author: Callahan, J.

text:
    State of Connecticut v. Lake Spears
    (15117)
    Callahan, Borden, Berdon, Norcott and Katz, Js.

      Argued April 21
    decision released July 4, 1995

      C. Robert Satti, Sr., special assistant state’s attorney, with whom were Sarah E. Steere, legal intern, and, on the brief, Kevin T. Kane, state’s attorney, for the appellant (state).

      Richard D. Haviland, for the appellee (defendant).

      Christopher F. Droney, United States attorney, and Carl J. Schuman, assistant United States attorney, filed a brief for the United States of America as amicus curiae.

      Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, filed a brief for the attorney general as amicus curiae.

      Jackson T. King, Jr., Patrice H. Kunesh and Henry J. Sockbeson filed a brief for the Mashantucket Pequot Indian tribe as amicus curiae.
   Callahan, J.

The sole issue in this certified appeal is whether the state of Connecticut has jurisdiction, pursuant to § 1755 of title 25 of the United States Code, over crimes committed on the Mashantucket Pequot Indian Reservation (reservation) in Ledyard. On November 29,1991, the defendant, Lake Spears, was arrested by a Connecticut state trooper who had responded to an anonymous telephone call alerting the police to a disturbance at the defendant’s residence. The defendant resided at 8 Elizabeth George Drive, on the reservation. Subsequent to his arrest, the defendant was charged in an information in the Superior Court with two counts of assault of an officer in violation of General Statutes § 53a-167c, and one count each of inciting injury to persons or property in violation of General Statutes § 53a-179a, disorderly conduct in violation of General Statutes § 53a-182 and interfering with an officer in violation of General Statutes s 53a-167a.

On October 13,1992, the defendant moved to dismiss the information, claiming that the state lacked jurisdiction over crimes committed by or against Indians on the reservation. The parties agreed that the Mashantucket Pequot Indian tribe (tribe) is a federally recognized tribe that owns and occupies the reservation encompassing approximately 1800 acres in Led-yard. The defendant is a member of the Narrangansett Indian tribe, not the Mashantucket Pequot Indian tribe.

The trial court denied the motion to dismiss, concluding that the Connecticut Indian Land Claims Settlement Act of 1983 (Settlement Act); 25 U.S.C. §§ 1751 through 1760; conferred criminal jurisdiction over the reservation to the state. Thereafter, the defendant entered pleas of nolo contendere to all counts of a substitute information that charged him, in three counts, with: (1) interfering with an officer in violation of § 53a-167a; (2) assault in the third degree in violation of General Statutes § 53a-61; and (3) disorderly conduct in violation of § 53a-182. The defendant conditioned the entry of his pleas on his right to appeal from the court’s denial of his motion to dismiss. See General Statutes § 54-94a; Practice Book § 4003. The trial court rendered a judgment of conviction on all three counts.

Thereafter, the defendant appealed to the Appellate Court from the judgment of conviction, challenging the trial court’s denial of his motion to dismiss. The Appellate Court reversed the judgment of conviction, concluding that the Settlement Act did not confer criminal jurisdiction over the reservation to the state in the absence of the express consent of the tribe. State v. Spears, 36 Conn. App. 106, 122-23, 647 A.2d 1054 (1994). The Appellate Court, accordingly, remanded the case to the trial court with direction to grant the defendant’s motion to dismiss. We granted the state’s petition for certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the state of Connecticut does not have jurisdiction over crimes allegedly committed by the defendant on the Mashantucket Pequot Indian Reservation in Ledyard?” State v. Spears, 231 Conn. 936, 650 A.2d 173 (1994). We reverse the judgment of the Appellate Court.

On appeal, the state claims that, although the Settlement Act granted federal recognition to the tribe, it also granted jurisdiction over crimes committed on the reservation to the state. See 25 U.S.C. §§ 1758 (a) and 1755. The state contends that § 1755 constituted an express grant by Congress of criminal jurisdiction over the reservation to the state, and that jurisdiction was vested in the state upon the passage of the Settlement Act, without requiring any further consent by the tribe. We agree.

The tribe is “the sole successor in interest to the aboriginal entity known as the Western Pequot Tribe which years ago claimed aboriginal title to certain lands in the State of Connecticut.” 25 U.S.C. § 1751 (e). In 1976, the tribe brought a civil action claiming title to certain public and private lands in Ledyard, claiming that the lands were the property of the tribe and had been appropriated wrongfully from the tribe in violation of the constitution and laws of the United States. Mashantucket Pequot Tribe v. McGuigan, 626 F. Sup. 245, 246 (D. Conn. 1986). The Settlement Act reflects an agreement reached by the parties to the litigation to resolve the tribe’s claims and to eliminate the cloud on titles to land in Ledyard resulting from those claims. 25 U.S.C. § 1751; Mashantucket Pequot Tribe v. McGuigan, supra, 246. The Mashantucket Pequot Tribal Council was represented in the action as well as in the hearings before Congress, and manifested its consent to the terms of the Settlement Act. 25 U.S.C. § 1751 (e).

Section 6 of the Settlement Act, which is codified at 25 U.S.C. § 1755, provides: “state jurisdiction over reservation. Notwithstanding the provision relating to a special election in section 406 of the Act of April 11,1968 (82 Stat. 80; 25 U.S.C. 1326) ... the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in title IY of such Act [25 U.S.C. § 1321].” The issue of whether § 6 of the Settlement Act conferred criminal jurisdiction to the state without requiring further consent of the tribe is one of first impression.

At the outset, we note that criminal offenses committed by or against Indians in “Indian country” ordinarily “have been subject only to federal or tribal laws, Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 96 S. Ct. 1634, 48 L. Ed. 2d 96 [1976], except where Congress in the exercise of its plenary and exclusive power over Indian affairs has ‘expressly provided that State laws shall apply.’ McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 170-71, 93 S. Ct. 1257, 36 L. Ed. 2d 129 [1973].” Washington v. Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979); see Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832). We also recognize that “ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the [tribe].” Washington v. Yakima Indian Nation, supra, 484; see also Bryan v. Itasca County, 426 U.S. 373, 392, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976) (“ ‘statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians’ ”). We, however, must effectuate the expressed Congressional intent. See Negonsott v. Samuels, 507 U.S. 99, 104, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993) (“ ‘[o]ur task is to give effect to the will of Congress’ ”); Gonsalves v. West Haven, 232 Conn. 17, 21, 653 A.2d 156 (1995) (“ ‘ “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature” ’ ”).

Our analysis of the statutes reflecting that legislative intent is guided by well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991).” Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. United States v. Albertini, 472 U.S. 675, 680, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985); Frillici v. Westport, 231 Conn. 418, 430, 650 A.2d 557 (1994); West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). As a threshold matter, therefore, we consider whether § 1755 is ambiguous. Although § 1755 explicitly states that “the reservation of the Tribe is declared to be Indian country subject to State jurisdiction,” it also compels us to refer to § 401 (25 U.S.C. § 1321) and to § 406 (25 U.S.C. § 1326) of the Indian Civil Rights Act of 1968 in order to ascertain the parameters and the true meaning of the jurisdictional grant. We conclude, therefore, that the reference in § 1755 to certain provisions of the separate Indian Civil Rights Act renders resort solely to the language of § 1755 inadequate to determine its clear meaning.

When we engage in statutory interpretation, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); see also Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services, 231 Conn. 355, 362, 650 A.2d 147 (1994).” (Internal quotation marks omitted.) Gonsalves v. West Haven, supra, 232 Conn. 21; see Negonsott v. Samuels, supra, 507 U.S. 104. “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Ambroise v. William Raveis Real Estate, Inc., [226 Conn. 757, 764, 628 A.2d 1303 (1993)]; see Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993). . . . State v. Metz, [supra, 409]; Fleming v. Garnett, [supra, 91].” (Citations omitted; internal quotation marks omitted.) Frillici v. Westport, supra, 231 Conn. 431-32; Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 96, 612 A.2d 1130 (1992); see Oklahoma v. New Mexico, 501 U.S. 221, 235 n.5, 111 S. Ct. 2281, 115 L. Ed. 2d 207 (1991) (“we repeatedly have looked to legislative history and other extrinsic material when required to interpret a statute which is ambiguous”); Green v. Bock Laundry Machine Co., 490 U.S. 504, 511, 109 S. Ct. 1981, 104 L. Ed. 2d 557 (1989); Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988); Blum v. Stenson, 465 U.S. 886, 896, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984).

Section 1321 (a) of title 25 of the United States Code provides: “The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.” (Emphasis added.) Section 1326 of title 25 of the United States Code provides in relevant part: “State jurisdiction acquired pursuant to this title . . . with respect to criminal offenses . . . shall be applicable in Indian country only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. ...” (Emphasis added.)

The issue in this appeal boils down to the question of whether, as the defendant argues, an abstract consent requirement expressed in § 1321 survived even though Congress in § 1755 expressly eliminated the mechanism of a special election, which is set forth in § 1326, by which tribes must manifest their consent to state jurisdiction. Section 1755 provides for state jurisdiction over crimes committed on the reservation ‘ ‘ [notwithstanding the provision relating to a special election in section 406 of the Act of April 11, 1968 [§ 1326].” In order to discern the intent of Congress in enacting § 1755, we need comment upon the Indian Civil Rights Act of April 11,1968, which was preceded by Public Law 83-280. See Public Law 83-280, 67 Stat. 588-90 (1953), codified, as amended, at 18 U.S.C. § 1162 and 28 U.S.C. § 1360.

Public Law 83-280, enacted in 1953, was the first federal jurisdictional statute of general applicability to Indian reservation lands; Bryan v. Itasca County, supra, 426 U.S. 379; and “the primary expression of federal policy governing the assumption by States of civil and criminal jurisdiction over the Indian Nations.” Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 884, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986). Public Law 83-280 granted criminal jurisdiction to five states, not including Connecticut, over Indian country in those five states. It also provided an option to the remaining states containing Indian country to assume jurisdiction over crimes committed in Indian country “without consulting with or securing the consent of the tribes that would be affected.” Washington v. Yakima Indian Nation, supra, 439 U.S. 473-74. The primary purpose for enacting Public Law 83-280 was to address “the ‘problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.’ ” Id., 471.

In 1968, Congress enacted title IV of the Indian Civil Rights Act, which is codified at 25 U.S.C. §§ 1321 through 1326. Title IV requires that all subsequent assertions of jurisdiction by the states be preceded by the consent of the affected tribes. “The impetus for the addition of a consent requirement in the 1968 amendments was congressional dissatisfaction with the involuntary extension of state jurisdiction over Indians who did not feel they were ready to accept such jurisdiction, or who felt threatened by it.” Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, supra, 476 U.S. 892, citing S. Rep. No. 721, 90th Cong., 1st Sess. 32 (1967).

The United States Supreme Court has determined that the special election requirement in § 1326 is the only procedure by which the tribal consent in § 1321 may be manifested. “We think the meaning of these provisions is clear: the tribal consent that is prerequisite to the assumption of state jurisdiction under the provisions of Title IV of the Act must be manifested by majority vote of the enrolled Indians within the affected area of Indian country.” (Emphasis added.) Kennerly v. District Court of Montana, 400 U.S. 423, 429, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971), citing 114 Cong. Rec., S394 (1968) (“[t]his title . . . authorizes States to assert civil and criminal jurisdiction in Indian country only after acquiring the consent of the tribes in the States by referendum of all reservated Indians”). It follows, then, that the nullification by § 1755 of the special election requirement, the sole means by which Indian tribes may consent to state jurisdiction, accompanied by an express grant of jurisdiction to the state, effectively nullifies the tribal consent requirement in § 1321.

“We presume that the legislature is aware of the judicial construction placed upon its enactments. Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993); Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992).” State v. Crowell, 228 Conn. 393, 401, 636 A.2d 804 (1994); see Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 321, 640 A.2d 101 (1994) (“[W]e presume that the legislature has ‘knowledge of this longstanding construction which this court has given to the objective and purpose of legislation in this field.’ Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 [1968].”); see also Rodriguez v. United States, 480 U.S. 522, 525, 107 S. Ct. 1391, 94 L. Ed. 2d 533 (1987) (“Congress acted—as it is presumed to act . . . with full awareness of the well-established judicial interpretation [of the statute]” [citation omitted]). Section 1755, therefore, must be interpreted in light of the United State Supreme Court’s interpretation of §§ 1321 and 1326. Moreover, “[a] statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed,” 2A J. Sutherland, Statutory Construction (5th Ed. 1992) § 46.05, p. 103; see also Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. , 114 S. Ct. 1992, 2002,128 L. Ed. 2d 842 (1994) (“courts should construe statutes to foster harmony with other statutory and constitutional law”).

We must interpret § 1755 so that it, along with §§ 1321 and 1326, constitutes one consistent body of law. Section 1321 provides that the affected tribe must indicate consent to state criminal jurisdiction. Section 1321, however, does not provide a procedure for the tribe to manifest that consent. Section 1326, on the other hand, provides the one method authorized by Congress by which the tribe may consent to state jurisdiction. The only way to harmonize these provisions with each other and with § 1755 is to conclude that the abrogation of the only method of consent abrogated the necessity for consent.

The defendant argues, however, that by abrogating the requirement for a special election, Congress in § 1755 did not intend to confer criminal jurisdiction to the state without the necessity for tribal consent. Instead, the defendant argues that Congress intended to recognize the increasing sophistication of Indian tribes and to allow the Mashantucket Pequot tribe greater freedom by permitting it to manifest its consent to jurisdiction by some undelineated method or methods. This interpretation of congressional intent is flawed. It is illogical to place both the state and the tribe in the predicament of guessing at the proper manifestation of consent. See, e.g., Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 651 A.2d 1246 (1995) (dispute between tribal chief and tribal council regarding authority to bring action on behalf of tribe resulting in dismissal). Such an interpretation would lead to the unlikely result that Congress intended that some undisclosed method of signaling consent should be utilized by the Mashantucket Pequot tribe, but not by other Indian tribes, even though there has been but a single recognized method since 1968 by which all Indian tribes may declare their consent to state jurisdiction.

“[P]rinciples of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985). [Turner v. Turner, supra,] 713. Scrapchansky v. Plainfield, 226 Conn. 446, 453, 627 A.2d 1329 (1993); see also State v. Johnson, [227 Conn. 534, 542, 630 A.2d 1059 (1993)]; Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991).” (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 624, 642 A.2d 1186 (1994). “It is also a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results. . . . State v. Siano, 216 Conn. 273, 278, 579 A.2d 79 (1990), and cases cited therein.” State v. Harrison, 228 Conn. 758, 765, 638 A.2d 601 (1994); see United States v. Rutherford, 442 U.S. 544, 552, 99 S. Ct. 2470, 61 L. Ed. 2d 68 (1979). Without running afoul of the accepted rules of statutory construction, we cannot construe the immediate, definitive grant of state jurisdiction in § 1755 to be subject to subsequent tribal consent, the method of declaring which is unknown to Congress, the state and the tribe.

The defendant’s proposed interpretation of § 1755 also would render everything in the statute, except for the elimination of the special election requirement of § 1326, superfluous. Section 1755 provides that “the reservation ... is declared to be Indian country subject to State jurisdiction . . . .” If, as the defendant argues, the consent of the tribe was still necessary to confer criminal jurisdiction on the state after the passage of the Settlement Act, this language would amount to nothing more than a manifestation of Congress’ consent to state jurisdiction with the consent of the tribe. In § 1321, Congress, however, already had manifested its express consent to any state to assume jurisdiction over Indian country with tribal consent; consequently, no purpose would be served by doing so again in § 1755. Our conclusion, therefore, that the state automatically assumed criminal jurisdiction over the reservation upon passage of the Settlement Act, is the only interpretation of the statutory scheme which is not redundant and which gives meaning to every clause of § 1755.

“It is a basic tenet of statutory construction that the legislature ‘did not intend to enact meaningless provisions.’ Turner v. Turner, [supra, 219 Conn. 713]. Accordingly, care must be taken to effectuate all provisions of the statute. See Pintavalle v. Valkanos, 216 Conn. 412, 418, 581 A.2d 1050 (1990) (‘[a] statute should be read as a whole and interpreted so as to give effect to all of its provisions’); Hopkins v. Pac, 180 Conn. 474, 476, 429 A.2d 952 (1980) (it is a ‘well established principle that statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant’).” Bridgeport Hospital v. Com mission on Human Rights & Opportunities, 232 Conn. 91, 100-101, 653 A.2d 782 (1995); see also Negonsott v. Samuels, supra, 507 U.S. 106 (“[o]ur reading of the . . . Act is the only one which gives effect ‘to every clause and word of [the] statute’ ”); 2A J. Sutherland, supra, § 46.06, pp. 119-20.

The legislative history of the Settlement Act also persuades us that the intent of Congress in enacting § 1755 was to confer criminal jurisdiction to the state without the requirement of tribal consent. As stated in both the Senate and the House of Representative Reports, “[s]ection 6 [§ 1755] provides that the reservation . . . is subject to the full extent of State jurisdiction . . . as defined in title IV of the Act of April 11, 1968, the Indian Civil Rights Act. The Tribe’s reservation has this status notwithstanding section 406 of the Indian Civil Rights Act [§ 1326] which requires a majority vote of the enrolled members of an Indian tribe before a state may assume jurisdiction over that tribe.” (Emphasis added.) S. Rep. No. 222, 98th Cong., 1st Sess. 16 (1983); see also H.R. Rep. No. 43, 98th Cong., 1st Sess. 10 (1983). The reservation would not obtain the “status” of being under state jurisdiction upon the enactment of § 1755 if Congress had intended that subsequent tribal consent was required to confer jurisdiction to the state.

Interestingly, the tribe’s own ordinances, enacted subsequent to the Settlement Act, manifest the tribe’s acceptance of state jurisdiction. The ordinances clearly indicate that the tribe acknowledged the state’s acquisition of jurisdiction, pursuant to § 1755, over crimes committed on the reservation. The Mashantucket Pequot Tribal Law and Order Code, enacted November 20,1991, only nine days before the defendant was arrested, provides several examples. Section 1, entitled “Offenses against the Tribe,” provides: “(a) Violations of State criminal laws: Every offense against those criminal laws of the State of Connecticut which are made applicable to the Mashantucket Pequot Reservation by section 6 of the Mashantucket Pequot Indian Claims Settlement Act, Pub. L. 98-134, 25 U.S.C. § 1755, and 25 U.S.C. § 1321, shall be an offense against the law of the Mashantucket Pequot Tribe and the Mashantucket Pequot Tribe hereby adopts and incorporates by reference, as the law of the Mashantucket Pequot Tribe, all provisions of such criminal laws of the State of Connecticut which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Claims Settlement Act, Pub. L. 98-134, 25 U.S.C. § 1755, and 25 U.S.C. § 1321.” (Emphasis added.) Mashantucket Pequot Tribal Ordinance No. 112091-01.

Section 5 of the Mashantucket Tribal Law and Order Code provides in relevant part: “Concurrent jurisdiction over State offenses. The Mashantucket Pequot Tribal Police Department shall exercise concurrent authority with law enforcement officers of the State of Connecticut to make arrests for violations of criminal laws of the State which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Claims Settlement Act, Pub. L. 98-134, 25 U.S.C. § 1755, and 25 U.S.C. § 1321; provided, however, that persons arrested by officers of the Mashantucket Pequot Tribal Police Department for such violations of criminal laws of the State of Connecticut shall be transferred as promptly as may be feasible to the jurisdiction of the State law enforcement officers and the Mashantucket Pequot Tribal Police Department shall comply with all reasonable requirements of State law enforcement officers and agencies in order to assist in the prosecution of such offenders under the laws of the State of Connecticut.” (Emphasis added.) Mashantucket Pequot Tribal Ordinance No. 112091-01.

These provisions not only reflect the tribe’s acknowledgement that the state had acquired criminal jurisdiction over the reservation pursuant to § 1755, but also evince the tribe’s apparent willingness to cooperate with the state’s law enforcement authorities. Because we conclude that tribal consent to state jurisdiction was not required pursuant to § 1755, we need not consider whether these tribal ordinances act as subsequent ratification of state jurisdiction. They do, however, illustrate that the tribe understood the passage of § 1755 to confer criminal jurisdiction on the state.

Finally, the Gaming Compact, ordered by the United States Secretary of the Interior as a result of the Indian Gaming Regulatory Act of 1988; see Mashantucket Pequot Tribe v. Connecticut, 737 F. Sup. 169 (D. Conn.), aff’d, 913 F.2d 1024 (2d Cir. 1990); 56 Fed. Reg. 24,996 (1991); provides that “[t]he State of Connecticut shall also have jurisdiction to enforce all other criminal laws of the State which are consistent with the provisions of this Compact on the Reservation, including enforcement within the gaming facilities.” (Emphasis added.) The compact assumes that the state had acquired criminal jurisdiction over the entire reservation and only emphasizes that the jurisdiction includes the gaming facilities. Additionally, the Mashantucket Pequot Gaming Commission stated: “The State Law Enforcement Agency (Connecticut State Police) shall have jurisdiction to enforce all criminal laws on the reservation, including enforcement within the gaming facility.” (Emphasis added.) Mashantucket Pequot Gaming Commission: Regulatory Responsibilities and Requirements of the Tribal Gaming Commission, State Gaming Agency and State Law Enforcement Agency (November 14, 1991). The term “including” presupposes the existence of state jurisdiction over the entire reservation.

We conclude that the state of Connecticut acquired jurisdiction over crimes committed on the Mashantucket Pequot Indian Reservation by the enactment of § 1755 of title 25 of the United States Code.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       The trial court granted the Mashantucket Pequot Indian tribe’s motion to file a brief as amicus curiae regarding the motion to dismiss. The tribe claimed that the issue in this case would have a lasting effect on its relationship with the state. The trial court also granted the United States amicus curiae status. Before this court, the tribe, the United States and the state attorney general filed briefs as amici curiae.

       All parties agree that the fact that the defendant is not a member of the Mashantucket Pequot Indian tribe has no legal significance in this appeal.

       General Statutes § 54-94a provides: “conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
      Practice Book § 4003 provides: “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant's motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. The court shall not accept a nolo contendere plea pursuant to this subsection where the denial of the motion to suppress would not have a significant impact upon the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere plea where the record available for review of the denial of the motion to suppress or motion to dismiss is inadequate for appellate review of the court’s determination thereof.
      “(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       In Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 245, the United States District Court for the District of Connecticut considered whether Connecticut’s bingo laws were enforceable on the reservation. The court, in considering the effect of § 1755, stated: “While Public Law 98-134 eliminates the consent election provided in 25 U.S.C. § 1326, it may have created an anomaly by the fact that it does not eliminate the consent requirement of 25 U.S.C. § 1321.” Id., 248. The court, however, expressly reserved the question of whether the state had acquired criminal jurisdiction over the reservation because it concluded that the bingo laws were not criminal laws, but rather were “civil/regulatory.” In Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 615 n.3, 587 A.2d 139 (1991), this court misstated the holding of McGuigan in dicta.

       “Indian country” is defined in § 1151 of title 18 of the United States Code, which provides in relevant part: “Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’ . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . .’’Asa threshold matter, we note that the tribe is a federally recognized Indian tribe; 25 U.S.C. § 1758; and occupies a reservation of land in Ledyard pursuant to General Statutes § 47-63. The reservation is, therefore, Indian country. See also 25 U.S.C. § 1755.

       Congress has conferred on the federal courts special criminal jurisdiction over offenses committed in Indian country. See Negonsott v. Samuels, 507 U.S. 99, 102-103, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993). The Indian Country Crimes Act, codified at 18 U.S.C. § 1152, applies to crimes committed by non-Indians against Indians and to crimes committed by Indians against non-Indians not encompassed by other statutes or prosecuted in a tribal court. See Williams v. United States, 327 U.S. 711, 714, 66 S. Ct. 778, 90 L. Ed. 962 (1946); F. Cohen, Handbook of Federal Indian Law (1982 Ed.) pp. 287-300. The Indian Major Crimes Act establishes as federal crimes certain felonies committed by any Indian in Indian country “against the person or property of another Indian or other person . . . .” 18 U.S.C. §§ 1153, 3242. In the absence of an express grant of state jurisdiction by Congress, state jurisdiction within Indian country “is limited to crimes by non-Indians against non-Indians . . . and victimless crimes by non-Indians.” Solem v. Bartlett, 465 U.S. 463, 465 n.2, 104 S. Ct. 1161, 79 L. Ed. 2d 443, reh. denied, 466 U.S. 948, 104 S. Ct. 2148, 80 L. Ed. 2d 535 (1984).

       At the time that Public Law 83-280 was enacted, there were no federally recognized Indian tribes in Connecticut.

       The five states given immediate jurisdiction were California, Minnesota, Nebraska, Oregon and Wisconsin. Alaska was added to this group in 1958. See 18 U.S.C. § 1162; 28 U.S.C. § 1360.

       Indeed, from the time of the enactment of the Settlement Act in 1983, when the tribe gained federal recognition; see 25 U.S.C. § 1758; until 1990, the tribe had neither a police force nor a court system.


source: Caselaw Access Project

author: Callahan, J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Frederick Conn
    (15109)
    Peters, C. J., and Callahan, Berdon, Norcott and Palmer, Js.

      Argued March 22
    decision released July 4, 1995

      Vicki H. Hutchinson, special public defender, with whom was Rita Van Item, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David Holzbach, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Frederick Conn, was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c. In the information filed against the defendant, the state alleged that the defendant, acting either alone or with Bassell Conn and/or Enrique Smith, “attempted to commit the crime of Robbery and in the course of and in furtherance of such crime or flight therefrom he or another of the participants . . . caused the death of one Michael Samaha.” The defendant claims on appeal that: (1) the state destroyed potentially exculpatory evidence, in violation of his right to due process of law under the fourteenth amendment to the United States constitution, by failing to test, in a timely manner, certain physical evidence; (2) the trial court improperly denied his motion to unseal his arrest warrant and its supporting affidavit prior to his probable cause hearing; and (3) the trial court improperly failed to instruct the jury that it could draw an adverse inference against the state for failure to test the physical evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 10, 1992, shortly after 10 p.m., Robert Arconti, a patrol officer with the Danbury police department, found the victim lying in the alley between 112 and 114 Elm Street in Danbury with a single gunshot wound to his lower back. The victim was on his left side, unconscious, with his left arm under his body and his pants pulled down exposing most of his buttocks. As the emergency medical technicians who had been called to the scene were moving the victim to the ambulance, a twenty dollar bill fell from the victim’s left hand. Arconti gave the bill to officer Roger Brooks, the evidence technician responsible for photographing and collecting evidence at the scene. The victim died on the operating table at Danbury Hospital early the next morning. The cause of death was determined to be the “penetrating injury caused by the bullet that entered through his back into and traversed his abdominal cavity injuring the aorta as well as the intestinal tract.”

Brooks recovered several items in addition to the twenty dollar bill that had fallen from the victim’s hand. A .32 caliber, semiautomatic Beretta pistol, that was loaded and cocked, with a round in the chamber, was found in the rear of the alley. Moreover, in addition to the bullet removed from the victim’s body, a second bullet was retrieved from the wall behind the victim and two shell casings were discovered within twelve feet of where the victim had fallen. A light colored T-shirt and a dark colored baseball cap also were located in the alley near a fence.

In addition, the jury heard the following testimony that it could have credited. Mark Trohalis, the Danbury police officer who had found the T-shirt and baseball cap in the alley, testified at trial that these items were “very dry and that night it had rained off and on, sometimes very heavily .... It’s very common when you have a crime occurring that people will try to change their appearance to avoid being caught and this was a very real possibility.” Edward McPhillips, a firearms examiner for the state police forensic laboratory, testified at trial that, from the results of the ballistic tests that he had conducted on the pistol recovered from the scene, the bullet that had been removed from the vietim’s body had been discharged from the pistol found at the rear of the alley and that the two shell casings found had been fired from the same gun.

Friends of the defendant, Ezra Staton, Terrel Sta-ton and Timothy Mourning, testified that, approximately one week before the shooting, they had seen the defendant and his brother, Bassell Conn, in possession of a black .32 caliber pistol that the brothers kept in a black waist pouch. Furthermore, Vandy Heard, Michael Ross, Terrel Staton and Mourning testified that shortly before they heard gunshots from the alley, they had been standing in a group at a corner near the alley and had seen the defendant, his brother and Smith with the pistol.

Ross testified that, while the group was gathered at the corner, he had seen the defendant’s brother take the gun out of the pouch and wave it in the air. Ross further testified that about ten or fifteen minutes later, when he was at the basketball courts not far from the alley, he had heard two gunshots from the direction of the alley. Heard testified that the group, including the Conn brothers and Smith, had gathered at the corner near the alley and were discussing the possibility of robbing someone when the defendant’s brother took the gun out of a black waist pouch. Because it had started to rain, the group then disbanded, except for the defendant, his brother and Smith. Both Heard and Terrel Staton testified that when they saw the defendant and his brother just prior to the shooting, Bassell was wearing a black baseball cap.

There were two eyewitnesses to the shooting. Elisha Council testified that she had been in the alley with the victim shortly before he was shot. The victim asked Council if she could find someone either to sell him some drugs or to have sex with him. Thereafter, Council left the victim and went to the back porch of a building overlooking the alley. While on the back porch, she heard a commotion. She testified that she saw three men, in addition to the victim, in the alley and that two of them had attacked the victim and asked him for money while the third appeared to act as a lookout. Council then heard two gunshots, but was not certain who shot the victim. The three men then fled. Council identified the three perpetrators as the defendant, his brother Bassell and Smith.

At the time of the shooting, another eyewitness, Theresa Perkins, was in her second floor apartment, which is adjacent to the alley. She testified that when she heard a commotion, she looked out of her window and saw the victim being attacked by two men. She then heard a gunshot and saw the victim fall to the ground, but could see only that the shooter had on “a T-shirt with a logo on it and a dark-color hat,” and could not discern the shooter’s identity. She did, however, identify the defendant as one of the individuals involved in the attack.

Mourning gave a statement to the police on September 13,1992, which was read to the jury and admitted into evidence for substantive purposes, stating that shortly after the shooting, “Boz Conn came up to me and said, ‘I just shot somebody.’ ” Cedric Jones testified that two days after the shooting, the defendant had told him that the defendant, the defendant’s brother and Smith had shot someone in the alley. Jones further testified that the defendant had asked him to act as an alibi witness by stating that they were together at the mall at the time of the shooting. Additional facts will be provided as necessary.

I

We first address the defendant’s claim that the state destroyed potentially exculpatory evidence, in violation of his right to due process of law under the fourteenth amendment to the United States constitution, by failing to test, in a timely manner, certain physical evidence.

The following facts are relevant to this claim. Brooks, who had collected the evidence at the crime scene, testified that about one week after he had obtained the T-shirt and black baseball cap from the alley, he sent them to the state forensic laboratory and requested that they be processed for hairs, fibers and gunshot residue. Kiti Settachatgul, a lead criminalist in the trace evidence section of the state forensic bureau, first testified on October 13,1993. He stated that he had found several hairs on the T-shirt and baseball cap. He classified the hairs as “negro.” He stated, however, that he did not perform any additional tests with regard to the hairs because no hair samples had been submitted with which he could compare the hairs found on the T-shirt and baseball cap.

Settachatgul also testified that he did not submit his report to the Danbury police department until September 14,1993, more than one year from the date of the murder, and that the delay was a result of the heavy caseload at the laboratory. Thus, the tests on the evidence were not performed until just before the trial was scheduled to begin and only then because a case that is scheduled for trial takes precedence over others. Settachatgul further testified that on September 10,1993, he had requested a sample of hair from the defendant, his brother Bassell and Smith from the Danbury police department for comparison with the hair recovered from the T-shirt and baseball cap. No samples were sent to him at that time.

After Settachatgul’s testimony on October 13,1993, the defendant, out of the presence of the jury, in a motion for nontestimonial evidence, requested that hair samples be taken from the defendant to be compared with the hairs found on the T-shirt and baseball cap. The defendant’s stated reason for his request was that “I don’t want to leave the jury thinking that we refused to comply. We never received any requests for such evidence before, and I don’t want to leave that gaping hole or that question mark in the jurors’ mind[s].” The state did not object to the motion and stated that its “reason for not requesting this in the first place was because [it had] received the information so late, [and] didn’t feel there was sufficient time for the State’s motion [for nontestimonial evidence].” Thereafter, hair samples were collected from the defendant, his brother and Smith and sent to the state forensic laboratory for comparison.

On October 21, 1993, Settachatgul was recalled to the stand. He testified that he had collected one hair from the baseball cap and six hairs from the T-shirt recovered from the scene. Settachatgul explained that he had compared the hairs found at the scene and the samples submitted by the defendant, his brother and Smith under a comparison microscope, which enabled him to view both simultaneously. He generally compares the pigment, distribution of pigment and size of the hair and how the hair “behaves” in order to determine whether samples are similar to the hairs found at the crime scene. Settachatgul determined that the hair samples collected from the defendant, his brother and Smith were not similar to the hairs found on the T-shirt and baseball cap found in the alley.

Settachatgul further testified, however, that he could not determine positively whether the defendant, his brother Bassell or Smith had had contact with the T-shirt or the baseball cap. First, he testified that the hairs found on the T-shirt and cap did not necessarily originate from the person wearing them. Hairs can come from sources other than from the person actually wearing the clothing. Second, although the hair samples recovered from the scene were preserved properly and did not change once they had fallen out of the scalp, a person’s head hair may change depending on his diet and environment. He testified that an exact match for pigment of the hair is more likely to be found if the samples are collected within one or two months of the hair to which it is to be compared. Finally, Settachatgul testified that: “It is to be noted microscopical hair comparison do[es] not serve as a positive mean[s] of individualization.” That is to say, hair sample comparison is not as distinctive as, for example, fingerprinting as a means of identification, and individuals cannot necessarily be identified by hair samples.

The defendant argues on appeal that “[although the evidence in [this] case was not lost or destroyed in [the] traditional sense, its usefulness to the defendant was lost or destroyed.” The defendant concedes that there was no evidence of bad faith on the part of the police. It is undisputed, moreover, that the T-shirt and baseball cap, as well as the hair recovered from them, were preserved properly. The defendant’s claim is that the state’s failure to notify him of the existence of the hair recovered from the scene within two months of the murder violated his due process rights under the federal constitution, because it amounted to a destruction of potentially exculpatory evidence. He makes no claim under the state constitution.

Under the United States constitution, a criminal defendant’s due process rights may be violated by the state’s failure to provide the defendant with evidence within its control in two situations. The first situation is the withholding of exculpatory evidence from the accused. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government].” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Morales, 232 Conn. 707, 714, 657 A.2d 585 (1995); State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

The second situation, which is at issue in this case, is the failure of the police to preserve evidence that might be useful to the accused. “The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. . . . [UJnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Emphasis added.) Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989).

Because the defendant concedes that there was no bad faith on the part of the police, he has failed to demonstrate a violation of his right to due process of law under the federal constitution. Therefore, even if we credit his claim that the hair evidence functionally was destroyed, the defendant’s first claim is without merit.

II

We next address the defendant’s claim that the trial court improperly denied his motion to unseal his arrest warrant and its supporting affidavits prior to his probable cause hearing. The arrest warrant for the defendant was signed on September 15, 1992. Because the investigation was ongoing and because minors were involved, the arrest warrant and its supporting affidavits were sealed pursuant to Practice Book § 593A at the request of the state’s attorney. On October 2, 1992, the defendant moved to unseal the warrant’s supporting affidavits as to defense counsel only. After a hearing on October 26,1992, the trial court, Geen, J., denied the motion.

A

Before the trial court, the defendant relied on the portion of § 593A that provides: “No such order [to seal the supporting affidavits] shall limit their disclosure to the attorney for the accused . . . .” The trial court, however, determined that the motion to unseal the arrest warrant’s supporting affidavits was a motion for discovery, which, pursuant to General Statutes § 54-46a, is not permitted in connection with a probable cause hearing. The trial court concluded that the probable cause hearing replaced the grand jury, and “nobody could get from a prosecutor, before a grand jury came in with an indictment, any affidavits for anything else, and this is the same situation. Instead of using a grand jury, it’s now a hearing in probable cause in front of a judge, and the affidavits that are to support the warrants need not be disclosed, just [as] they wouldn’t have had to have been disclosed had it been a grand jury of eighteen people.”

In the November, 1982 general election, the voters of Connecticut approved a constitutional amendment that abolished the previous constitutional requirement that a grand jury find probable cause before the state could prosecute an individual for crimes punishable by death or life imprisonment. Instead, the 1982 constitutional amendment required that a probable cause hearing be conducted in accordance with the procedures to be promulgated by the legislature. See Conn. Const., amend. XVII; 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Senator Howard T. Owens, Jr. Section 54-46a, enacted in 1983 by No. 83-210, § 1, of the 1983 Public Acts, enunciated those procedures.

A probable cause hearing, unlike a grand jury proceeding, is not veiled in secrecy. See In re Final Grand, Jury Report Concerning the Torrington Police Dept., 197 Conn. 698, 707, 501 A.2d 377 (1985) (“grand jury proceedings have always been presumptively secret”); State v. Hayes, 127 Conn. 543, 580, 18 A.2d 895 (1941) (same); State v. Kemp, 126 Conn. 60, 68, 9 A.2d 63 (1939) (same). At a probable cause hearing, the defendant has the right to counsel and may attend, as well as “participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. ...” General Statutes § 54-46a (b). Moreover, a hearing in probable cause presumptively is open to the public and the court is confined to the rules of evidence, with the exception of written reports of expert witnesses and matters involving the chain of custody of evidence. General Statutes § 54-46a (b).

A probable cause hearing, however, was not designed to be a “mini trial.” 26 H.R. Proc., Pt. 8, 1983 Sess., p. 2941, remarks of Representative Alfred J. Onorato. The defendant, therefore, pursuant to § 54-46a, is not entitled to make a motion to suppress or for discovery. Moreover, a defendant is not necessarily permitted to present evidence and call witnesses. At the close of the prosecution’s case, however, if the court finds that probable cause exists, the defendant “may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the [defendant] to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.” General Statutes § 54-46a (b).

The state argues that the defendant’s motion to unseal the arrest warrant and its supporting affidavits to allow disclosure to defense counsel constitutes a motion for discovery, which is prohibited statutorily in connection with a probable cause hearing. It further argues that Practice Book § 593A and General Statutes § 54-46a can be read harmoniously only if a sealed supporting affidavit is not disclosed to a defendant until after a probable cause hearing has been held. See State v. Kozlowski, 199 Conn. 667, 678, 509 A.2d 20 (1986) (“ ‘[t]he point of the rules of interpretation is to give harmonious effect to all acts on a subject where reasonably possible’ ”). The defendant, on the other hand, argues that his request for disclosure of the affidavits supporting his arrest Warrant is not a motion for discovery. Rather, he contends that the court, pursuant to § 593A, must permit disclosure of the warrant and its supporting affidavits to defense counsel. We agree with the defendant.

Section 593A prescribes the procedure for the sealing of the supporting affidavits of an arrest warrant from public inspection: “At the time the arrest warrant is issued, upon written request of the prosecuting authority and for good cause shown, the judicial authority may order that the supporting affidavits be sealed from public inspection or that disclosure be limited under such terms and conditions as it finds reasonable . . . .” Section 593A was amended, effective October 1,1987, however, to provide: “No such order shall limit their disclosure to the attorney for the accused, but the judicial authority may place reasonable restrictions on the attorney’s further disclosure of the contents of the affidavits. ...”

Pursuant to § 593A, in any criminal case, the attorney for the defendant is entitled to obtain the affidavits supporting the arrest warrant of his or her client. It would be a bizarre result if a defendant accused of a crime not punishable by death or life imprisonment was entitled, pursuant to § 593A, to obtain his arrest warrant and its supporting affidavits immediately after his arrest, yet a defendant accused of a crime punishable by death or life imprisonment would have to wait until after his probable cause hearing to obtain the same documents.

We believe, therefore, that the defendant’s request for the affidavits is not properly characterized as a motion for discovery as contemplated in, and prohibited by, § 54-46a. Furthermore, the release of the warrant and its supporting affidavits to the defendant’s attorney would not “make a hearing of probable cause into a mini trial, an avenue for discovery, an avenue to argue substantive law, or anything else.” 26 H.R. Proc., Pt. 8,1983 Sess., p. 2941, remarks of Representative Alfred J. Onorato (discussing purpose for proposed enactment of § 54-46a). Rather, a request for the release of the affidavits to counsel is a separate procedure, pursuant to the rules of practice, that is compatible with and can coexist with § 54-46a. This procedure is more in keeping with the openness of probable cause hearings, as opposed to grand jury proceedings, wrought by § 54-46a. We conclude, therefore, that the trial court improperly denied the defendant’s request to release the arrest warrant and its supporting affidavits to his attorney.

B

We now need to determine whether the trial court’s refusal to release the arrest warrant and its supporting affidavits to the defendant “was so prejudicial to the rights of the defendant as to deprive him of a fair trial, and so, to constitute harmful error. See State v. Daniels, 180 Conn. 101, 111, 429 A.2d 813 (1980); State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977); State v. L’Heureux, 166 Conn. 312, 324, 348 A.2d 578 (1974).” State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980).

The defendant claims that he was prejudiced by the court’s failure to release the supporting affidavits only in that he was deprived of potentially exculpatory evidence and consequently his right to due process was violated. The defendant conceded that he would not have done anything differently at the probable cause hearing had his attorney received the warrant and its supporting affidavits prior to the hearing, and, therefore, the result of that proceeding would not have been affected. Rather, the defendant argues that had his attorney received the supporting affidavits prior to the probable cause hearing, his attorney would have been aware that the police had discovered the T-shirt and baseball cap at the crime scene, would have concluded that they were repositories of hair and could have requested that comparison hair samples be collected from the defendant within the two month window before the pigment of his hair might be altered due to the change in his diet and environment. We conclude that the trial court’s failure to release the affidavits prior to the probable cause hearing was harmless.

“ ‘[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Pittman, 209 Conn. 596, 608-609, 553 A.2d 155 (1989); State v. Plourde, 208 Conn. 455, 469, 545 A.2d 1071 (1988); State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993). That determination must be made in light of the entire record. See State v. Francis, 228 Conn. 118, 125, 635 A.2d 762 (1993).” State v. Daugaard, 231 Conn. 195, 212, 647 A.2d 342 (1994), cert. denied, U.S. 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). Stated another way, the question is whether it is reasonably possible that the court’s refusal “affected the verdict.” State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); see State v. Carter, 228 Conn. 412, 428, 636 A.2d 821 (1994); State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993); State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982).

We conclude, after a review of the record, that the state has met its burden. Settachatgul testified that the hair recovered from the T-shirt and the baseball cap did not match the samples collected from the defendant, his brother or Smith. Settachatgul’s testimony regarding the hair samples, therefore, was obviously exculpatory. Additionally, Settachatgul testified that microscopical hair comparison is not a positive means of identification because every individual’s hair is not distinct as are, for instance, fingerprints. Moreover, hair from one person may be found on another person’s clothing, and, again unlike fingerprints, a person’s hair may change because of, inter alia, a change in diet or environment. Hair sample evidence, therefore, never will be dispositive.

The defendant argues nonetheless that the state prevented him from discovering potentially superior exculpatory evidence by withholding the supporting affidavits of his arrest warrant until three months after the murder. He claims that the failure of the samples to match the hair found on the T-shirt and baseball cap would have seemed even more exculpatory than it did, if the samples had been obtained promptly and had been analyzed before the possibility of change arose. He argues, therefore, that he lost the opportunity to exculpate himself more fully by hair comparison because the expert’s testimony was less favorable than it would have been had he not also testified that the hair samples could have been different than the hair on the T-shirt and baseball cap by reason of time, diet and environment. The defendant, however, did not request a hair comparison until October, 1993, ten months after he had received the supporting affidavits that referred to the T-shirt and baseball cap. There is no indication that had the defendant received the affidavits earlier he would have asked for a hair comparison within a shorter period of time. Moreover, considering the testimony concerning the fallibility of hair comparisons, there is no indication that the outcome of the trial would have been affected had the samples been obtained sooner. See State v. Carter, supra, 228 Conn. 428; State v. Tropiano, supra, 158 Conn. 427.

Finally, the defendant contends that the state has failed to satisfy its burden to prove that the trial court’s failure to release the arrest warrant and its supporting affidavits was harmless, because the testimony relating to the T-shirt and baseball cap were paramount to the state’s case. We disagree. While it is true that testimony regarding the T-shirt and baseball cap were used at trial to identify the shooter, testimony regarding the hair found on those items of clothing was not central to the state’s case. Rather, the T-shirt and baseball cap were important to the state only to corroborate the testimony of the witnesses who testified that they saw the defendant with his brother Bassell, and Bassell was wearing a light colored T-shirt and a black baseball cap at the time of the shooting, but was wearing something else immediately thereafter. The T-shirt and baseball cap, in other words, were consequential to the state’s case only because they tied Bassell to the crime and the evidence tied the defendant to Bassell.

Moreover, the evidence of the defendant’s guilt was overwhelming. Several witnesses placed the defendant, his brother and Smith outside of the alley with the murder weapon, discussing the possibility of robbing someone, just ten to fifteen minutes before the shooting. Heard and Terrel Staton testified that the defendant’s brother was wearing a black baseball cap at that time. Perkins testified that the shooter had on a light colored T-shirt and a black baseball cap and identified the defendant as one of the individuals involved in the attack on the victim. Council identified the defendant as one of the individuals that she had seen attack and shoot the victim. Mourning gave a statement that just after the shooting the defendant’s brother told him that he had shot somebody. Finally, Jones testified that two days after the shooting, the defendant confessed to him that he, his brother and Smith had shot someone in the alley.

In light of this overwhelming evidence, we conclude that had the defendant’s attorney received the arrest warrant and its supporting affidavits prior to the probable cause hearing, it is not reasonably possible that the outcome of the trial would have been affected. See State v. Carter, supra, 228 Conn. 428; State v. Mason, supra, 186 Conn. 585-86; State v. Tropiano, supra, 158 Conn. 427; see also State v. Ruscoe, 212 Conn. 223, 244, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990) (harmless error when evidence of defendant’s guilt overwhelming); State v. Pittman, 209 Conn. 596, 608-609, 553 A.2d 155 (1989) (same). The failure of the trial court to release the affidavits, therefore, was harmless beyond a reasonable doubt. See State v. Daugaard, supra, 231 Conn. 212.

Ill

In addition to his claim that he was constitutionally entitled to receive the affidavits earlier, the defendant also raises a claim of instructional error. Although he does not assert that the T-shirt and baseball cap should have been suppressed, he maintains that the court, in referring to the T-shirt and baseball cap, should have instructed the jury that “[t]he failure of the state to produce evidence within its power to produce and which should have been produced by the state pursuant to its duty to offer all the available evidence to aid the jury in ascertaining the truth permits the inference that the evidence not produced would have been unfavorable to the state.” The trial court refused the defendant’s request to charge. The defendant claims that the trial court was incorrect in doing so. He argues that the state’s failure to conduct a prompt hair comparison of the defendant’s hair with the hairs found on the T-shirt and baseball cap was akin to the state not producing the evidence at all, to his detriment.

The jury charge requested by the defendant was inappropriate. “[T]he police do not have a constitutional duty to perform any particular tests.” Arizona v. Youngblood, supra, 488 U.S. 59; see also United States v. Rodriguez, 917 F.2d 1286, 1291 (11th Cir. 1990), cert. denied sub nom. Leon v. United States, 502 U.S. 1047, 112 S. Ct. 911, 116 L. Ed. 2d 811 (1992) (“Brady and its progeny apply to evidence possessed either by the prosecutor or by someone over whom he has control. . . . Materials not possessed by the government cannot be suppressed within the meaning of Brady.” [Citation omitted.]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind. App. 1991), superseded on other grounds, 590 N.E.2d 567 (Ind. 1992) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory evidence); Commonwealth v. Richenburg, 401 Mass. 663, 669, 518 N.E.2d 1143 (1988) (failure to perform blood typing analysis permissible ground on which to build defense but does not constitute destruction of potentially exculpatory evidence). The state, in fact, did preserve the evidence that it had in its possession and produced it at trial. The defendant, however, argues that the state had an obligation under the federal constitution to provide him with the evidence sooner because the test results may have proven more exculpatory if the hair comparison had been conducted earlier. The state, however, is under no such obligation. See Arizona v. Youngblood, supra, 59.

Moreover, the defendant’s request to charge was logically flawed. His request read: “Because of the yearlong delay in the state’s examination of such items of evidence it was impossible for the defendant to prove conclusively that the hair strands found were not the hair strands of the defendant or the co-defendants and thereby eliminate any of them as the persons who may have been wearing those items of clothing on the night of the shooting.” (Emphasis added.) While the evidence of the hair comparison when done was not conclusive, hair comparison evidence never is conclusive because, even if hair found on a piece of clothing exactly matches a hair sample, it does not follow, as the defendant contends, that: (1) the person from whom the sample was obtained was wearing the clothing; (2) the suspect’s hair would remain the same for any period of time; or (3) hair comparison positively could identify an individual. It is not because of the state’s delay that the defendant was unable conclusively to eliminate himself and his codefendants as the persons wearing the clothing found at the murder scene. Rather, the defendant and his codefendants could not be eliminated as the persons wearing the clothing because it is impossible, by the very nature of the process, to eliminate a suspect conclusively through hair comparison.

The judgment is affirmed.

In this opinion Peters, C. J., and Norcott and Palmer, Js., concurred.

Berdon, J.,

concurring. I agree with the result reached in this case and with much of the analysis contained in the majority opinion. I write separately on the issue' of whether the arrest warrant and its supporting affidavits should have been disclosed to the defendant or his attorney prior to the defendant’s hearing in probable cause. Although I reach the same result as the majority, I base my decision on a different analysis.

In this case, the court ordered the arrest warrant and its supporting affidavits sealed pursuant to Practice Book § 593A because the police investigation was ongoing and because minors were involved. Section 593A, however, specifically provides that no such order to seal these documents “shall limit their disclosure to the attorney for the accused, but the judicial authority may place reasonable restrictions on the attorney’s further disclosure of the contents of the affidavits.” Nevertheless, General Statutes § 54-46a, which sets forth the procedures governing hearings in probable cause for persons charged with crimes punishable by death or life imprisonment, prohibits discovery. On the basis of this statutory provision, the trial court refused to order the state to disclose the warrant or its supporting affidavits to the defendant or his attorney at or before the hearing in probable cause.

The majority overcomes this “bizarre result” by concluding that the disclosure of an arrest warrant and its supporting affidavits is not discovery. Although I agree with the result, this reasoning eludes me. Surely, ordering the disclosure of an arrest warrant and supporting affidavits is discovery.

In my view, the prohibition of all discovery under § 54-46a violates article second of the state constitution, which pertains to the distribution of power between the three branches of government. Although in Bartholomew v. Schweizer, 217 Conn. 671, 680-81, 587 A.2d 1014 (1991), we made clear that a determination of the court’s procedural rules are a shared power between the judicial and legislative branches of government, the separation of powers concerns articulated in State v. Clemente, 166 Conn. 501, 506-507, 353 A.2d 723 (1974), was not completely emasculated. Any rule of procedure adopted by the legislature must yield to the inherent powers of the court to administer justice. See State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976) (“[a] statute can overstep constitutional bounds . . . if it establishes a significant interference with the orderly conduct of the Superior Court’s judicial functions”). To deprive a defendant of discovery, which may produce evidence that is necessary to effectively cross-examine witnesses at a hearing in probable cause, would interfere with the administration of justice. To that extent, any statutory prohibition must constitutionally give way to the court’s own rules.

Furthermore, the statutory prohibition’s interference with cross-examination during the hearing in probable cause could have significant consequences later, during the trial of the defendant. For example, the state would be prohibited from introducing at trial the hearing testimony of a witness under the “former testimony” exception to the hearsay rule if the defendant had been deprived of the opportunity for effective cross-examination of the missing witness. The former testimony of the missing witness would be excluded because it would not bear “adequate indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); State v. Munoz, 233 Conn. 106, 149, 659 A.2d 683 (1995) (Berdon, J., concurring); State v. Outlaw, 216 Conn. 492, 505, 582 A.2d 751 (1990). Simply put, the state cannot have it both ways: it cannot both withhold information necessary for the effective cross-examination of a witness during the hearing in probable cause, and then also seek to admit that hearing testimony later during trial under the former testimony or another exception to the hearsay rule.

Nevertheless, I agree with the majority that, under the circumstances of this case, the failure to unseal the arrest warrant and its supporting affidavits and to order their disclosure was harmless error.

Accordingly, I concur in the result.

       General Statutes § 53a-54e provides: “felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       The constitutional issue concerning the prohibition of discovery by General Statutes § 54-46a discussed in the concurring opinion was not raised, briefed or argued by the defendant.

       McPhillips was unable to determine whether the bullet that had been retrieved from the wall behind where the victim had fallen was fired from the same weapon because the condition of the bullet prevented him from making a positive identification.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       We recently have considered the issue of police failure to preserve potentially exculpatory evidence under the due process clause of our state constitution. In State v. Morales, 232 Conn. 707, 726-27, 657 A.2d 585 (1995), we held that a trial court, in determining whether a defendant has been afforded due process of law under the state constitution, must weigh “the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ State v. Asherman, [193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)].” Because the state constitutional claim is not here presented, we decide this case only under the federal constitution and express no opinion as to the outcome under the state standard.

       Practice Book § 593A provides in relevant part: “At the time the arrest warrant is issued, upon written request of the prosecuting authority and for good cause shown, the judicial authority may order that the supporting affidavits be sealed from public inspection or that disclosure be limited under such terms and conditions as it finds reasonable, subject to the further order of any judicial authority thereafter having jurisdiction of the matter. No such order shall limit their disclosure to the attorney for the accused, but the judicial authority may place reasonable restrictions on the attorney’s further disclosure of the contents of the affidavits. . . .” (Emphasis added.)

       General Statutes § 54-46a provides: “probable cause hearing for PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause ■ to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.” (Emphasis added.)

       See footnote 7.

       The defendant points out that § 593A is in the chapter of the Practice Book entitled “Procedure Prior to Appearance,” as opposed to the chapter entitled “Discovery and Depositions.” The discovery chapter encompasses §§ 731 through 805 of the Practice Book.

       Because the defendant’s claim that the state destroyed potentially exculpatory evidence was not brought under the due process clause of the Connecticut constitution, we limit our discussion of this issue to the United States constitution.

       The defendant was in custody from the time that he was arrested through the duration of his trial. Thus, it is not implausible that his hair pigment had the potential to change since his diet and environment undoubtedly were altered drastically due to his confinement.

       In response to the defendant’s motion for discovery filed on December 14,1992, the trial court, McGrath, J., ordered open file review on December 21, 1992.

       The defendant’s request to charge provides in relevant part: “The failure of the state to produce evidence within its power to produce and which should have been produced by the state pursuant to its duty to offer all the available evidence to aid the jury in ascertaining the truth permits the inference that the evidence not produced would have been unfavorable to the state. This adverse inference is a permissive one. That is, you may draw the inference but you are not required to depending on whether you think it is a reasonable and logical inference. . . .
      “What we are talking about here is the failure of the state to examine the hat and shirt seized at the scene of the crime in a timely fashion to determine if any hair strands or fibers were on the hat and shirt. Because of the year-long delay in the state’s examination of such items of evidence it was impossible for the defendant to prove conclusively that the hair strands found were not the hair strands of the defendant or the co-defendants and thereby eliminate any of them as the persons who may have been wearing those items of clothing on the night of the shooting.”

       Settachatgul also testified that hair pigment could change if a person chemically treated his or her hair. Thus, hair comparison evidence would not be conclusive, even if hair samples were collected from a suspect on the same day that the crime had been committed, because the suspect could chemically treat his or her hair before the samples were collected. Hair comparison evidence, therefore, cannot provide conclusive evidence exonerating a suspect and, unlike fingerprinting, is not a positive means of identification.

       Practice Book § 593A provides: “All affidavits submitted to the judicial authority in support of the application for an arrest warrant and from which a determination of probable cause for the issuance of an arrest warrant has been made shall be filed with the clerk of the court together with the return of the arrest warrant pursuant to Sec. 972 and thereafter remain a part of the court file.
      “At the time the arrest warrant is issued, upon written request of the prosecuting authority and for good cause shown, the judicial authority may order that the supporting affidavits be sealed from public inspection or that disclosure be limited under such terms and conditions as it finds reasonable, subject to the further order of any judicial authority thereafter having jurisdiction of the matter. No such order shall limit their disclosure to the attorney for the accused, but the judicial authority may place reasonable restrictions on the attorney’s further disclosure of the contents of the affidavits.
      “Any order sealing such affidavits from public inspection or limiting their disclosure shall be for a specific period of time, not to exceed two weeks from the date of arrest, and within that time period the prosecuting authority may seek an extension of the period. Affidavits which have been the subject of such an order shall remain in the custody of the clerk’s office but shall be kept in a secure location apart from the remainder of the court file.
      “Unless the judicial authority issuing an arrest warrant has, upon written request of the prosecuting authority, entered an order limiting disclosure of the supporting affidavits, all affidavits filed pursuant to this section shall be open to public inspection and copy and the clerk shall provide copies to any person upon receipt of any applicable fee.”

       General Statutes § 54-46a provides: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       According to the majority opinion, “[i]t would be a bizarre result if a defendant accused of a crime not punishable by death or life imprisonment was entitled, pursuant to § 593A, to obtain his arrest warrant and its supporting affidavits immediately after his arrest, yet a defendant accused of a crime punishable by death or life imprisonment would have to wait until after his probable cause hearing to obtain the same documents.”

       “Evidence of a witness’s testimony at a prior proceeding may be received in a pending proceeding as an exception to the hearsay rule if certain requirements are met.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.4.1, p. 325.