text:
    Yale Rubin v. Shirley A. Rubin
    (13002)
    Peters, C. J., Healey, Shea, Santaniello and Schaller, Js.
    Argued March 10
    decision released June 30, 1987

      Francis M. Bosze, for the appellant (plaintiff).

      Pasquale Young, for the appellee (defendant).
   Shea, J.

The Appellate Court upheld the judgment of the trial court, in an action for dissolution of marriage, ordering the plaintiff husband to pay to the defendant wife a share of the assets he may acquire under his mother’s will and on termination of a revocable inter vivos trust created by her. Rubin v. Rubin, 7 Conn. App. 735, 510 A.2d 1000 (1986). This court granted the plaintiff’s petition for certification and now addresses the issue of the propriety in a marriage dissolution judgment of such a contingent assignment of property that one party expects to acquire. We reverse the judgment of the Appellate Court.

The facts relating to the issues on appeal are not disputed. The parties were married in 1950. Due to the excessive use of alcohol by the plaintiff, the marital relationship broke down and the parties separated in 1978. The plaintiff, in his complaint, and the defendant, in her cross complaint, each sought a dissolution of the marriage and an assignment of the other’s estate pursuant to General Statutes § Jeb-Sl. Additionally, the defendant sought alimony. At the time of the dissolution decree in 1985, the plaintiff was sixty-two years old and the defendant was fifty-six years old. There were no minor children of the marriage.

The plaintiff, who had received a degree in business administration before taking over his father’s scrap metal business, averred in his financial affidavit that he had no income from wages because his “business is now defunct.” He admitted, however, that he had been receiving an annual gift of $10,000 from his mother, and an additional $6000 per year from a trust fund set up by his sister’s husband. By its terms, that trust will expire in 1988 unless its life is extended by the settlor. The plaintiff listed total assets of $95,050, which consisted of a home in Hamden, a car, a life insurance policy, and various items of personal property. His total liabilities of $17,280 included a $10,000 debt to his mother, and his estimate of weekly expenses of $513.22 included a contribution to the defendant of $105.76.

The financial affidavit of the defendant, who had received a high school education, showed a total weekly income of $55, total assets consisting of a car valued at $200, and total liabilities of $5343, which principally-represented the cost of medical care for a chronic ailment. The defendant’s weekly living expenses amounted to $252. Although the defendant has some work experience in the field of interior design, her prospects for future earnings are dim.

The plaintiff is the residuary beneficiary of a revocable inter vivos trust created by his mother, which is funded with approximately $225,000 in securities. At oral argument the plaintiff acknowledged that, for a while, money from his mother’s trust fund had supported the marriage of the parties. Additionally, the plaintiff is one of two equal residuary legatees under the will executed by his mother, whose assets at the time of the dissolution were approximately $725,000. See generally Rubin v. Rubin, supra, 736-38.

In its decree dissolving the marriage, the trial court ordered (1) that the plaintiff pay the defendant as periodic alimony the weekly sum of $150, (2) that the plaintiff name the defendant as the irrevocable beneficiary of his $10,000 life insurance policy, (3) that the family residence, valued at $60,000 in the plaintiff’s affidavit, and almost all of its contents be awarded to the defendant, (4) that the plaintiff pay all current debts of both parties, and (5) that the plaintiff pay to the defendant’s counsel the sum of $1000 in attorney’s fees. Id., 738. In addition the trial court ordered that the plaintiff pay to the defendant one third of the net estate that he may receive “from either the trust created by his mother and from her by way of a testamentary gift or other form of inheritance.” On appeal the plaintiff challenges this contingent order and also claims that the court erred in allowing into evidence the trust agreement and his mother’s deposition, which concerned her will and assets, and seeks a new trial at which such evidence would be excluded. We conclude that the contingent order cannot be sustained either as an assignment of property under General Statutes § 46b-81 or as an award of alimony under General Statutes § 46b-82. We also hold that the evidence concerning the plaintiff’s expectancy was inadmissible in respect to the other issues in the case and, therefore, that a new trial is necessary.

I

Our analysis of this case requires an understanding of the distinction between alimony and a property division. “The purpose of alimony is to meet one’s continuing duty to support; Wood v. Wood, 165 Conn. 777, 784, 345 A.2d 5 (1974); while the purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his. Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).” Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). “The mode of the allowance or the name by which it is called does not determine its character, since the true test is the purpose for which it is made.” Maxwell v. Maxwell, 11 Conn. Sup. 205, 207 (1942). Although alimony is usually payable periodically, whereas a property division usually is effectuated by a single transfer or payment, lump sum alimony awards as well as property divisions carried out by installment payments have often been decreed. “The form of the order therefore does not always reveal its true substance.” H. Clark, Domestic Relations in the United States (1968) § 14.8, p. 450. “It is easy to see how, relying upon a vague statutory power, the courts have come to blur the distinction between alimony orders and divisions of property.” Id., p. 451.

While a divorce court, as a court of equity, has been deemed to possess the inherent power to adjudicate the property rights of the parties before it; see Singer v. Singer, 165 Ala. 144, 148, 51 So. 755 (1910); Cole v. Cole, 142 Ill. 19, 26, 31 N.E. 109 (1892); Carnahan v. Carnahan, 143 Mich. 390, 396-97, 107 N.W. 73 (1906); the power of a court to transfer property from one spouse to the other must rest upon an enabling statute. See Connolly v. Connolly, 191 Conn. 468, 476, 464 A.2d 837 (1983); Valante v. Valante, 180 Conn. 528, 532, 429 A.2d 964 (1980); see also Riggers v. Riggers, 81 Idaho 570, 573-74, 347 P.2d 762 (1959); Emery v. Emery, 122 Mont. 201, 224, 200 P.2d 251 (1948). Authority in Connecticut for such a transfer of property is found in General Statutes § 46b-81, which provides in part that “[a]t the time of entering a decree . . . dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other .... In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the . . . needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.”

In Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978), this court construed the predecessor of § 46b-81, despite the reference to “the opportunity ... for future acquisition of capital assets,” not to permit the consideration of evidence of a “potential inheritance.” We upheld the ruling of the trial court sustaining an objection to the admission of testimony regarding the net worth of the plaintiff wife’s mother, who had prepared a will naming the wife as a beneficiary. We stated: “The court’s ruling cannot be said to be an abuse of discretion since under the circumstances surrounding the vesting of a ‘potential inheritance of the wife,’ as the defendant describes it, the expectancy according to the testimony elicited and appearing in the finding and transcript is, at best, speculative. ‘ “Expectancy” is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist.’ Johnson v. Breeding, 136 Tenn. 528, 529, 190 S.W. 545 [1916].” Krause v. Krause, supra, 365.

Distinguishing Krause from the present case, the Appellate Court stated: “Superficially, and resting on its own language, Krause would appear to bar the evidence and orders involved in this case. A fundamental difference, however, between Krause and this case distinguishes its holding. In Krause, the defendant was seeking a present order based on a totally speculative and uncertain future happening, while, in the present case, the defendant spouse was awarded a future share contingent on the plaintiffs receipt of certain benefits.” (Emphasis in original.) Rubin v. Rubin, supra, 740. Because the Appellate Court viewed Krause, which dealt only with issues of property transfer, as the precedent most apposite to the disposition of the present case, its decision may plausibly be read to regard the challenged order, that the plaintiff pay to the defendant one third of the net estate he may acquire from his mother’s will or inter vivos trust, as similarly representing a property transfer.

We decline to adopt the position that the challenged order in the present case, involving a contingent award of expected property, can be upheld as a property transfer authorized by § 46b-81. As we have stated, § 46b-81 authorizes the court to assign to either spouse “all or any part of the estate of the other,” and prescribes that, in fixing the value of such “property,” the court shall consider, inter alia, “the opportunity of each for future acquisition of capital assets and income.” The terms “estate” and “property,” as used in the statute, connote presently existing interests. “Property” entails “interests that a person has already acquired in specific benefits.” Board of Regents v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); see also Millard v. Connecticut Personnel Appeal Board, 170 Conn. 541, 546, 368 A.2d 121 (1976).

Where the trial court had ordered the defendant husband, whose property had a net worth of $62,112.99 but who was expecting an inheritance valued at $198,045, to pay to the plaintiff wife, inter alia, the sum of $100,000 within four years of the decree of divorce, the Supreme Court of Wyoming reversed. Storm v. Storm, 470 P.2d 367 (Wyo. 1970). The Storm court stated: “Equitably speaking, it is reasonable to consider the inheritance under consideration the same as future property. With respect to future property, we think the rule must be that, when a court divides property incidental to the granting of a divorce, the court is limited by the amount of property in its hands for division and a mere expectancy is not subject to division.” Id., 370; accord Loeb v. Loeb, 261 Ind. 193, 201-202, 301 N.E.2d 349 (1973); Davidson v. Davidson, 19 Mass. App. 364, 374-75, 474 N.E.2d 1137 (1985). We agree with the view that the relevance of probable future income “in determining the fair and equitable division of existing property . . . does not establish jurisdiction to make allowances from . . . property other than that held at the time.” Beres v. Beres, 52 Del. 133, 137-38, 154 A.2d 384 (1959). Even where a dissolution judgment has become final, it has been held that the provision of the decree awarding the wife one half of any property the husband might receive by will or inheritance from his father, who died ten years after the dissolution, was “utterly void and ineffectual,” because the husband’s expectancy was not part of his estate from which such an allowance could be made. Meeks v. Kirkland, 228 Ga. 607, 608, 187 S.E.2d 296 (1972); see also Trammell v. West, 224 Ga. 365, 162 S.E.2d 353 (1968).

We are not persuaded that the contingent nature of the award of expected property in the present case brings that award within the ambit of § 46b-81. That the plaintiff must pay the defendant a one third share of the assets he may acquire under his mother’s will and on termination of her inter vivos trust only if and when this acquisition materializes does not transmute such expected assets into “property” of the plaintiff. We note, moreover, that property distributions, unlike alimony awards, cannot be modified to alleviate hardships that may result from enforcement of the original dissolution decree in the face of changes in the situation of either party. See Connolly v. Connolly, supra, 477; H. Clark, supra, § 14.8, p. 449, and § 14.9, p. 453. The present order, while contingent, is definite; yet the date upon which it may take effect, as well as the situation of the parties upon that date, is necessarily uncertain. Until our legislature amends § 46b-81 to authorize contingent transfers of expected property, we shall not read such an intent into the statute.

II

We have concluded that the award to the defendant of a share of the plaintiff’s expectancy cannot be sustained as a permissible transfer of property under § 46b-81. We must nevertheless consider whether the challenged order can be supported upon some alternative ground. See Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987); Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980). If the Appellate Court has erroneously upheld the award as an assignment under § 46b-81, we would properly affirm the judgment “if the same result is required by law.” A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).

General Statutes § 46b-82, which currently authorizes the court to order alimony, neither defines the term “alimony” nor restricts the scope of the award. In conferring discretion upon the court to determine “whether alimony shall be awarded, and the duration and amount of the award,” § 46b-82 directs the court to consider “the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . . ” We have often stated that the type and amount of alimony awarded under a decree dissolving a marriage is within the sound discretion of the trial court. Tworek v. Tworek, 170 Conn. 159, 160, 365 A.2d 392 (1976); Krieble v. Krieble, 168 Conn. 7, 7, 357 A.2d 475 (1975).

We are not aware of any principle of law that necessarily precludes a trial court, in exercising its discretion to fashion an alimony award, from ordering a payment that is contingent upon some future event. Such contingent awards often appear in judgments that have incorporated agreements of the parties that provide for adjustment of the amount of support or alimony to be paid in relation to the earnings of the parties. For instance, in Silver v. Silver, 170 Conn. 305, 365 A.2d 1188 (1976), this court had occasion to construe such an alimony provision taken from the parties’ separation agreement that included the following: “ ‘In the event the defendant’s salary shall during any future calendar year exceed his salary for the current calendar year by Three Thousand Dollars ($3000.00) or more, then the defendant agrees [sic] to pay to the plaintiff, as additional alimony, 15% of such increase over his salary for the current year, such additional alimony to be paid on or before January 31 of the year following the year in which such increase shall have occurred.’ ” Id., 306; see also Lescher v. Lescher, 679 S.W.2d 463, 465-66 (Tenn. App. 1984). We do not regard the consent of the parties to be essential to the validity of a contingent alimony award, although it may be relevant to the wisdom of such an order.

It must be remembered, however, that an alimony order is predicated upon the obligation of support that spouses assume toward each other by virtue of the marriage. A judgment contingently awarding a share of one spouse’s expectancy to the other may often prove illusory. Because such an order is not supportable as an assignment of property, it ordinarily terminates upon the death of either spouse. H. Clark, supra, § 14.9, pp. 461-63; see McCann v. McCann, 191 Conn. 447, 452, 464 A.2d 825 (1983); McDonnell v. McDonnell, 166 Conn. 146, 150, 348 A.2d 575 (1974); Harrison v. Union & New Haven Trust Co, 147 Conn. 435, 440, 162 A.2d 182 (1960). The circumstances of the parties may have changed substantially by the time the expectancy is fulfilled, warranting a modification of the order. Continuing orders, such as those for periodic alimony, are subject to modification for changes in the circumstances of either party. General Statutes § 46b-86; Connolly v. Connolly, supra, 473; Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977). The expectancy may never be realized because of diminution of the donor’s wealth or a change in the planned disposition of his property. Indeed, the existence of an order that a prospective beneficiary share his future inheritance with his former spouse may well inhibit the donor in selecting the recipients of his estate or induce resort to various devices, such as spendthrift trusts, in order to circumvent the alimony award. Relying upon such an illusory order, a court may assume that adequate provision has been made for a needy spouse and neglect to provide more dependable means of support, such as a sufficient periodic alimony order or a greater share of assets owned at the time of the decree. To uphold the award of a share of an expectancy as contingent alimony might fairly be viewed as sanctioning in a different guise an assignment of property not then within the jurisdiction of the court, which we have concluded § 46b-81 does not authorize.

The trial court may well have thought it had gone as far as possible in ordering the conventional forms of alimony, such as the order of $150 per week, and that the defendant had been given the maximum share of the total assets of the parties that could be justified. The court properly was concerned that the difficult economic circumstances of the parties at the time of the judgment made it impossible to provide adequate support for the defendant wife and that this deficiency in the award should be redressed whenever the plaintiff should acquire his anticipated wealth. We can perceive no advantage, however, in attempting to make such an adjustment prospectively rather than wait until the contingency has been resolved. Because periodic alimony orders are modifiable when changes in circumstances occur, the increase in the plaintiffs financial ability that may occur upon his mother’s death would constitute a change of circumstances ordinarily warranting an increase in the weekly alimony payment order corresponding to the defendant’s support requirements at that time. Shrager v. Shrager, 144 Conn. 483, 487, 134 A.2d 69 (1957); H. Clark, supra, § 14.9, pp. 460-61. The court will be in a far better position to make an appropriate order once the plaintiff has acquired the property he expects to receive from his mother. His own needs, as well as those of the defendant, may then be different from those presented at trial. Our modification statute, General Statutes § 46b-86, reflects the legislative judgment that continuing alimony payments should be based on current conditions. Any prediction of what justice between the parties may require when a future event may occur is likely to be less well considered than a determination made after the event, when speculation as to the circumstances involved has been supplanted by actuality. We conclude, therefore, that in the absence of some necessity not presented by this case it is erroneous to award alimony in the form of a share of the assets a spouse may receive upon fulfillment of an expectancy. Accordingly, we reverse the judgment of the Appellate Court upholding such an award.

Ill

Our conclusion that the award of a share of the plaintiff’s prospective acquisition of property from his mother cannot be upheld as an assignment of property of as alimony does not fully resolve the issue concerning the admissibility of evidence relating to his expectancy. The plaintiff claims not only that the provision of the judgment containing this award is invalid, but also that he is entitled to a new trial because the evidence relating to his mother’s wealth should have been excluded and its admission over his objection “affected the outcome of the entire case.” We must therefore decide whether such evidence may be considered in making a property division of presently owned property or in awarding alimony.

In Krause v. Krause, supra, 364-65, this court upheld a ruling of the trial court that excluded evidence of the potential inheritance of a wife from her mother, claimed to be relevant to the husband’s demand for an assignment of a share of the property held by his wife. “Unlike future earnings, prospects for increase in the husband’s property through gift or inheritance generally may not enter into the computation of alimony. Such sources of wealth are outside the husband’s control and subject to the will of the donor or relative.” H. Clark, supra, § 14.5, p. 444. As we indicated in Krause, we approve the view of those courts that have held evidence of a possible future inheritance to be inadmissible for the purpose of a property assignment or alimony award. Whitney v. Whitney, 164 Cal. App. 2d 577, 330 P.2d 947 (1958); McCloskey v. McCloskey, 359 So. 2d 494 (Fla. App. 1978); Turi v. Turi, 34 N.J. Super. 313, 112 A.2d 278 (1955); see Hillery v. Hillery, 342 Mass. 371, 173 N.E.2d 269 (1961). Many of the reasons we have advanced for invalidating the award to the defendant of a share of the plaintiff’s expectancy as either an assignment of property or as alimony apply also to the consideration of such evidence in respect to other issues. To base a division of property, which is not ordinarily subject to modification, upon the possibility of a future inheritance might often prove to be unfair in the light of subsequent events. A periodic alimony order, disobedience of which invokes the penalty of contempt, should not exceed the current financial ability to meet it of the party on whom it is imposed and, therefore, should not be premised upon predictions as to future income that depend wholly upon the generosity of others for realization. The authority of a court to modify a periodic alimony order to correspond with changes in the financial circumstances of the obligor removes any necessity for considering such a contingency as the possibility of a future inheritance.

The Appellate Court concluded that the prohibition expressed in Krause against the introduction of evidence of a possible inheritance by a spouse had been modified by our decision in Anderson v. Anderson, 191 Conn. 46, 55-57, 463 A.2d 578 (1983), where we upheld a finding that a wife had the possibility of future acquisitions of capital assets based upon evidence of substantial contributions made during the marriage by her mother and brother. The Anderson opinion, however, recognized the continuing viability oí Krause in respect to consideration of “an expectancy of an inheritance,” but held that consideration of substantial gratuities received from relatives in the past was, nevertheless, permissible in formulating financial orders relating to a dissolution of marriage. Although reliance upon evidence of past gifts to a spouse from relatives carries some of the risks inherent in the consideration of a future inheritance, we view them as less significant. At least where the past gratuities have been made on a regular basis during the marriage, as in the present case where the plaintiff admittedly was receiving income of $6000 per year from the trust established by his brother-in-law and a $10,000 annual gift from his mother, the court may reasonably assume that those contributions will continue. If they should terminate, any periodic alimony award may be modified, although an assignment of property based upon the assumption that the contributions would continue could not be revised. We have found error in an alimony award to a wife predicated upon a finding that a husband would continue to receive a consistent and dependable flow of funds based upon sums his mother had advanced sporadically during the marriage for various purposes. Schmidt v. Schmidt, 180 Conn. 184, 187, 429 A.2d 470 (1980). Where financial orders are based upon a possible inheritance, which may never materialize in any form or at any time remotely corresponding to the trial court’s assumptions, the risk of inequity is substantially greater. Furthermore, evidence of past gratuities does not inevitably entail the necessity of probing into the personal financial affairs of persons who have no other involvement in the marital dispute before the court than their relationship to one of the parties. We continue to adhere to the Krause view that evidence of a prospective inheritance is inadmissible in a dissolution of marriage proceeding. See Fattibene v. Fattibene, 183 Conn. 433, 443, 441 A.2d 3 (1981). Our conclusion that the trial court erred in admitting evidence of the plaintiff’s possible inheritance from his mother requires that we order a new trial rather than simply modify the judgment by invalidating the award of a share of his expectancy. It is impossible to ascertain the extent to which this inadmissible evidence may have affected the other financial orders, but we cannot regard the admission of the evidence as harmless error, except with respect to the portion of the decree dissolving the marriage.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to set aside the judgment, except for the provision thereof dissolving the marriage, and to order a new trial on the financial issues.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). assignment of property and transfer of title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The contingent assignment of property included in the dissolution judgment applies only to the “net estate which [the plaintiff] receives from either the trust created by his mother and from her by way of a testamentary gift or other form of inheritance.” Thus, the order does not involve the trust established by the husband of the plaintiffs sister.

       We note that in Krause the trial court’s conclusion that neither party was entitled to alimony support payments was not challenged. See Krause v. Krause, 174 Conn. 361, 362, 387 A.2d 548 (1978).

       “[General Statutes] See. 46b-82. (Formerly Sec. 46-52). alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

        Silver v. Silver, A-606, Rec. & Briefs, Position 1, Rec. p. 20.

       The Appellate Court also relied upon Thompson v. Thompson, 183 Conn. 96, 438 A.2d 839 (1981), where we found the admission of evidence of a potential inheritance to be a harmless error. The evidence in Thompson tended to show that the plaintiff wife and her mother jointly owned, inter alia, a savings account in the amount of $9886.93, and several savings certificates in the aggregate amount of $21,786.65. The plaintiff offered evidence indicating that she was to receive one fourth of her mother’s estate upon her death. Addressing the plaintiffs claim that the trial court had erred in relying upon the evidence of the potential inheritance, we stated: “Faced with the bare fact of joint ownership in the savings accounts, the court could well have treated the accounts as the plaintiff’s assets. By taking into consideration the proffered evidence showing that only one quarter of these assets were destined for the plaintiff, the court diminished the size of her estate. This, of course, worked to her advantage. Because the court’s action was favorable to the plaintiff, it is not a ground for reversal. See Maltbie, Conn. App. Proc. § 39.” Id., 99.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Louis Rouleau
    (12934)
    Peters, C. J., Healey, Shea, Santaniello and Kulawiz, Js.
    Argued February 6
    decision released June 30, 1987

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

      AnnH. Rubin, special assistant state’s attorney, with whom, on the brief, was John Connelly, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

After a trial to the jury, the defendant, Louis Rouleau, was found guilty of one count of each of the following crimes: aiding robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and SSa-S; conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-48; aiding kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-92 (a) and 53a-8; and conspiracy to commit murder in violation of §§ 53a-54a and 53a-48 (a).

On appeal, the defendant’s sole claim is that the trial court erred in its instructions to the jury on the defense of duress. General Statutes § 53a-14. Essentially, the defendant claims that the trial court erred in its instruction on this nonaffirmative defense because it did not instruct that the burden of proof was on the state to disprove that defense beyond a reasonable doubt and/or because it stated that the burden of proof on that defense was on the defendant. In addition to claiming plain error, he also maintains that these errors violated his constitutional rights and, alternatively, his statutory rights. We find error in the charge on duress and order a new trial except for the count on which the defendant was convicted of conspiracy to commit robbery, where we deem the error to have been harmless beyond a reasonable doubt.

Initially, we note that the defendant did not submit a request to charge on the applicable burden and standard of proof and did not except to the court’s instruction on duress. The state therefore contends that the claimed error is not reviewable either as plain error; see Practice Book § 4185 (formerly § 3063); or under the Evans bypass rule. See State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The defendant claims review under both. We will review this claim under the Evans rule and, so, need not address the plain error rule. We do so under the second “exceptional circumstance” of Evans because “the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id., 70.

A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). This fundamental constitutional right includes proper jury instructions on the burden of proof on the defense of duress so that the jury may ascertain whether, under all the circumstances, the state has met its burden of proving beyond a reasonable doubt that the crimes charged were not committed under duress. “Duress . . . [is a ] recognized [defense] to [a] criminal [charge] because [it] . . . implicate^] the volitional aspect of criminality.” State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986); see State v. Miller, supra, 660-61. The state’s burden of proof beyond a reasonable doubt encompasses, in an appropriate case, a burden of disproving duress beyond a reasonable doubt. See General Statutes § 53a-12 (a); see also State v. Pierson, supra; State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Miller, supra. We note that the state does not claim that an instruction on duress should not have been given; indeed, the trial judge himself decided that there was evidence that justified such an instruction.

Before focusing on the defendant’s specific claims of error, it is helpful to set out certain evidence that was before the jury. About noon on April 13, 1985, Paris Zeller, Richard Atherton and the defendant were riding around Waterbury in Atherton’s van. They met Stacey Moss in a parking lot. Moss was upset because her boyfriend, KK, could not get out of jail and she wanted to help him out. Moss asked them to help her get one hundred dollars to get KK out on bond. At the time this request was made, Moss, Moss’s Uncle Burt, Atherton, Zeller and the defendant were present. Moss, Atherton, Zeller and the defendant then drove around to see if they could find Danny Edwards or “someone to get some money.” After dropping off Moss and Atherton at a Pathmark store, Zeller and the defendant, who was now driving the van, came upon Edwards. They told Edwards that KK was in jail and that they “needed some money to get him out.” Edwards had no money. These three then picked up Atherton and Moss. Edwards and Moss left the van for a time; Moss did so in an endeavor to obtain some money in return for performing an act of prostitution. Edwards returned with Robert Perugini, and Moss also reappeared but she had no money. There were now six persons in the van, Atherton, Edwards, Perugini, Moss, Zeller and the defendant, who was then the driver. They talked about robbing a store, about picking up a “faggot” and they finally “decided on picking up a whore and taking her money.” All six agreed to do this. No one got out of the van, no one asked to get out and no one was forced to stay in the van. They decided to put up a blanket so that when they picked up the prostitute, she could not see anyone in the back of the van. After they put up the blanket, Zeller, Moss, Perugini, Edwards and the defendant got in the back behind the blanket. Atherton stayed in the front and drove.

It was now approximately 1:45 a.m. on April 14, 1985. The victim, who was a prostitute, left her Waterbury apartment to go to a convenience store to buy some cigarettes. After buying the cigarettes, she began walking toward her house; she had about nineteen dollars on her person. She was approached by a van in which she observed only one person, the male driver, whom she did not know. He offered her a fee to have sex with him. She got into the van and he offered her twenty dollars which she took. She could not see into the back as there “was a curtain or something there.” She directed him to a parking lot and when they got there and shortly after she had instituted oral sex, she “had a gun pointed [at her] from the back [of the van].” She saw and felt the gun “because it was right to [her] temple.” She was pulled into the back of the van; her eyes were covered by “their hands.” Once in the back, a plastic bag was placed over her head and she was made to lie on her stomach. The defendant and Edwards held the victim down and searched her for money. As they searched her, they kept telling her, “You’re a hooker. [We] know you have more money than this on you.” They took her clothes partially off and took her money, including nineteen dollars from her shoe. While the victim was being held down, the two women, Moss and Zeller, moved to the front of the van. Although the victim could only see shadows through the plastic bag, she determined from the voices that there were four men and two women in the van. The victim was forced to engage in sexual intercourse five times during which her hands were tied and the van was moving. The gun was still present in the back of the van as “they like had me feeling it and they kept saying, you know, ‘[i]t’s still here.’ ”

After the two women had joined Atherton in the front of the van, Atherton stopped the van and got in the back. Atherton “asked” the defendant to drive. While the defendant was driving the van, he stopped at a store, Moss and Zeller left the van to purchase some soda and then returned. After the sexual assaults, Moss and Zeller, who had been riding in front, told the defendant that they wanted to be dropped off so that they could go home. The defendant dropped off the two women and Edwards in downtown Waterbury. At the time Moss, Zeller and Edwards got out of the van, one of the women said, “You might as well go ahead and kill her. She’s going to go to the police.” No one else tried to get out of the van at that time.

The defendant drove the van for some time until Atherton told him to stop. When he did so, they were in a secluded wooded area in Thomaston. Atherton and Perugini then took the victim out of the van, leaving the defendant alone in the van. At that time, the plastic bag was still over the victim’s head and her hands were still tied. The victim was walked by Atherton and Perugini through some bushes, over some gravel, over railroad tracks into more gravel and then to “clear ground.” In the clearing, the bag was removed from her head and Atherton pointed a gun at her. As he held the gun on her, Atherton told her that “he didn’t want to do it but he had to. ” The first shot that he fired hit a can opener that she had in her jacket pocket and “just bruised” her chest. He fired again, grazing her finger. During this time, the defendant stayed in the van and waited. He testified that he heard three gunshots, not two, and that “he started the van up” after he heard the first shot.

After the shots had been fired at her, the victim attempted to run into a nearby river but came back out because the water was too deep and she couldn’t swim because her hands were still tied. The two men then tried to choke her with some wire but she prevented them from doing so. One of them then struck her on the head with a “boulder,” cutting her. They also beat her with a board with nails in it cutting her buttocks. She then picked up a “large stick” and a rock and started chasing the two men. She did not know at that time where the van was. The defendant then saw her chasing after them. The two men got in the van and, with the defendant driving, left the scene but not before the victim struck the van with the stick she had picked up.

Thereafter, the victim walked to a nearby house from which the owner called the Thomaston police. Later that day, the victim went with the Thomaston police to the area of the attack. The police found a white plastic bag with a Pathmark label and the victim identified it as the one that had been placed over her head. Approximately two days later, the Thomaston police were contacted by Atherton’s wife. The police thereafter obtained a search warrant for Atherton’s van. After a further investigation, the police arrested the defendant, Atherton, Edwards, Perugini, Moss and Zeller.

The defendant testified as the sole witness for the defense. He stated that “[he] didn’t participate in any of [the] crimes.” Although admitting that he was in the van, he maintained that he was acting under duress. After drinking alcohol and smoking pot “for a long time that day,” he fell asleep in the back of the van and when he “came to,” there was a stranger in the back of the van and he asked who she was and what they were doing to her. They told him that she was a prostitute whom “they had picked up” and that they were “trying to rob her.” The defendant said that he told them that “[he didn’t] want anything to do with this.” The defendant testified that Atherton had told him “to get in the front of the van and drive,” to which the defendant had replied, “I don’t want to.” Atherton then “turned around and said in a real nasty voice, 'well, you better get up front and drive.’ ” The defendant then went up front to drive the van, doing so “at the command of Atherton.” In contradiction to Zeller’s testimony, the defendant maintained that he had not participated in a conversation planning the robbery, nor did he agree to commit a crime. All he did was drive; he did not rape the victim nor hold her down while she was being robbed. He felt that “his life was in jeopardy if [he] tried to leave the van.” This was because he “didn’t know [Atherton] that well [and because of] the way [Atherton] told [him] to get in front.” The gun, he said, was fired twice out the window “next to my head” while he was driving and while the victim was in the van.

Certain general principles will be useful in our discussion of the specifics of the defendant’s claim. “Duress . . . excuses a crime when another’s unlawful threat of death or serious bodily injury reasonably causes the defendant to do a criminal act in a situation in which there was no other opportunity to avoid the threatened danger.” United States v. Michelson, 559 F.2d 567, 569 (9th Cir. 1977); see also United States v. McClain, 531 F.2d 431, 438 (9th Cir. 1976), cert. denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 (1977). “The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question . . . [but] rather it is that, even though he had done the act the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.3a. The United States Supreme Court, in speaking to the defenses of duress and necessity has said: “Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, ‘a chance both to refuse to do the criminal act and also to avoid the threatened harm,’ the defenses will fail. [W. LaFave & A. Scott, Criminal Law p. 379].” United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980).

General Statutes § 53a-14 provides that “it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress . . . shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.” (Emphasis added.) Because § 53a-14 declares that duress “shall be a defense” and not an affirmative defense, we look to § 53a-12 to determine the allocation of the burden of proof. Section 53a-12 (a) provides that “[w]hen a defense other than an affirmative defense, is raised at trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.” Whether the defense of duress was “raised” at the trial must be determined by viewing the record in a light most favorable to the defendant’s claim. State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982); see State v. Fuller, supra, 278.

We turn to the challenged instruction on duress as given by the trial court. In asserting error, the defendant points to: (1) the failure of the trial court to instruct that under § 53a-12 (a) the state had the burden of proof on this defense and was required to disprove the defense beyond a reasonable doubt; (2) the misstatement that the burden of proof was on the defendant; (3) the “misleading and confusing” statement that the defendant had to prove the defense of duress “against all five counts”; and (4) the failure to state anywhere in its instructions that the jury had to find the defendant not guilty if this defense was not disproved. He states that it is reasonably possible that these omissions and misstatements combined to confuse the jury.

The state maintains that, viewing the charge as a whole, the trial court did not omit or misstate the burden and standard of proof in a manner harmful to the defendant. In arguing for the analysis of the charge as a whole, the state disagrees that “this isolated misstatement” requires, as the defendant claims, the reversal of four convictions. It also argues that there is nothing in the record to support the claim that the alleged omissions and misstatements combined to confuse the jury. The state maintains that to construe the language referring to the defendant’s need to prove this defense “against all five counts” imposes an “entirely unreasonable interpretation” on the trial court’s language “contrary to its plain meaning, and contrary to common sense.” The state also challenges the defendant’s claim that the trial court erred in failing to instruct the jury that it had to find him not guilty if it found that the state had not disproved the duress defense beyond a reasonable doubt. It asserts that there is no merit to that claim because the trial court charged the jury at least four times that it must find the defendant not guilty if it found the state had not proven each essential element of each crime charged beyond a reasonable doubt.

“ ‘ “The test to be applied to any part of a charge is whether the charge considered as a whole presents the case to the jury so that no injustice will result.” State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 [1974]; Siladi v. McNamara, 164 Conn. 510, 515, 325 A.2d 277 [1973].’ State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977).” State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 722, reh. denied, 446 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). It is well established that jury instructions must be read as a whole and that individual instructions are not to be judged in “artificial isolation” from the overall charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). Although the Cupp court stated, “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge,” that court also recognized that that “does not mean that an instruction by itself may never rise to the level of constitutional error . . . .” Cupp v. Naughten, supra, 146-47; see Cool v. United States, 409 U.S. 100, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972). The due process clause “protects the accused against conviction except upon proof [by the state] beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); accord Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). As we have already noted, the defendant has a constitutional right to have the jury adequately instructed in order to guarantee him a fair trial. Moreover, this right directly implicates the requirement of correct instructions on the standard of proof as well as the burden of proof. A misstatement of the law is more likely to be prejudicial than an omission or incomplete instruction. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); State v. Kurvin, 186 Conn. 555, 563, 442 A.2d 1327 (1982); see State v. Preyer, 198 Conn. 190, 198-99, 502 A.2d 858 (1985).

Turning to the claimed errors, we conclude, not only from the instruction on duress itself but also from a careful review of the overall charge, that the trial court did not instruct the jury that under the statute the state had the burden of disproving the defense of duress beyond a reasonable doubt. Rather, the language of the challenged instruction discloses that the trial court not only omitted crucial instructions but also misstated the law. It told the jury that “if the defendant has proved this defense and he proves it against all five counts, it is a defense that he was coerced . . . . ” The defendant, of course, did not have to prove the defense. Moreover, the defense did not have to be available to him with respect to each and every one of the five counts with which he was charged. Rather, to convict the defendant on any one or more of the crimes charged against him, the state was required to show that he was not acting under duress as to any such crime. See United States v. Campbell, 609 F.2d 922, 925 (8th Cir. 1979), cert. denied, 445 U.S. 918, 100 S. Ct. 1282, 63 L. Ed. 2d 604 (1980); United States v. Hearst, 563 F.2d 1331, 1336 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978); Commonwealth v. Robinson, 382 Mass. 189, 201, 415 N.E.2d 805 (1981).

As a matter of due process, the state bore the burden of disproving duress beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); Commonwealth v. Robinson, supra, 200-201, 206. The jury, however, was not instructed that the standard of proof beyond a reasonable doubt which was the burden that rested on the state throughout also applied to the defense of duress. The trial court not only omitted this instruction but misstated the allocation of the burden on that statutory defense. This analysis is not a critical dissection of the charge nor an assessment of it in “artificial isolation” from the charge as a whole.

The state claims that the overall charge renders any such error harmless. We do not agree. It is true that the state’s general burden of proof beyond a reasonable doubt was given a number of times as well as its burden to prove every essential element of every crime charged. This case does not present a situation such as in State v. Torrence, 196 Conn. 430, 437, 493 A.2d 865 (1985), to which the state refers us in arguing that we should find harmless error. In Torrence, we found the solitary misstatement not to constitute harmful error because on at least two other occasions, the court gave the correct charge. By contrast, in this case the instruction on duress was given only once, it was incorrect and it was never corrected. There is no reference elsewhere in the overall charge to this defense. We cannot say that the instructions elsewhere in the charge concerning the standard of proof and burden of proof “cured” the challenged instruction. This is not only because of the affirmative misstatement, as well as the omission noted, but also because as the only instruction on this statutory defense in the entire charge, it hardly furnished adequate instructions for the proper guidance of the jury. It is to be presumed that the jury followed the court’s instructions unless the contrary appears. State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987); State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977); State v. DellaCamera, 166 Conn. 557, 567, 353 A.2d 750 (1974).

The necessity for correct instructions on the burden of proof on the defense of duress becomes especially significant when it is realized that, in a proper case, duress is a defense to what would otherwise be a crime. See United States v. Bailey, supra, 409-11; United States v. Agard, 605 F.2d 665 (2d Cir. 1979); Commonwealth v. Thurber, 383 Mass. 328, 418 N.E.2d 1253 (1981); Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975); see 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.3; R. Perkins, Criminal Law (2d Ed. 1957) p. 949 et seq. In a word, the defendant was entitled to a correct charge concerning the burden of proof on duress, a defense which is “a legal excuse for criminal conduct.” United States v. Agard, supra, 667; see State v. Knapp, 147 Vt. 56, 509 A.2d 1010 (1986); annot., 40 A.L.R.2d 908. The ultimate effect of the state’s failure to discharge its burden of disproving the defense of duress was aptly stated by the Massachusetts Supreme Judicial Court when it said: “Yet if the effect of duress, as defined, is to reduce the person to a state of involuntariness or automatism, see Model Penal Code § 2.09, Comment at 6 (Tent. Draft No. 10,1960), then duress may be seen as removing the very basis of criminal culpability, see Model Penal Code § 2.01 (2) (d) (Proposed Official Draft 1962), with due process implications as regards burden of proof.” Commonwealth v. Robinson, supra, 203-204.

In addition, it was error to charge that the defense need be proved as against all the counts of the information. It was especially inappropriate to do so in this case where, on the evidence before the jury, certain of the crimes charged were not only in different temporal contexts but also involved different participants. It follows from this that a proper instruction could have permitted a finding of duress as to certain of the crimes charged and not others. Moreover, nowhere in its instructions on duress, or elsewhere in the charge, did the court instruct that the defendant was required to be found not guilty if the state did not disprove it beyond a reasonable doubt. At most, the trial court’s instructions on duress conveyed to the jury a confusing and imprecise notion that the oft-repeated standard of proof beyond a reasonable doubt that was the state’s burden might possibly apply to the defense of duress. Under relevant legal principles, the charge on duress was harmfully erroneous. In State v. Fuller, supra, 280, we said that the trial court’s instructions “did not relate duress to intent or explain to the jury that duress negated intent or that, if the state proved intent beyond a reasonable doubt, it disproved duress beyond a reasonable doubt,” pointing out that the failure to convey that nexus left the jury “to its own devices to determine the relationship between intent and duress.” There we also pointed out that we were “not persuaded that simply instructing the jury that it was the state’s burden to prove intent beyond a reasonable doubt [as the trial court generally did in this case] adequately informed the jury that it was the state’s burden to disprove duress beyond a reasonable doubt.” Id. Viewing the charge as a whole, we hold that the erroneous instructions were not overcome by the overall charge; the interests of justice require the conclusion of harmful error. State v. Theriault, 182 Conn. 366, 380, 438 A.2d 432 (1980); State v. Williams, 182 Conn. 262, 267-69, 438 A.2d 80 (1980).

In the constitutional context of this case, in considering, as we must, the jury charge “from the standpoint of its effect on the jury in guiding them to a proper verdict”; State v. Bell, 153 Conn. 540, 544, 219 A.2d 218 (1966); the next issue is whether it is reasonably possible that the jury was misled by the charge. State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986); State v. Williams, supra, 269. It is clear that the charge was not “ ‘accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.’ ” State v. Williams, supra; State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983). It follows from what we have already said that it is reasonably possible that the jury was misled by the charge. A new trial is required.

Our order of a new trial, however, does not end our inquiry. The issue now arises as to which of the four crimes, of which the defendant was found guilty, a new trial is required. The defendant argues that he is entitled to a new trial on all four crimes of which he was found guilty. The state, on the other hand, argues that the convictions on each of the four crimes be affirmed. The oral arguments on this appeal, as well as the records and briefs, provide some insight into this issue. A careful examination of the record before us, including the transcript of the trial proceedings, leads us to conclude that, given the harmful error we have found, the new trial is ordered on three of the counts of which the defendant was found guilty at trial. A new trial is ordered on: (1) aiding robbery in the first degree, General Statutes §§ 53a-134 (a) (2), 53a-8; (2) aiding kidnapping in the first degree with a firearm, General Statutes §§ 53a-92a, 53a-8; and (3) conspiracy to commit murder, General Statutes §§ 53a-54a, 53a-48. A new trial is ordered as to these three crimes because the error in the jury charge impacted on these three crimes.

No new trial, however, is ordered on the crime of conspiracy to commit robbery in the first degree. General Statutes §§ 53a-185, 53a-48. A close review of the evidence at the trial demonstrates that the harmful error in the trial court’s instructions could not have tainted this conviction because there was no evidence before the jury which, if credited, would support a finding that the defendant had been subjected to duress at the time of the commission of the crime of conspiracy to commit robbery. We say this recognizing, as we did in Fuller, that “ ‘[a] defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ” State v. Fuller, supra, 278. There was no evidence of duress, either “weak” or “incredible,” which implicates the crime of conspiracy to commit robbery in the first degree. General Statutes §§ 53a-48, § 53a-134.

“ ‘To establish the crime of conspiracy under Section 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed.’ State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). The conspiracy may be proved through circumstantial evidence. State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895 (1941).” State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982); State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). “ ‘The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy. State v. Devine, 149 Conn. 640, 647, 183 A.2d 612, cert. denied, 371 U.S. 930, 83 S. Ct. 303, 9 L. Ed. 2d 237 (1962).” State v. Stevens, 178 Conn. 649, 655, 425 A.2d 104 (1979). “On appeal, this court construes the evidence in the manner most favorable to sustaining the conviction. State v. Gunning, 183 Conn. 299, 309, 439 A.2d 339 (1981).” State v. DeMatteo, supra. It is apparent from the evidence we have set out above that the jury could reasonably have found that there existed between the defendant and his associates a mutual agreement or plan to commit robbery in the first degree, which was followed by an overt act in furtherance of the conspiracy, in violation of General Statutes §§ 53a-134, 53a-48.

The defendant’s version of events, including his denial of any participation in the conspiracy to commit robbery, does not require a contrary conclusion. This is so because there is no evidence of duress in this case that implicates the state’s evidence, principally from Zeller, on the conspiracy to commit robbery count, which the jury credited, thus furnishing the basis for a guilty verdict on that count. In addition, the defendant’s version of the facts tending to show duress, even if it had been credited, would have had no bearing on this conspiracy count. The duress testified to by the defendant occurred after the crime of conspiracy to commit robbery in the first degree had taken place. Therefore, there is no error on the guilty verdict on the charge of conspiracy to commit robbery in the first degree.

There is error in part, the judgment is set aside as to the first, fourth and fifth counts of the substitute information and the case is remanded for a new trial on those counts. There is no error on the second count of the substitute information.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (2) provides: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon.”
      General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. ’ ’

       General Statutes § 53a-134 provides in part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
      General Statutes § 53a-48 provides: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-92 provides in part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when: (1) His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.”

       The jury found the defendant not guilty of one count charging the crime of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a.

       General Statutes § 53a-14, entitled “Duress as defense,” provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

       The plastic Pathmark bag, through which she could only see shadows, remained on her head the entire time that the victim was in the van. There was a hole in the bag where her assailants “had ripped it so [she] could breathe in the bag.”

       There was evidence before the jury that the victim was kept in the van until “about daybreak” which was the time at which the van stopped in Thomaston and the victim was taken out of it by Atherton and Perugini. At that time, it was “light enough for [the victim] to see.”

       The victim testified that Atherton came into the back of the van and sexually assaulted her after the other three males had done so. The jury found the defendant not guilty of the crime of sexual assault in the first degree.

       She later identified both Atherton and Perugini for the police.

       At the defendant’s trial, Zeller testified for the state and the defendant testified in his own behalf. None of the remaining four who had been arrested testified at the trial.

       In United States v. Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d 375 (1980), the court noted that “[m]odern cases have tended to blur the distinction between duress and necessity.”

       Contrary to the dictum contained in State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979), the following defenses are not affirmative defenses: ignorance or mistake, General Statutes § 53a-6; intoxication, § 53a-7; renunciation of criminal purpose, § 53a-10; duress, § 53a-14; entrapment, § 53a-15; justification, § 53a-16, as defined in §§ 53a-17 through 53a-23; and renunciation of criminal purpose in a conspiracy charge, § 53a-48.

       The trial court’s instructions included the following: “Now, we also have a statute that provides that in any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use of threatened imminent use of force upon him, which force or threatened force a person of reasonable firmness in this situation would have been unable to resist.
      “The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
      “Now, in this case, if the defendant has proved this defense of duress and he proves it against all five counts, it is a defense that he was coerced by the use of threatened imminent use of force upon him, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.
      “The defense of duress as defined is not available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”
      There is no claim that, during its jury instructions, the trial court referred to the defense of duress other than in the challenged instructions. Our examination of the entire charge confirms this fact.

       According to the judgment file, these crimes were the first, fourth and fifth counts of the substitute information. The jury found the defendant not guilty of the third count which charged the crime of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a.