial freeze provisions of CORA do not reach property that was transferred prior to the commencement of the prosecution unless the state proves that the transfer was made “with the intention of preventing its forfeiture” as specified under General Statutes § 53-397 (b) (3). Under that section, “the court may set aside” the fraudulent transfer and render appropriate orders “reasonably necessary to protect the rights of any innocent party to any such transfer.” This claim of an implied limitation on CORA’s reach finds support, according to the defendant, in the lack of any CORA provision relating the occurrence of forfeiture back to the time the offense was committed.

The state maintains, to the contrary, that the forfeitable property in this case, the purchase money mortgage on the Island Brook property, falls within the direct purview of forfeitures authorized by CORA. CORA authorizes forfeiture of “[a]ny property . . . acquired, maintained or used in violation of this chapter, including profits derived therefrom and the appreciated value thereof, or, where applicable, the proceeds from the sale thereof ” (Emphasis added.) General Statutes § 53-397 (a) (1). CORA defines “property” as “any property, real or personal, or any interest therein or any beneficial interest of whatever kind.” General Statutes § 53-394 (g). According to the state, the set aside provision of § 53-397 (b) (3) upon which the defendant relies is an unrelated remedy that comes into play only when the “proceeds from the sale thereof” are patently insufficient in relation to the value of the property that was previously transferred.

The issue before us, therefore, is whether, in light of CORA’s language and purpose, its forfeiture provisions encompass the defendant’s mortgage payments as “proceeds from the sale” of real and personal property that was “acquired, maintained or used” in the commission of illegal racketeering activity. In our construction of the applicable statutory language, our goal is to “ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). In reaching this goal, we consider first whether the language of the statute yields a plain and unambiguous resolution. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Any latent ambiguity in the statutory language itself is normally resolved by turning for guidance to the legislative history and the purpose the statute is to serve. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986).

The defendant in this case urges us to apply a further maxim of statutory construction: the criminal sanction of forfeiture must be strictly construed. In support of this claim, the defendant asserts that the penalty of forfeiture is “foreign” to our law. In the unqualified form in which this assertion is stated, it is inaccurate. Recourse to forfeiture in certain cases is an ancient, albeit sparingly used, fixture in our criminal jurisprudence, as a brief review of the historical record demonstrates.

The common law of England recognized two principal types of forfeiture. The valúe of an object, or the object itself, that caused the accidental death of a King’s subject was forfeited to the Crown as a deodand. J. Finkelstein, “The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty,” 46 Temp. L.Q. 169, 197 (1973). The common law also imposed a forfeiture of estate consequent to conviction of a felony or treason. Note, “Bane of American Forfeiture Law—Banished At Last?” 62 Cornell L. Rev. 768, 771-72 (1977). This latter penalty had two especially harsh results: the accused was deemed to forfeit the entirety of his personal and real property upon a judgment of conviction; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-82, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974); and his “ ‘blood was corrupted’ so that nothing could pass by inheritance through his line.” United States v. Grande, 620 F.2d 1026, 1038 (4th Cir.), cert. denied sub nom. Castagna v. United States, 449 U.S. 830, 101 S. Ct. 98, 66 L. Ed. 2d 35 (1980).

Neither type of forfeiture gained currency in this country. The deodand was rejected largely because it was viewed as a superstitious institution that rested on a fiction that the offending object itself was morally afflicted for having caused death. Parker-Harris Co. v. Tate, 135 Tenn. 509, 514-15, 188 S.W. 54 (1916). The broad penalty of forfeiture of estate was also repudiated in Connecticut by the end of the eighteenth century. 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 405; see also article ninth, § 4, of the Connecticut constitution of 1818 (“no conviction of treason, or attainder, shall work corruption of blood, or forfeiture”).

In Connecticut and elsewhere in the United States, forfeiture came to be recognized, not in its common law version, which authorized the wholesale invalidation of property rights, but as an authorized adjunct for the exercise of powers specified in particular criminal statutes. 1 Bishop, Criminal Law (9th Ed. 1923) § 944.1, p. 695; 2 J. Kent, Commentaries on American Law (7th Ed. 1851) p. 464; see also note, “Bane of American Forfeiture Law—Banished at Last?” supra, 779 n.73 and 795 n.162. Swift described Connecticut law as permitting the seizure of “a specific sum [which] is considered to be the punishment itself, and not the consequence of the judgment.” 2 Z. Swift, supra. That law was exemplified by Boles v. Lynde, 1 Root (Conn.) 195 (1790), in which the court reviewed a conviction under a statute criminalizing fishing activity near the mouth of the Connecticut River. Any defendant convicted under the statute forfeited “the seine, ropes and other utensils used in catching fish, contrary to the act.” Id. Instead of seizing the utensils, however, the trial court in Boles v. Lynde assessed a fine equal to the value of the fishing gear. This court reversed, holding that the property itself was subject to forfeiture, not its appraised value. See also Ely v. Bugbee, 90 Conn. 584, 98 A. 121 (1916) (upholding a seizure of a motor boat and eighty rods of gill net); and compare Lawton v. Steele, 152 U.S. 133, 139-40, 14 S. Ct. 499, 38 L. Ed. 385 (1894) (affirming the police power of states to seize implements used in catching fish in violation of law).

While the penalty of forfeiture is therefore not “foreign” to our criminal law, we nonetheless agree with the defendant that such a sanction must be strictly construed. As a general matter, our penal law must be strictly construed to protect fundamental constitutional rights. State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983); see United States v. Enmons, 410 U.S. 396, 411, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973). Forfeiture statutes in particular have been narrowly construed. United States v. Rubin, 559 F.2d 975, 991 (5th Cir. 1977). In applying this rule of construction, however, we must not frustrate the evident design of the legislature. State v. Woolcock, 201 Conn. 605, 630-31, 518 A.2d 1377 (1986).

We turn now to an application of these principles to the issue before us: Does CORA encompass the defendant’s mortgage payments as “proceeds from the sale” of property illegally “acquired, maintained or used” for racketeering purposes? We conclude that CORA authorizes the state to make such property forfeitable whether or not the state can prove an intent to avoid forfeiture.

The forfeiture penalty under CORA is broad in scope. The act provides that, upon conviction, the court “shall render a judgment of forfeiture” authorizing the state to seize “all” forfeitable property. General Statutes § 53-397 (b) (1). By its own terms, the act envisions the possibility of having to seize property that no longer belongs to the defendant in its original form. In such situations, the act provides two mechanisms for recapturing the property or the value thereof. If possible, “where applicable, the proceeds from the sale” of forfeitable property may be seized directly. General Statutes § 53-397 (a) (1). In the alternative, the state may seek to set aside a prior fraudulent transfer under § 53-397 (b) (3). Because this alternative remedy has the potential for adversely affecting innocent third parties, the court is empowered to issue appropriate orders protecting their interests. General Statutes § 53-397 (b) (3).

Although the statutory scheme therefore appears, on its face, to create two unrelated and independent mechanisms for vindicating the state’s right to forfeiture, the defendant urges us to construe them as interwoven. He argues that the state’s right to seize “proceeds from the sale” of forfeitable property under § 53-397 (a) (1) is available only upon proof that the preprosecution transfer that generated the proceeds was made with “the intention of preventing its forfeiture” as provided in § 53-397 (b) (3). The “where applicable” clause in § 53-397 (a) (1) is, according to the defendant, a directive to interpolate the intent requirement of § 53-397 (b) (3) into the “proceeds from the sale” clause of § 53-397 (a) (1). We disagree.

The set aside provision in § 53-397 (b) (3) is addressed to the unique problem of recapturing “property previously owned by the defendant.” (Emphasis added.) The section thereby provides a mechanism for reaching back to undo transfers that thwart the right of forfeiture. Had the defendant in this case transferred the “proceeds from the sale” of his property to a third party, the state would conceivably have a remedy under the set aside provision. That is not this case. It is undisputed that the defendant is himself receiving the mortgage payments, which clearly come within the definition of “property” in § 53-394 (g). Because the defendant continues to possess the “property” that is being forfeited, this forfeiture is unaffected by § 53-397 (b) (3), which applies only to “property previously owned.”

The absence of a specific provision relating the occurrence of forfeiture back to the commission of the offense does not, contrary to the defendant’s argument, compel a different conclusion. Under the doctrine of relation back, the state may exercise a right to forfeiture as of the date of the commission of the offense, at which time ownership is said to vest in the government. United States v. Stowell, 133 U.S. 1, 16-17, 10 S. Ct. 244, 33 L. Ed. 555 (1890); Florida Dealers & Growers Bank v. United States, 279 F.2d 673, 676 (5th Cir. 1960). Under the forfeiture scheme enacted pursuant to CORA, however, this general doctrine has been superseded by a statutory framework for identifying and seizing forfeitable property. General Statutes §§ 53-397, 53-398.

Our conclusion that bona fide preprosecution transfers are not per se exempt from forfeiture is consistent with CORA’s legislative history. In urging passage of the bill, Senator Howard T. Owens, Jr., described a hypothetical racketeer who takes a $50,000 profit gained in a cocaine transaction and invests the money in real estate, which then appreciates in value to $350,000. By subjecting the entire appreciated value of the real estate to forfeiture, he stated, “we would not allow [racketeers] to profit from their illegal activity.” 25 S. Proc., Pt. 12, 1982 Sess., p. 3914. Further, in the House of Representatives, Representative Richard D. Tulisano stated that the forfeiture provision subjected “whatever ill gained money may be invested in, to forfeiture. There are similar laws in the federal government and some other states as well as Puerto Rico.” 25 H.R. Proc., Pt. 14, 1982 Sess., p. 4540. Both statements indicate that the General Assembly intended CORA to track the progression of property “acquired, maintained and used” in illegal racketeering activity. This tracking of illicit funds occurs under federal anti-racketeering law as well because its analagous purpose is to “remove the profit from organized crime by separating the racketeer from his dishonest gains.” Russello v. United States, 464 U.S. 16, 28, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). The trial court correctly denied the defendant’s motion to discharge the CORA lien on this ground.

II

The defendant’s more limited claim for modification of the CORA lien rests on the statutory exemption contained in General Statutes § 53-398 (b). He maintains that he is entitled to retain a portion of the mortgage payments because this statute provides: “Nothing in this section shall be construed as affecting the right of the defendant to receive any net income or profits resulting from the use and ownership of such property belonging to him for which there is probable cause to believe is subject to forfeiture under this chapter until a final judgment of forfeiture is rendered.” According to the defendant, at least until a final judgment of forfeiture has been rendered the interest component of each mortgage payment qualifies as “net income or profits” within this exemption. In opposition, the state asserts that, as “proceeds,” the mortage payments are forfeitable under § 53-397 (a) in their entirety. We agree with the defendant.

General Statutes § 53-398 as a whole expresses a clear legislative design for the balanced judicial supervision of putatively forfeitable property during the preconviction stage of a CORA prosecution. Subsection (a) addresses itself to the jurisdiction of the Superior Court to render orders preserving the assets of a defendant prior to conviction. A Superior Court may render a freeze order pursuant to subdivision (1) only upon proof of “probable cause” that the property is subject to forfeiture under the act. An order appointing a receiver under subdivision (2) must conform to established procedures under chapter 920 of the General Statutes. The court is further authorized under subdivision (3) to allow a defendant to transfer or deplete forfeitable property upon the posting of adequate security. The rights of innocent third persons may be protected pursuant to subdivision (4). Each of these subdivisions vests discretion in the trial court to take appropriate action on a case-by-case basis.

In subsection (b) of § 53-398, however, the language of the statute is mandatory: “Nothing in this section shall be construed as affecting the right of the defendant to receive any net income or profits” arising from his use or ownership of forfeitable property. This reservation of rights may well have reflected a legislative decision that, in light of the presumption of innocence in criminal cases and the severity of the forfeiture penalty upon conviction, a CORA defendant should be afforded some relief during the preconviction phase of prosecution.

We do not agree with the state that the broad language contained in § 53-397 (a) is controlling. “As a matter of statutory construction, specific statutory provisions are presumed to prevail over more general statutory provisions dealing with the same overall subject matter. McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981); Edmundson v. Rivera, 169 Conn. 630, 635, 363 A.2d 1031 (1975).” State v. Torres, 206 Conn. 346, 359, 538 A.2d 185 (1988); see also 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 46.05. Because the legislature has specifically resolved this issue in favor of the defendant by clear and unambiguous language, we must give full effect to the terms of the statute. University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 399, 512 A.2d 152 (1986); Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986). We therefore conclude that the defendant is entitled to receive the “net income or profits” from the mortgage payments in this case.

Our holding does not unreasonably impair the state’s right of forfeiture under CORA. If the defendant is ultimately convicted for having engaged in illegal racketeering activity through the Island Brook enterprise, the state may then acquire the entire remaining “proceeds from the sale” of the property pursuant to § 53-397 (a) (1). The definition of “proceeds” as “what is produced by or derived from something (as a sale, investment, levy, business) by way of total revenue: the total amount brought in”; N. Webster, Third New International Dictionary; certainly encompasses at least the interest component of the mortgage payments currently received by the defendant. To the extent that the state’s seizure is diminished in the interim because of the effect of § 53-398 (b), we can only conclude that this diminution is the consequence of a legislative decision to balance the competing interests involved.

Indeed, the legislature’s good judgment is underscored in this case by the implications of the statutory exemption for the defendant’s argument that access to his mortgage payments is constitutionally required in order to protect his sixth amendment right to retain counsel of his choice. A similar constitutional claim arising under forfeiture provisions of the federal anti-racketeering act has not as yet been definitively resolved in the federal courts. Compare United States v. Harvey, 814 F.2d 905, 918-26 (4th Cir. 1987), rev’d in part en banc sub nom. In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir. 1988), and United States v. Monsanto, 836 F.2d 74 (2d Cir. 1987), with United States v. Nichols, 654 F. Sup. 1541, 1556-59 (D. Utah 1987); United States v. Rogers, 602 F. Sup. 1332, 1348-49 (D. Colo. 1985); see K. Brickey, “Forfeiture of Attorneys’ Fees: The Impact of RICO and CCE Forfeitures on the Right to Counsel,” 72 Va. L. Rev. 493 (1986); comment, “RICO and the Forfeiture of Attorneys’ Fees: Removing the Adversary From the Adversarial System?” 62 Wash. L. Rev. 201 (1987). We need not, however, address such a constitutional claim on its merits when the statute itself may contain sufficient redress for the defendant. As is customary, we “ ‘follow the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.' Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980).” State v. Torres, supra, 362. It is, nonetheless, relevant to our construction of the statutory exemption that our interpretation avoids placing the forfeiture provisions of CORA in immediate constitutional jeopardy. French v. Amalgamated Local Union 376, 203 Conn. 624, 636-37, 526 A.2d 861 (1987); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981).

On the present record, we cannot determine what part, if any, of each mortgage payment is “net income or profit” within § 53-398 (b) or whether the moneys that fall within the exemption therein provided will be sufficient to pay the attorney’s fees that the defendant will incur in defending himself from the CORA violations with which he has been charged. A remand is therefore required.

We note initially that the interest component of each payment would fall squarely within the definition of “net income” under this statutory exception. Cf. General Statutes § 12-213; Sturtevant v. Sturtevant, 146 Conn. 644, 648, 153 A.2d 828 (1959). Interest is ordinarily taxable as net proceeds under federal internal revenue law; 26 U.S.C. §§ 61, 63 (1982); specifically, interest received on a mortgage debt is taxable as net income. 1 J. Merten, Law of Federal Income Tax (1986) § 6A.14.

The mortgage in this case obligates the mortgagor to make 120 monthly payments of $2072.78 on a principal debt of $157,000 to be repaid with interest at the rate of 10 percent. Over the lifetime of the mortgage, the defendant will therefore be entitled to receive a total sum of $248,733.60 over a period of 120 months. Once the principal amount of $157,000 is subtracted, interest accounts for $91,733.60 of the total amount due on the note. The mortgage note does not, however, indicate how the interest is to be apportioned over the life of the loan. We do not know, therefore, what portion of each $2072.78 payment to attribute to interest, and hence to “net income or profits” under the statutory exemption.

On remand, the trial court is directed to hold a hearing to determine what portion of the defendant’s mortgage payments constitutes interest and thus qualifies for the exemption under § 53-398 (b) and whether the income made available to the defendant by the statute will suffice to afford him reasonable access to counsel of his choice. If the defendant is dissatisfied with either aspect of this determination, he will have a renewed right to further interlocutory appellate review of these claims.

There is error, the judgment is vacated and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 53-395 (e) provides: “It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity or through the collection of an unlawful debt.”

       General Statutes § 53-398 (a) (1) provides: “COURT orders, (a) At any time in any prosecution under this chapter, the superior court shall have jurisdiction to render and may render the following orders: (1) An order prohibiting the defendant from transferring, depleting or otherwise alienating or diminishing any property of his which there is probable cause to believe is subject to forfeiture under this chapter.”

       General Statutes § 53-401 (a) provides: “appeal of orders, stay of execution, filing of orders, (a) Any order rendered as provided in section 53-398 or 53-400 shall be deemed a final judgment for the purpose of appeal, which, notwithstanding section 54-96, may be taken by the state or the defendant.”

       A purchase money mortgage is “one taken back by the seller for part of the purchase money.” R. Kratovil & R. Werner, Modern Mortgage Law and Practice (2d Ed. 1981) § 19.01.

       The record reveals that a cash downpayment of undisclosed amount was also received by the defendant pursuant to the sale. Because the state has not yet claimed a right to forfeit this money, it plays no role in our disposition of this case.

       General Statutes § 53-398 (a) (2) provides that a trial court may render “[a]n order appointing a receiver, in accordance with chapter 920 and the rules of court relating thereto which are not inconsistent with this chapter, over such property which there is probable cause to believe is subject to forfeiture under this chapter. Such receiver shall have all powers and obligations, subject to the supervision of the court, that exist under the statutes, the common law and the rules of court relating thereto, which are not inconsistent with this chapter, and shall be compensated with funds appropriated to the judicial department in an amount that the court determines is reasonable . . . .”

         General Statutes § 53-399 (e) provides: “The filing of a CORA lien notice creates, from the time of its filing, a lien in favor of the state on the property therein described of the defendant named in the notice as provided in subdivision (1) of subsection (b) of this section.”

       General Statutes § 53-400 (c) provides: “At any time after a CORA lien notice has been filed by a state’s attorney or his designee pursuant to this chapter, the defendant or any state’s attorney may, by motion to the court in which such action is pending, seek a discharge or modification of such notice.”

       General Statutes § 53-400 (c) (1) provides: “At any time after a CORA Ken notice has been filed by a state’s attorney or his designee pursuant to this chapter, the defendant or any state’s attorney may, by motion to the court in which such action is pending, seek a discharge or modification of such notice.
      “(1) The clerk shall, upon the filing of such motion, immediately set a date for hearing, which date shall be not less than five nor more than ten days after the motion has been filed, and shall notify the parties thereof. At the hearing, the court shall determine whether there is probable cause to believe (A) that any property owned by the defendant is covered by the CORA lien notice; and if so, (B) that such property or any additional property not yet covered by such notice but sought by the state to be included therein is subject to forfeiture under this chapter. The state shall bear the burden of proof at such hearing and may present to the court affidavits, testimony under oath, or other evidence that would establish such probable cause. The defendant may appear and be heard on the issue. If the court concludes that, based on the evidence, there is no probable cause to believe that any property or a portion thereof, which is covered by the CORA lien notice is subject to forfeiture under this chapter, it shall discharge the CORA lien notice or shall modify such notice so that it applies only to the property which there is probable cause to believe is subject to forfeiture under this chapter.”

       In an affidavit filed with his motion to discharge the lien, the defendant averred that his “sole source of income” consists of monthly payments from the mortgagor and that he would be “wholly without funds to retain counsel of [his] choice” if the state were allowed to garnish the payments. On appeal, the state does not contest these representations.

       General Statutes § 53-397 (b) (3) provides: “If the court or the jury, as the case may be, concludes that property previously owned by the defendant would have been subject to forfeiture under this chapter but for the fact that it was transferred by the defendant prior to any judgment of forfeiture with the intention of preventing its forfeiture under this chapter, the court may set aside such transfer. The court may also render any other appropriate order reasonably necessary to protect the rights of any innocent party to any such transfer.”

       General Statutes § 53-397 (b) (1) provides: “Upon conviction of a person under this chapter the court or the jury, as the case may be, before which the defendant was tried shall determine the extent to which any property of such person is subject to forfeiture under this chapter and shall hear evidence thereon. Upon a determination thereof, the court shall render a judgment of forfeiture and authorize the chief state’s attorney to seize in the name of the state all property subject to forfeiture under this chapter upon such terms or conditions, relating only to such matters as the time and method of such seizure, as the court shall deem proper.”

       General Statutes § 53-397 (a) (1) provides: “penalty, forfeiture of PROPERTY. DISPOSITION OF SEIZED PROPERTY. APPOINTMENT OF RECEIVER, (a) A person who violates any provision of this chapter shall be imprisoned for a definite term of not less than one year nor more than twenty years or may be fined not more than twenty-five thousand dollars, or both, and shall forfeit to the state: (1) Any property he has acquired, maintained or used in violation of this chapter, including profits derived therefrom and the appreciated value thereof, or, where applicable, the proceeds from the sale thereof.”

       See footnote 11, supra.

       General Statutes § 53-394 (g) provides: “ ‘Property’ includes any property, real or personal, or any interest therein or any beneficial interest of whatever kind.”

       The only reference to “relation back” in the text of CORA is found in General Statutes § 53-402 (c), which provides that “[t]he title of the state to forfeited property shall, in the case of real property or a beneficial interest, relate back to the date on which a CORA lien notice” was filed. Nothing in this provision, which deals only with the narrow question of title, purports to define the scope of the forfeiture provisions of CORA. That definition resides principally in General Statutes § 53-397 (a).

         In its application for an arrest warrant in this case, the state included a copy of the mortgage note given by the mortgagor to the defendant. This document furnishes the following information: “[F]or value received” the mortgagor promised to pay the defendant the sum of $157,000 “with interest at the rate of Ten (10) PERCENT per annum .... Said principal and interest is payable in One Hundred Twenty (120) successive monthly payments of Two Thousand Seventy Two and 78/100 ($2072.78) DOLLARS, commencing one (1) month from the date hereof, and the same each month thereafter until the principal and interest are fully paid . . . .”