author: Per Curiam.

text:
    In re Bromell G.

    (13902)
    Peters, C. J., Healey, Shea, Callahan, Glass and Covello, Js.
    Submitted February 20
    decision released April 3, 1990

      Beth A. Merkin and Brian S. Carlow, assistant public defenders, in support of the motion.

      Cathleen M. Edwards, state’s advocate, in opposition to the motion.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Per Curiam.

The respondent has appealed from an order of the Superior Court for juvenile matters, entered pursuant to General Statutes § 46b-127, transferring him to the regular criminal docket in the judicial district of New Haven. That appeal has not yet been heard. In the interim, the respondent has filed with this court a motion for review; see Practice Book §§ 4049 and 4053; of the court’s denial of his motion for a stay of execution of that transfer order. We conclude that the juvenile court erred by not staying execution of the transfer order.-

On November 8,1989, the state’s advocate filed a five count petition alleging that the respondent was a delinquent child, in that he had committed four “serious juvenile offenses”; General Statutes § 46b-120; and had also violated a court order issued on July 24,1989, “by being ‘out’ without a parent” in the city of New Haven. The respondent was fourteen years old at the time of the incident alleged in the petition. On November 15, 1989, the state’s advocate filed a motion requesting that the respondent be transferred to the regular criminal docket of the Superior Court. A hearing was held on that motion on December 14, 1989, after which the juvenile court, issued a written finding, on December 21,1989, that probable cause existed to believe that the respondent had committed the offenses alleged in the petition. See General Statutes § 46b-127. On the basis of this finding the court ordered that the respondent be transferred to the regular criminal docket of the Superior Court.

According to the state, the respondent was presented for arraignment in part B, geographical area number six, in New Haven, on January 9, 1990. Bond was set at $150,000 and the matter was transferred to part A of the judicial district of New Haven. The respondent was also, on January 9, transferred from the New Haven juvenile detention center to an adult pretrial detention facility, where he remains currently incarcerated. Present counsel for the respondent, on January 11, 1990, filed a motion to stay execution of the transfer order. That motion was heard and denied by the Superior Court for juvenile matters, on February 13,1990. The respondent was presented in part A of the judicial district of New Haven, on February 15, 1990, where a hearing was conducted pursuant to General Statutes § 54-46a, after which the trial court, Had-den, J., determined that there existed probable cause to believe that the respondent had committed the offenses with which he had been charged. The current motion, seeking review of the juvenile court’s denial of a stay of execution, was filed in this court on February 20,1990. The opposition of the state’s advocate was filed on March 1, 1990.

In support of his motion for a stay of execution of the order transferring him to the regular criminal docket, the respondent argued before the juvenile court that the automatic stay prescribed by Practice Book § 4046 was applicable in this case, and, alternatively, that the court could also order a stay of the transfer order pursuant to Practice Book § 4047. The court concluded, however, that: (1) the automatic stay provision of § 4046 was inapplicable in this case since that section specifically excludes “juvenile matters” from its operation; (2) while § 4047 might have allowed it to stay execution of the transfer order, thus postponing the impending probable cause hearing on the regular criminal docket, such an order would derogate from the “jurisdiction” already exercised by both the part B and part A courts; and (3) even if it could authorize a stay of the transfer order, this case “should go ahead and follow the ordinary course,” since “under the merits ... [it was] strong enough” to do so.

In the motion for review submitted to this court, the respondent argues that: (1) this case is controlled by the automatic stay provision of § 4046; (2) while this is not technically a criminal case, “the same policy considerations that underlie the automatic stay provision of [Practice Book] § 4048 apply to this case”; (3) the juvenile court had not lost “jurisdiction” over this matter and, thus, could have granted a stay pursuant to § 4047; and (4) the court erred in not concluding that a stay was required in this case. The respondent asks that this court grant a stay of execution and also order that he be returned to the custody of a juvenile detention facility. We agree with the second and fourth arguments put forth by the respondent and conclude that further proceedings should have been stayed in this case and that the respondent should have remained incarcerated in a juvenile detention facility.

“The General Assembly . . . has expressed a preference for shielding children from criminal liability except in clearly circumscribed situations. The additional protections afforded juveniles, which include separation of juvenile matters from other business of the Superior Court; General Statutes § 46b-122; confidential proceedings; General Statutes § 46b-122; anonymity; General Statutes § 46b-124; and erasure of police and court records; General Statutes § 46b-146; demonstrate the legislature’s intent that children accused of wrongdoing be accorded different treatment from adults.” State v. Torres, 206 Conn. 346, 360-61, 538 A.2d 185 (1988). This intent was also manifested in the legislature’s 1986 amendment to § 46b-127, providing that an order transferring a juvenile to the regular criminal docket “shall be a final judgment for purposes of appeal.” See also General Statutes § 46b-126.

Thus, it appears that the legislature has implicitly recognized that the harm to a juvenile that may result from his confinement in an adult detention facility as well as the exposure to publicity likely to result from a transfer order are irreversible consequences of the order that cannot adequately be rectified at a later time even if the juvenile should prevail at trial in a regular criminal proceeding or on appeal from the judgment in such a proceeding. This court has declared that an interlocutory order should be appealable “where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The purpose of the legislature in protecting juveniles from adverse consequences of an erroneous transfer order that can never be remedied later, by providing in § 46b-127 for an appeal of such an order, would be largely defeated if the order were to be implemented while the appeal was pending. Although the rights of a juvenile that may be lost are statutory and not constitutional, those rights are analogous to those of a criminal defendant seeking to avoid a trial that would violate the constitutional protection against double jeopardy afforded by the fifth and fourteenth amendments to our federal constitution. In either case, “the right asserted would be lost, probably irreparably, unless interlocutory review was permitted.” State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983). The ability to halt further proceedings, pending such review, should not depend on whether the right being asserted is constitutional or, as in this case, statutory.

Having reached this conclusion, however, we are confronted by the fact that the rules of this court do not, at present, provide an explicit method for staying execution of juvenile transfer orders. First, § 4046 is not available, despite the respondent’s argument to the contrary, since “juvenile matters brought pursuant to chapters 31 through 40” are specifically excluded from the application of that provision’s automatic stay of execution. Second, § 4048 is not available, as conceded by the respondent, since that provision’s automatic stay of execution is available only in “criminal” cases, and the respondent is appealing from an order entered in a “juvenile” rather than a “criminal” matter. Given the nonavailability of either of the automatic stay of execution provisions, we turn our attention to § 4047, which is applicable “[i]n non-criminal matters in which the automatic stay provisions of Sec. 4046 are not applicable and in which there are no statutory stay provisions . . . .”

Motions for a stay of execution brought pursuant to § 4047 are ordinarily addressed to the sound discretion of the court. In cases such as this, however, that discretion must necessarily be limited by the concerns we have already identified regarding the respondent’s right to have further proceedings halted pending resolution of his statutory right to interlocutory appellate review of the order transferring him to the regular criminal docket. Thus, rather than deciding whether the strength of the state’s case warrants having the respondent tried as an adult, which was the principal basis for the determination made by the juvenile court in this case, the proper inquiry should be whether the state has presented legitimate reasons why that trial, as well as any accompanying pretrial proceedings, should not be stayed until a final determination has been made concerning the propriety of the transfer order itself. In light of our conclusion that certain statutory rights of juveniles will be irrevocably lost if a stay of execution is not granted, it appears that the state will rarely, if ever, be able to present such legitimate reasons. We conclude that it has not done so in this case, and that further proceedings, therefore, should have been stayed pending the outcome of the respondent’s appeal.

The motion for review submitted by the respondent is granted and the relief requested is also granted. We order that pending the outcome of his appeal: (1) the respondent’s case be returned to the juvenile docket; (2) the respondent be returned to the custody of a juvenile detention facility; see General Statutes § 46b-133 (d); and (3) the records of all proceedings having already taken place on the regular criminal docket be placed in the custody of the juvenile court. See General Statutes § 46b-124.

       “[General Statutes] Sec. 46b-127. (Formerly Sec. 51-308). child CHARGED WITH MURDER OR FELONY TRANSFERRED TO REGULAR CRIMINAL DOCKET, when. The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years; (2) any child referred for the violation of any provision of title 53a which is designated as a class A felony, if such violation was committed after such child attained the age of fourteen, provided such child has previously been adjudicated a delinquent at any age for a violation of any provision of title 53a, which at the time of such violation was designated a class A felony; or (3) any child referred for the violation of any provision of title 53a which is designated as a class B felony, provided such violation was committed after such child attained the age of fourteen years, and further provided such child has previously been adjudicated delinquent for two violations of any provision of title 53a, which at the time of such violations were designated a class A or B felony. No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

       “[Practice Book] Sec. 4049. (Formerly Sec. 3067). [automatic stay of EXECUTION] -REVIEW OF ORDER
      “The sole remedy of any party desiring the supreme court to review an order concerning a stay of execution shall be by motion for review under Sec. 4053. Execution of an order of the court terminating a stay of execution shall be stayed for five days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the supreme court rules otherwise.

        “A motion for extension of time to file a motion for review of a ruling concerning a stay of execution must be filed in the trial court but shall not automatically stay the execution after the five days has expired, except that the trial judge may order a stay pending a ruling on the motion for extension of time.
      “A decision concerning a stay is a judgment in a trial to the court for purposes of Sec, 4059.
      “In any case in which there is no automatic stay of execution and in which the trial court refuses or fails to grant a stay expeditiously, an aggrieved party may request one justice of the supreme court to stay execution of the judgment pending the ruling of the trial court or pending the filing of and ruling upon a motion for review.”

       “[Practice Book] Sec. 4053. (Formerly Sec. 3107). [MOTION FOR REVIEW] -IN GENERAL
      “The supreme court may, on written motion for review stating the grounds for the relief sought, modify or vacate any order made by the trial court under Sec. 4040 (a) or any action by the chief clerk of the supreme court under Sec. 4040 (c) (2) or any order relating to the perfecting of the record for presentation to the supreme court or the procedure of prosecuting or defending against the appeal, or any order made by the trial court concerning a stay of execution on appeal. All petitions for review of bail shall be filed in the appellate court. A motion to review an order concerning a stay of execution must be filed within five days from the issuance of notice of the order. Other motions for review shall be filed within ten days from the issuance of notice of the order sought to be reviewed. Motions for review of the clerk’s taxation of costs under judgments of the supreme court shall be governed by Sec. 4119.
      “If a motion for review of a decision concerning a stay depends on a transcript of evidence or proceedings taken by a court reporter, the moving party shall file with the motion either a transcript or a copy of the court reporter’s written acknowledgment of the transcript order. The opposing party may, within one week after the transcript or the copy of the written acknowledgment of the transcript order is filed by the moving party, file either a transcript of additional evidence or a copy of the court reporter’s written acknowledgment of the transcript order.”

       General Statutes § 46b-120 provides in part: “ ‘Serious juvenile offense’ means the violation by a child, including attempt or conspiracy to violate sections 21a-277, 21a-278, 53-80a, 53-390 to 53-392, inclusive, 53a-54a to 53a-57, inclusive, 53a-59 to 53a-60c, inclusive, 53a-70 to 53a-71, inclusive, 53a-72b, 53a-86, 53a-92 to 53a-94, inclusive, 53a-95, 53a-101, 53a-111 to 53a-113, inclusive, subdivision (1) of subsection (a) of section 53a-122, subdivision (3) of subsection (a) of section 53a-123, 53a-134, 53a-135, 53a-166, 53a-167c, subsection (a) of section 53a-174, 53a-196a, 53a-211, or for having without just cause run away from any secure placement other than home while committed as a delinquent child to the commissioner of children and youth services for a serious juvenile offense.”

       The petition alleged that the respondent had: (1) committed murder, in violation of General Statutes § 53a-54a; (2) aided “another who intentionally caused the death” of another person, in violation of General Statutes §§ 53a-8 and 53a-54a; (3) committed attempted robbery in the first degree, in violation of General Statutes §§ 53a-49 and 53a-134; (4) disobeyed a court order, in violation of General Statutes § 46b-120; and (5) committed felony murder, in violation of General Statutes § 53a-54c.

       The respondent has filed an appeal from this order, pursuant to General Statutes § 46b-127. On February 21,1990, we transferred that appeal to our own docket. See Practice Book § 4023.

       The respondent’s present attorneys were appointed after his transfer to the regular criminal docket.

       General Statutes § 54-46a provides in part: “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.”

       This court is unaware of any further proceedings having transpired during the pendency of the motion now before us.

       Practice Book § 4046 provides in part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired .... This section shall not apply ... to juvenile matters brought pursuant to chapters 31 through 40.”

       Practice Book § 4047 provides in part: “In non-criminal matters in which the automatic stay provisions of Sec. 4046 are not applicable and in which there are no statutory stay provisions, application for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the application may be made to any judge of the superior court.”

       Practice Book § 4048 provides in part: “In an appeal from a presentence order where the defendant claims that an existing right, such as a right not to be tried, will be irreparably lost if the order is not reviewed immediately, or in any appeal by the state, there shall be a stay after the appeal has been taken which shall continue until final determination of the appeal by the supreme court. This stay is subject to termination by the trial judge in the manner provided in Sec. 4046.”

       The fifth amendment to the United States constitution, as applied to the states through the fourteenth amendment to the United States constitution; Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); provides in part: “No person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . . ” We have consistently held that a denial of a criminal defendant’s pretrial motion to dismiss, on the ground of double jeopardy, is an appealable final judgment. State v. Van Sant, 198 Conn. 369, 374 n.5, 503 A.2d 557 (1986); State v. Seravalli, 189 Conn. 201, 203-204, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983); State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). In such cases the automatic stay provision of § 4048 becomes effective upon the defendant’s filing an appeal from the denial of his pretrial motion.

       The respondent argues that the operative words in § 4046 are “brought pursuant to chapters 31 through 40” and, since those chapters do not specifically mention transfer orders, he comes within the automatic stay provision. We note that while technically correct, the respondent overlooks the fact that those chapters do, however, encompass a broad range of subjects related to juvenile matters, including both delinquency and neglect hearings, as well as detention orders entered by the court. See Practice Book § 1030. We conclude, therefore, that the respondent’s argument exalts form over substance, this court having provided in § 4046 that the broad range of subjects labeled as “juvenile matters” are precluded from the application of an automatic stay of execution.

       We also recognize that we are, by holding that the automatic stay provisions of §§ 4046 and 4048 are inapplicable in cases such as this, placing upon defense counsel the obligation to move for a stay of execution should their juvenile client desire to file an appeal from an order transferring his case to the regular criminal docket. We are confident that, unlike the original attorney for the respondent in the present case, counsel will take adequate action prior to the actual transfer, so that their clients will not suffer the relinquishment of any statutory rights prior to appellate review of the transfer order.

       General Statutes § 46b-133 (d) provides in part: No child shall be released from detention who is alleged to have committed a serious juvenile offense except by order of a judge of the superior court. In no case shall a child be confined in a community correctional center or lockup, or in any place where adults are or may be confined, except in the case of a nursing infant; nor shall any child at any time be held in solitary confinement.”

       In the event that this court upholds the validity of the juvenile court’s transfer order, these records are to be returned to the part A court, where proceedings against the respondent may be resumed on the regular criminal docket.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Frances Lacasse et al. v. J. William Burns, Commissioner of Transportation Zbigniew Kilian v. J. William Burns, Commissioner of Transportation
    (13776)
    (13795)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued January 2
    decision released April 3, 1990

      Michael E. Grossmann, with whom, on the brief, was Timothy Brignole, for the appellants (plaintiffs in the first case).

      Kenneth I. Friedman, with whom, on the brief, was Michael E. Wolf, for the appellant (plaintiff in the second case).

      Louis B. Blumenfeld, for the appellee (defendant in both cases).
   Shea, J.

Each of these appeals presents the following questions: (1) May a plaintiff take advantage of the accidental failure of suit statute, General Statutes § 52-592, when seeking to bring an action for personal injuries allegedly caused by a defective highway maintained by the state? (2) Does a dismissal entered pursuant to Practice Book § 251 constitute a failure “for any matter of form,” and thus allow a plaintiff to bring suit under the authority of § 52-592? (3) Does service made in accordance with General Statutes § 52-593a "commence” an action as specified in § 52-592? We answer all of these questions in the affirmative and, consequently, conclude that the trial court erred in granting the defendant’s motions to dismiss.

In the first case the plaintiffs, Frances and Marshall Lacasse, brought an action against the defendant, the commissioner of transportation (commissioner), pursuant to General Statutes § 13a-144, alleging personal injuries caused by a defective portion of highway in the town of Granby. The plaintiff in the second case, Zbigniew Kilian, also brought an action against the commissioner pursuant to § 13a-144, alleging personal injuries caused by a defective portion of highway in the town of Berlin. Both actions were dismissed pursuant to Practice Book § 251, on June 19,1987. The present writ, summons and complaint in each case was delivered to a sheriff for the purpose of service upon the commissioner on June 17,1988, in the second case and on June 18, 1988, in the first case. The commissioner filed a motion to dismiss in each action, alleging that: (1) the doctrine of sovereign immunity precluded the bringing of any action against the state under the authority of § 52-592; (2) the dismissal of an action pursuant to Practice Book § 251 did not constitute an accidental failure of suit, as defined in § 52-592; and (3) neither action was “commenced” within one year of the prior dismissals, as mandated by § 52-592.

The trial court, in identical memoranda of decision, disagreed with the commissioner’s second and third contentions, but agreed with the first and, therefore, granted the commissioner’s motions to dismiss. The court reasoned that because § 52-592 contained neither an express nor an implied waiver of the state’s sovereign immunity, the plaintiffs were strictly limited to the remedy provided them in § 13a-144. The court concluded that since there had been “no consent [by the state] to maintain the ‘new action’ described in . . . § 52-592,” the plaintiffs were foreclosed from bringing any action because more than two years had passed since the time of the injuries complained of. General Statutes § 13a-144. We disagree with this reasoning and conclude that the plaintiffs were not precluded from maintaining their actions pursuant to § 52-592.

I

The issue presented by the plaintiffs’ claims of error is whether the legislature, by waiving the state’s sovereign immunity in § 13a-144, intended that procedural statutes and rules of court be applied to the state, just as they would be applied to any other litigant. We conclude that the legislature so intended.

“That a sovereign state is immune from suit, unless it consents to be sued, is the settled law of Connecticut.” Murphy v. Ives, 151 Conn. 259, 262, 196 A.2d 596 (1963); White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 290 (1983). “The General Assembly, by appropriate legislation, can waive the state’s sovereign immunity from suit and authorize suits against the state.” Murphy v. Ives, supra. “Indeed this is what the legislature did in the area of highway defects when it enacted the state and municipal highway liability statutes. The state, which ordinarily would not be liable, permitted itself, as a matter of grace, to be sued under the express conditions of the statute.” White v. Burns, supra. “But the state’s sovereign right not to be sued without its consent is ‘not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms or by force of a necessary implication.’ ” Murphy v. Ives, supra, 262-63, quoting State v. Kilburn, 81 Conn. 9, 11, 69 A. 1028 (1908). Thus, where the state has “permitted itself to be sued in certain circumstances, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed.” White v. Burns, supra.

In applying these principles, our decisions have consistently treated the state with respect to procedural matters, once its immunity has been waived, in a manner identical to any other litigant, except for the taxation of costs; State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978); State ex rel. Foote v. Bartholomew, 111 Conn. 427, 432, 150 A. 308 (1930); State v. Anderson, 82 Conn. 392, 394, 73 A. 751 (1909); or the award of prejudgment interest when a defendant has failed to accept an offer of judgment equal to or less than the amount recovered. Struckman v. Burns, 205 Conn. 542, 556, 534 A.2d 888 (1987). Those cases were based upon the understanding that “[wjhen a generalized statute allows plaintiffs to collect certain varieties of damages in particular types of civil actions ... it does not waive a state’s sovereign immunity in that area unless there is an express waiver.” Id., 559. This principle is inapplicable, however, since the question in these cases is not whether the state’s monetary liability can be expanded beyond that provided by a statute permitting the state to be sued, but, rather, whether the state, having consented to being sued, is subject to procedural statutes applicable to all other litigants.

We have long held that, once involved in an action, the state enjoys the same status as any other litigant. Thus, for example, the state, when it brings an equitable action, opens “the door to any defense or cross-complaint germane to the matter in controversy . . . . A sovereign who asks for equity must do equity.” State v. Kilburn, supra, 12. “[B]y bringing an action, the State subjects itself to the procedure established for its final and complete disposition in the courts, by way of appeal or otherwise.” Reilly v. State, 119 Conn. 217, 220, 175 A. 582 (1934); see State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 160 n.1, 70 A.2d 109 (1949); Winchester v. Cox, 129 Conn. 106, 113, 26 A.2d 592 (1942). We see no reason to depart from this principle when, as in these cases, the state has specifically waived its sovereign immunity and the procedural statute in question affects only the time during which the suit may be brought rather than the potential amount of the state's liability. Cf. Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 402, 99 A. 1048 (1917) (accidental failure of suit statute applicable regardless of whether the statute of limitations is one which concerns the remedy only, or the right as well as the remedy); see Isaac v. Mount Sinai Hospital, 210 Conn. 721, 726-29, 557 A.2d 116 (1989).

Our conclusion that the state is to be treated as any other litigant after being summoned to defend itself pursuant to § 13a-144 is bolstered by the very language of § 52-592, our accidental failure of suit statute. A plaintiff, by the terms of the statute, may “commence a new action . . . for the some came at any time within one year,” when “any action, commenced within the time limited by law, has failed” for any one or more of the enumerated reasons. (Emphasis added.) General Statutes § 52-592 (a). “This language certainly is general and comprehensive. It neither embodies exceptions or reservations, nor suggests any.” Korb v. Bridgeport Gas Light Co., supra, 401. Further, we have consistently held that § 52-592 is remedial in nature and thus, should be broadly and liberally construed. Isaac v. Mount Sinai Hospital, supra, 728, and cases cited therein. We conclude, on the basis of the language and evident purpose of § 52-592, that the trial court erred in concluding that the doctrine of sovereign immunity was applicable to the plaintiffs’ actions, since the statute is procedural in nature and is to be applied, absent further guidance from the legislature, to the state in the same manner as it would be applied to any other litigant.

II

The commissioner argues that the decision of the trial court may be affirmed on the alternate ground that a plaintiff who has suffered a judgment of dismissal pursuant to Practice Book § 251 is precluded from taking advantage of the accidental failure of suit statute, § 52-592. The trial court, on the basis of a statement made by this court in Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34 n.6, 474 A.2d 787 (1984), concluded that a dismissal entered pursuant to § 251 would not bar a subsequent action brought under the authority of § 52-592. In these cases, we agree with the trial court.

The commissioner argues initially that “in applying Section 52-592 to this case, it must be strictly construed so as not to expand the waiver of sovereignty.” This contention, however, is inconsistent with our conclusion in the first portion of this opinion that, once validly summoned into court, the state is to be treated procedurally just like any other litigant. Accordingly, it would make little sense to construe procedural rules and statutes strictly in favor of the state. This is especially true when dealing with a remedial statute such as § 52-592, which is to be “liberally interpreted.” Ross Realty Corporation v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972). Taken to its logical conclusion, the commissioner’s argument would require that we adopt two bodies of procedural law, one applicable to ordinary litigants and another to be applied only to the state. We decline to engage in any such development.

The commissioner next argues that a dismissal under Practice Book § 251 does not constitute a failure for a “matter of form,” because: (1) that term does not include all actions not tried on their merits; Hughes v. Bemer, 206 Conn. 491, 494-95, 538 A.2d 703 (1988); (2) the dismissal is disciplinary in nature and results from irresponsibility rather than mere omission; (3) “[t]he judiciary must have an effective system of case-flow management to prevent cases from clogging dockets because of lack of diligent prosecution”; (4) the order is not necessarily permanent; see General Statutes § 52-212; Practice Book § 326; and (5) it is probable that the judges of the Superior Court chose to utilize the word “dismissal” rather than “nonsuit” in § 251, in order to preclude the application of § 52-592. While we do not necessarily disagree with all of these contentions, we conclude, nevertheless, that in these cases the dismissals pursuant to § 251 constituted failures for a “matter of form,” as that term is used in § 52-592.

While it has been said, in relation to a predecessor of § 52-592, that “[t]he phrase, ‘any matter of form,’ was used in contra-distinction to matter of substance, as embracing the real merits of the controversy between the parties”; Johnston v. Sikes, 56 Conn. 589, 592 (Conn. Super. 1888) (decision by Justice Loomis, sitting in the Superior Court); we have never expressly adopted such a distinction to control the application of the accidental failure of suit statute. Thus, we stated in Hughes v. Bemer, supra, 494-95, that § 52-592 “does not authorize the reinitiation of all actions not ‘tried on . . . [their] merits,’only those that have failed for, among other reasons, ‘any matter of form.’ ” We have held, however, that a dismissal entered pursuant to § 251 “is not an adjudication on the merits that can be treated as res judicata. Gionfrido v. Wharf Realty, Inc., [supra 34 n.6]; Greenwich v. Liquor Control Commission, 191 Conn. 528, 544, 469 A.2d 382 (1983); Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 411-12, 456 A.2d 325 (1983).” Milgrim v. Deluca, 195 Conn. 191, 195, 487 A.2d 522 (1985). On the basis of these holdings, we have also stated, albeit in dicta, that § 52-592 is available to plaintiffs who have suffered a dismissal, pursuant to § 251, for lack of reasonable diligence in the prosecution of their actions. Gionfrido v. Wharf Realty, Inc., supra; see Hughes v. Bemer, supra, 494 n.5.

In cases where we have either stated or intimated that the “any matter of form” portion of § 52-592 would not be applicable to a subsequent action brought by a plaintiff, we have concluded that the failure of the case to be tried on its merits had not resulted from accident or even simple negligence. See Hughes v. Bemer, supra, 495 (failure to file a required memorandum of law operates as a consent to judgment on the merits resulting from granting a motion to strike); Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (dismissal pursuant to Practice Book § 231 for deliberate refusal to answer questions at a deposition); Parrott v. Meachum, 161 Conn. 573, 575, 290 A.2d 335 (1971) (voluntary withdrawal of prior suit); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948) (voluntary withdrawal of prior suit). Unlike these cases, the records in the present appeals reveal nothing about the reasons for dismissal of the plaintiffs’ actions, other than that the orders were entered pursuant to Practice Book § 251. Given the state of the records in these cases, as well as the wide range of circumstances that could logically result in a dismissal under this rule, we conclude that it would be inappropriate to preclude the plaintiffs from taking advantage of § 52-592 and bringing their actions once again.

As we have previously observed, “[i]t cannot be said that a disciplinary dismissal that does not preclude a litigant from commencing another action on the same claim is wholly ineffective as a sanction, since additional legal fees and expenses must be incurred in doing so and the new suit must normally await the disposition of earlier cases.” Milgrim v. Deluca, supra, 195. Further, “dismissals for failure to prosecute are often entered routinely at annual docket clearing proceedings conducted by the court suo motu when the only notice sent prior to entry of such a judgment is a list of numerous cases assigned because certain time frames have been exceeded.” Id., 198. “Under § 251, the trial court is confronted with endless gradations of diligence, and in its sound discretion, the court must determine whether the party’s diligence falls within the ‘reasonable’ section of the diligence spectrum.” Jaconski v. AMF, Inc., 208 Conn. 230, 234, 543 A.2d 728 (1988). In the cases before us, the plaintiffs’ diligence presumably did not fall within the “reasonable” section of the spectrum contemplated by § 251. We conclude that that fact alone, however, is not sufficient to overcome the broad, remedial provisions of the accidental failure of suit statute. We hold, therefore, that the trial court correctly determined that in these cases, the prior dismissals of the plaintiffs’ actions, entered pursuant to § 251, constituted failures “for any matter of form.”

III

The commissioner also claims that the decision of the trial court may also be affirmed on the ground that the plaintiffs’ actions were not “commenced” within the one year time frame specified in § 52-592. The commissioner acknowledges that in both cases the plaintiffs’ writ, summons and complaint were delivered to a sheriff and subsequently served upon him within the time period authorized by General Statutes § 52-593a, “within fifteen days of the delivery” of the writ to a proper officer. The commissioner argues, nevertheless, that because in Connecticut an action is not “commenced” until process is actually served upon the defendant; Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974); Spalding v. Butts, 6 Conn. 28, 30 (1825); and because § 52-592 utilizes the term “commence” rather than the term “brought,” which is found in § 52-593a, the plaintiffs’ actions were barred, service not having been made until one year and one day after the June 19,1987 dismissal of the plaintiffs’ prior actions. When this claim was presented to the trial court, it concluded merely that the “action[s] [were] begun within the statutory time. Conn. Gen. Stat. §§ 52-593a; 52-592.” We agree with the trial court.

Initially, the commissioner’s reliance upon Broderick v. Jackman, supra, and Spalding v. Butts, supra, is misplaced. This court, in Broderick, cited Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 (1941), which interpreted Spalding to have held that “the time when the action is regarded as having been brought is the date of service of the writ upon the defendant.” (Emphasis added.) Consolidated Motor Lines, Inc. v. M & M Transportation Co., supra; see also Seaboard Burner Corporation v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958). Thus, for almost one half century this court has seen no distinction between “commencing” and “bringing” an action. We see no reason to make one now. Additionally, the commissioner has presented us with no logical reason why the legislature would choose to preclude the application of § 52-593a by resorting to whatever grammatical distinction might exist between the terms “commence” and “brought,” when those terms have been used interchangeably to describe the initiation of an action.

There is error on each appeal, the judgments are set aside and the cases are remanded with direction to deny the motions to dismiss and for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 52-592 (a) provides in part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       Practice Book § 251 provides in part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in eases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so. requests.”

       During the time period relevant to these appeals, General Statutes § 52-593a provided in part: “(a) A cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to an officer authorized to serve the process or is personally delivered to the office of any sheriff within the time limited by law, and the process is served, as provided by law, within fifteen days of the delivery.”

       General Statutes § 13a-144 provides in part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner.”

       The commissioner filed a preliminary statement of issues in each appeal setting forth, as alternate grounds upon which the judgment of the trial court may be affirmed, the other issues raised in his motion to dismiss but decided by the trial court in favor of the plaintiffs. The plaintiffs have fully briefed both issues. See Practice Book § 4013 (a) (1).

       In Skinner v. Angliker, 211 Conn. 370, 559 A.2d 701 (1989), this court held that the state’s waiver of sovereign immunity in a suit pursuant to General Statutes § 31-51q for a wrongful discharge claimed to have been motivated by the plaintiff’s exercise of his constitutional right of free speech did not entitle the plaintiff to a jury trial, whether or not actions for wrongful discharge may have been triable to a jury in this state prior to the adoption of our state constitution in 1818. See General Statutes § 52-215. The court in Skinner treated the state differently from other litigants with respect to actions triable to a jury not simply because of its sovereign status but because “[n]o principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims.” (Emphasis added.) Id., 377. The plaintiff's action did not, therefore, fall within the class of actions triable to a jury prior to 1818.

       General Statutes § 52-592 (a) specifically provides that its provisions are available when the prior action was “avoided or defeated ... for any matter of form” or when “a judgment of nonsuit has been rendered” in the prior action. Thus, while all judgments of nonsuit are included within the scope of § 52-592, the proper inquiry is not whether the use of the term “dismissal” rather than “nonsuit” in Practice Book § 251 is particularly significant, but, rather, whether a “dismissal” entered pursuant to § 251 results in the prior action having been “avoided or defeated . . . for any matter of form.” We note also that § 52-592 (a), is expressly made available to a plaintiff whose prior action was “dismissed for want of jurisdiction.” (Emphasis added.)

       Compare General Statutes §§ 52-575 (“commenced” and “bring”), 52-575a (“brought” and “commenced”), 52-576 (“brought”), 52-577 (“brought”), 52-577a (“brought”), 52-577b (“commenced”), 52-577c (“brought”), 52-577d (“brought”), 52-578 (“brought”), 52-579 (“brought”), 52-581 (“brought”), 52-582 (“brought”), 52-583 (“brought”), 52-584 (“brought”), 52-584a (“brought”), 52-584b (“brought”), 52-585 (“brought”), 52-586 (“brought”), 52-587 (“brought”), 52-588 (“brought”), 52-589 (“brought”), 52-591 (“bringing” and “commence”), 52-592 (“bringing,” “brought” and “commence”), 52r593 (“bring”), 52-593a (“brought”), 52-594 (“institute”), 52-596 (“brought”), and 52-597 (“brought”).


author: Hull, J.

text:
    State of Connecticut v. Harland S. Haye
    (13730)
    Peters, C. J., Glass, Covello, Hull and F. X. Hennessy, Js.
    Argued February 8
    decision released April 10, 1990

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Dennis O’Connor, and John Malone, assistant state’s attorneys, and Lawrence Daley, former assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Harland S. Haye, has appealed from his conviction upon a conditional plea of nolo contendere to an information charging him with murder in violation of General Statutes § 53a-54a. The trial court imposed a sentence of twenty-five years imprisonment. On appeal, the defendant claims that the trial court erred in denying his motions to dismiss, for lack of jurisdiction, the information charging him with the crime of murder, because the probable cause hearing required by General Statutes § 54-46a was not held within sixty days of the filing of the information in the Superior Court. We find no error.

The defendant’s claim is based on the following procedural facts. On December 15, 1987, an information charging the defendant with the crime of murder was filed in the Hartford Superior Court. Pursuant to § 54-46a, a probable cause hearing was scheduled for February 5, 1988. On February 5, 1988, the state requested, without objection by the defendant, that the probable cause hearing be continued for six days, due to the state’s difficulty in procuring its witnesses. The court, Byrne, J., granted the continuance and rescheduled the probable cause hearing for February 11,1988.

The state, however, was unable to secure three of its witnesses by February 11, 1988, and on that date again requested that the court, Byrne, J., continue the date of the probable cause hearing. Recognizing that its request would establish a hearing date beyond the sixty day limit provided in § 54-46a (b), the state, in order to show good cause, offered the following explanation: “We have four witnesses to this incident. One is dead — having been, I believe, shot in New York City. One . . . has a warrant outstanding for murder against him and is in parts unknown. Two other witnesses have contacted us; and, one, particularly was suppose [sic] to be here and is not. And, that person ... is essential to the presentation of the case; and we are making every effort to locate him. [Our] [inspector . . . has spread his business card throughout a particular area in Hartford to try to locate him. We’ve had contact from the gentleman. . . . [T]he mother of this particular witness . . . had assured us that her son would be here. He would not — when I talked to him the other day . . . give me his phone number or his address. He indicated that he would be here. He is not.” The state then explained, in response to questioning from the court, that subpoenas had not been issued because the state was unaware of the witnesses’ whereabouts. In conclusion, the state argued: “I represent to the Court, as a commissioner, that we have made — as far as I can see — every possible effort, short of physically grabbing someone and we will continue to make that effort, if the Court grants my request for a continuance for good cause shown; which, I believe, has been established.”

The defendant objected to the requested continuance, arguing as follows: “This is the second continuance the State has had. This was originally scheduled for — on— last week, on February 5th and the State was given a continuance until today, to try and get their witnesses, as he stated. Subpoenas have not been issued. The defendant certainly objects to any continuance beyond the sixty day period. I don’t believe there’s any cause on the defendant’s part. I mean — he hasn’t necessitated the delay in any way and I don’t think he should be penalized because the State can not produce their witnesses. I would object to the delay.”

Despite the defendant’s objection, the court granted the state’s request for a continuance and rescheduled the probable cause hearing for February 25,1988. The court stated in making its ruling, that “the State [had] shown good cause, but [that it would] not give any extension past February 25th.” The defendant then asked that his objection to the continuance be noted.

The defendant thereafter filed a motion, dated February 23,1988, to dismiss the information charging him with murder, claiming that “[n]o good cause [was] shown to continue the preliminary hearing beyond 60 days [and therefore the] court lack[ed] personal jurisdiction over [the defendant].” This motion was denied by the court, Ripley, J., on February 25,1988. Consequently, on that same date, seventy-two days after the information against the defendant had been filed in the Superior Court, the hearing was held at which it was determined that probable cause existed to try the defendant for the crime of murder.

On September 23,1988, the defendant filed another motion to dismiss the information charging him with murder. The defendant argued that the granting of the state’s second continuance had violated his due process rights, because the extension was granted solely on the representations of the state, rather than on findings of fact made pursuant to an evidentiary hearing. Because the continuance had been improperly granted, causing the probable cause hearing to be improperly delayed, argued the defendant, the court lacked jurisdiction to try him for the crime of murder. The court, Freed, J., denied the defendant’s motion, citing two reasons for its ruling: the defendant’s failure to object on February 11, 1988, to the fact that no evidentiary hearing was held; and the court’s finding that the uncontested representations made by the state were “sufficient, both procedurally and factually, for a finding and a determination that there was good cause shown and that a continuance could properly be granted pursuant to the Statute.” The defendant thereafter entered a conditional plea of nolo contendere to the charge of murder.

The defendant renews on appeal his claim that the court had no jurisdiction to try him for the crime of murder, because the probable cause hearing was not held within sixty days of the filing of the information charging him with that crime. Although the defendant recognizes that the sixty day period may, by statute, be extended “for good cause shown,” he presents a threefold argument: (1) given that no evidentiary hearing was conducted prior to the granting of the continuance, the state necessarily did not meet its burden of showing good cause; (2) in the absence of a showing of good cause, the date of the probable cause hearing could not be extended beyond the sixty day limit set by statute; and (3) since the probable cause hearing was conducted seventy-two days after the filing of the information, that information should have been dismissed due to the court’s lack of jurisdiction over the defendant. Because we do not agree that the court was required, under the facts here presented, to conduct an evidentiary hearing, the defendant’s claim of error crumbles at its foundation.

It is not disputed that the defendant “has a constitutional right not to be tried without probable cause being found according to the procedures set forth in General Statutes § 54-46a . . . . ” State v. Ramos, 201 Conn. 598, 602-603, 519 A.2d 9 (1986). That statute provides that a probable cause hearing “shall be conducted within sixty days of the filing of the complaint or information in superior court” unless “extended by the court for good cause shown.” General Statutes § 54-46a (b). The statute contains no requirement that an evidentiary hearing be held prior to the court’s finding of good cause. “It ... is not our function to attempt to improve upon the actions of the legislature by reading into the statute what is clearly not there . . . ."Doe v. Manson, 183 Conn. 183, 188, 438 A.2d 859 (1981).

This is not to say that an evidentiary hearing may never be warranted when a request for a continuance is made pursuant to § 54-46a (b). The facts of the instant case, however, did not warrant a hearing. The defendant did not challenge the accuracy of the state’s representations as to the reasons for its request for a continuance, but rather, objected to the continuance only in general terms. Furthermore, the defendant did not claim surprise or ask that he be given time to explore the factual basis of the state’s representations. Simply, the defendant did not request an evidentiary hearing nor did he articulate any objection that would have indicated to the court the necessity for such a hearing.

The defendant argues that an evidentiary hearing was required despite his failure to object to the representations made by the state, because representations of counsel, absent the presentation of evidence, cannot support a finding of good cause to continue a probable cause hearing. We find no merit to the defendant’s claim. To impose a requirement of a factual showing in every case to support representations of counsel concerning such matters would impugn the veracity of counsel and impose a staggering burden of time and effort on our already overburdened court system. Evidentiary support of counsel’s representations may be found necessary by the court only under certain contested circumstances; see State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987); or where otherwise required by statute, our rules of practice, or the rules of evidence.

The only question before us, therefore, is whether, based upon the state’s representations, the court erred in granting the state’s request for a continuance. In answering this question, we find instructive those cases dealing with requests for continuances in other contexts. “The law is clear that requests for continuances are matters of judicial discretion and that on review every reasonable presumption in favor of the trial court’s discretionary ruling will be made. State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974). The trial court’s decision will be reversed only if it represents a gross abuse of discretion . ‘ “ ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.’ ” ’ State v. McKnight, supra, 576; State v. Bethea, supra. Rather, the answer must be found in the particular facts of each individual case. State v. McKnight, supra.” State v. Gordon, 197 Conn. 413, 424B, 504 A.2d 1020 (1985). The party seeking the continuance has the burden of establishing good cause for such a continuance. See id.

Under the circumstances of this case, the court did not abuse its discretion in granting the state’s request for a continuance for good cause shown. The state represented that it was having difficulty in procuring several essential witnesses, articulated the reasons for the difficulty, and further explained to the court the efforts it had made to contact those witnesses. The determination that the state had shown good cause for extending the sixty day limit of § 54-46a was certainly within the discretion afforded the trial court on such matters. Probable cause was thus found according to the procedures set forth in § 54-46a. Accordingly, we find that the trial court had jurisdiction to try the defendant for the charge of murder, and did not err in denying the defendant’s motions to dismiss.

There is no error-.

In this opinion the other justices concurred.

       General Statutes § 54-94a provides: “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 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 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.”

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

       General Statutes § 54-46a provides in pertinent part: “(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. . . .”

       February 13,1988, was the sixtieth day after the filing of the information in the Superior Court.

       It is significant that the legislature has specifically provided for evidentiary hearings in other contexts. See, e.g., General Statutes § 54-46a (b) and (c) (providing for an evidentiary hearing prior to the finding of probable cause); General Statutes § 54-56d (e) (providing for an evidentiary hearing prior to the court’s ruling on competency).

       The defendant claims in his reply brief that there were factual issues in dispute that required an evidentiary hearing to determine whether good cause existed for a continuance. The record is devoid of any such claim to the trial court on February 11, 1988.

       The defendant argues that this court’s decision in State v. Aillon, 202 Conn. 385, 521 A.2d 555 (1987), supports his contention that representations of counsel, unsupported by evidence, cannot be relied upon by the court in finding good cause to grant a continuance. We find that decision to be clearly distinguishable from the instant case. In Aillon, we did determine that unsupported representations of defense counsel had been insufficient to establish either the unavailability of an expert witness or the defendant’s need for a continuance to acquire a substitute witness. We did not say that representations of counsel can never be sufficient, but held that under the circumstances presented in Aillon, the representations simply were inadequate. In that case the unsupported representations of counsel were insufficient because the state at trial challenged those representations and put the defendant to his burden of proof. Id., 391, 394. As we have discussed, the defendant in the instant case did not specifically object to the state’s explanation for its request of a continuance, but, rather, objected only generally to that continuance.


author: Covello, J.

text:
    Josephine Rametta v. Conrad A. Stella et al.
    (13784)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 31
    decision released April 10, 1990

      Robert M. Shields, Jr., with whom were Jeffrey A. Hoberman and, on the brief, Wesley W. Horton, for the appellants (defendants).

      Michael P. Barry, for the appellee (plaintiff).
   Covello, J.

This is an appeal from the decision of the Appellate Court affirming a judgment of the trial court, Maloney, J., that the defendants Conrad A. Stella (Stella) and Stella Insurance Agency, Inc. (agency), were negligent in failing to obtain fire insurance on the plaintiff’s property, and that the agency breached its contract with the plaintiff to provide that insurance. The trial court awarded the plaintiff $60,300 in damages. The issues certified on appeal are: (1) in a tort action, does the collateral source rule apply to proceeds received by the plaintiff which are not payments of compensation for the plaintiff’s injury or loss; and (2) in a contract action, must the calculation of the plaintiff’s damages consider the effect of the third party sales agreement entered into subsequent to the breach, which would diminish the plaintiff’s actual loss. We answer both questions in the negative, and we affirm the decision of the Appellate Court.

The trial court found the following: The plaintiff owned certain real property on Rocky Hill Avenue in New Britain that consisted of ten lots and a 235 year old house which had been divided into three apartments. The defendant Stella was a licensed insurance agent and broker, and was the president and principal stockholder of the defendant agency. The plaintiff had used Stella as her insurance agent for many years. In the past Stella had obtained insurance on several properties owned by the plaintiff, including the Rocky Hill Avenue property. The plaintiff customarily would consult Stella about the amount of coverage to obtain, and then follow his recommendation. Typically, Stella selected the insurance company for the plaintiff from among several that he represented. The plaintiff left the choice of insurer entirely within Stella’s discretion. The plaintiff customarily paid all insurance premiums to the agency, after the defendants had already advanced the amount due to the insurance company and had obtained the policy for the plaintiff. Stella then would either bill the plaintiff or visit her at her home in Old Lyme to collect the amount due.

In March or April, 1986, the plaintiff met with Stella at the agency office and told him that she was considering selling the Rocky Hill Avenue property. At that time the property was insured for $60,000 against loss by fire under a policy issued by the Terra Nova Insurance Company, Ltd. On March 29, 1986, the defendants received a copy of a notice from the Terra Nova Insurance Company, addressed to the plaintiff, that stated that the policy would not be renewed after its expiration on May 6, 1986. On May 2, 1986, the plaintiff went to the agency and met with the office manager, Maria Stella. The plaintiff told Ms. Stella that she had a buyer, Frank Pascale, for the property, and that she wanted insurance coverage to protect her interest until the closing date. The plaintiff paid $300 as a deposit for the insurance and stated that she would pay the balance when the exact amount due was determined. Ms. Stella gave the plaintiff a receipt that stated “Dep. for pol. to be ordered for 319 Rocky Hill Ave. Fire Ins.”

After the May 2, 1986 meeting with the plaintiff, Stella unsuccessfully attempted to obtain $60,000 coverage on the property from one of the various insurance companies that the agency represented. The defendants then, as a last resort, applied for coverage to the Connecticut Insurance Placement Facility (Fair Plan), a pool of insurers that provides coverage for risks that are uninsurable on a direct basis. On June 11,1986, Fair Plan sent an approval notice to the defendants, which the defendants received on June 12. The plaintiffs notice of approval was sent to the 319 Rocky Hill Avenue address, which was the address the agency had indicated on the application as the location of the property. The defendants knew that the plaintiff did not reside at 319 Rocky Hill Avenue, yet they had not included any other mailing address for her and thus, she never received this notice.

The approval notice stated that Fair Plan would provide fire insurance coverage in the amount of $60,000 for a premium of $650. The agency never paid the Fair Plan premium. Stella never told the plaintiff that the agency was departing, in this instance, from its customary practice of advancing the required premiums to the insurer. Because the premium was never paid, no insurance was issued by Pair Plan, and the property remained uninsured without the plaintiffs knowledge. On July 4,1986, the house at 319 Rocky Hill Avenue was destroyed by fire. Damage to the building exceeded $60,000.

After the fire, the plaintiff refused to sell the property to Pascale, and Pascale brought suit against her, seeking specific performance of their contract. On October 3,1986, the plaintiff reached a new agreement with Pascale, whereby he agreed to withdraw his suit, and she agreed to sell the property for the original sales price of $190,000. The plaintiff also agreed to institute an action against the defendants for their failure to obtain insurance on the property and to divide the proceeds of any recovery with Pascale.

The plaintiff then brought the present action against the defendants in two counts, claiming: (1) that both defendants were negligent in failing to obtain insurance oft the property; and (2) that the defendant agency breached its contract to obtain insurance on the property. On July 21,1988, the trial court found the defendants jointly and severally liable on the negligence count and found the agency liable on the breach of contract count. The trial court then awarded $60,000 in damages on the negligence count and, in the alternative, $60,300 damages on the contract count.

The defendants appealed to the Appellate Court, claiming that the trial court had erred in concluding that the plaintiff had suffered actual loss, inasmuch as she had obtained the same price for her property after it had been damaged by fire as she would have obtained before the fire occurred. In Rametta v. Stella, 19 Conn. App. 223, 562 A.2d 67 (1989), the Appellate Court affirmed the trial court’s judgment. The Appellate Court concluded that the defendants’ negligence resulted in an immediate loss to the plaintiff of the value of the fire insurance policy that should have been in effect at the time of the fire. The Appellate Court further concluded that the plaintiff’s subsequent renegotiation of the agreement to sell the property was completely independent of and collateral to the defendants’ acts of negligence and their resulting liability. The defendants filed a petition for certification to appeal to this court, which we granted, limited to the certified issues previously stated.

An action against an insurance agent for failure to obtain insurance may be brought under a theory of either negligence or breach of contract. Ursini v. Goldman, 118 Conn. 554, 559-60, 173 A. 789 (1934). The measure of the plaintiff’s damages is the amount that should have been recovered under the policy. Id., 563. In the present case, the trial court determined that the defendants’ negligence resulted in an immediate loss to the plaintiff of $60,000, i.e., the value of the policy that should have been in effect at the time of the fire.

Under the collateral source rule, “a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him.” Lashin v. Corcoran, 146 Conn. 512, 515, 152 A.2d 639 (1959); Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 579, 271 A.2d 94 (1970). “The basis of our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source. That rule is applicable ... in any tort case.” United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 101-102, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972).

The defendants argue that the proceeds from the renegotiated contract for the sale of the subject property are not a “payment” for such injuries or damages within the meaning of the collateral source rule, and therefore, they should be credited against the loss suffered by the plaintiff. We agree that the collateral source rule is inapplicable to the proceeds received by the plaintiff but disagree that there must therefore be a different result in this case. The types of payments that typically come within the collateral source rule include insurance proceeds, medical benefits, and payments made by an employer pursuant to a statutory compensation scheme. See, e.g., Gorham v. Farmington Motor Inn, Inc., supra; see also Apuzzo v. Seneco, 178 Conn. 230, 233, 423 A.2d 866 (1979); Healy v. White, 173 Conn. 438, 448, 378 A.2d 540 (1977).

We decline to extend the application of the collateral source rule to encompass the proceeds received by the plaintiff from the subsequent sale of her property. The subsequent sales agreement between the plaintiff and Pascale for the sale of the property at the original sales price was a completely independent act that was wholly unrelated and irrelevant to the defendants’ negligence and the damages that thereafter followed. The sales proceeds did not reimburse the plaintiff for the $60,000 she would have received from an insurer had the appropriate policy been in force, but in fact reflected the parties’ perception of the fair market value of the property regardless of the fire. Had her property been insured by the defendants, the plaintiff would still have been in a position to renegotiate her sales agreement, and she would have been free to dispose of the insurance proceeds in any manner she desired. “ ‘[W]hat the plaintiff does with an award . . . is of no concern to the court . . . .Gorham v. Farmington Motor Inn, Inc., supra, 581; see also Conestoga Chemical Corporation v. F. H. Simonton, Inc., 269 A.2d 237, 240 (Del. 1970).

The plaintiff suffered an actual economic loss that was not compensated by the proceeds of the subsequent sale of her property. While the proceeds from the subsequent sale of the property, a sale that was renegotiated after the destruction of the property, do not qualify as a payment within the ambit of the collateral source rule, they are nonetheless so remote and unrelated to the insurance transaction and the defendants’ negligent acts, that to apply them to relieve the defendants of liability for the resulting damages would result in an unconscionable windfall for the defendants. “ ‘ “If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer shall be relieved of his responsibility for his wrongdoing.” ’ Gorham v. Farmington Motor Inn, Inc., [supra, 580], quoting Grayson v. Williams, 256 F.2d 61, 65 (10th Cir. 1958); see also Ekblade v. Anderson, [28 Conn. Sup. 177, 179, 255 A.2d 865 (1969)].” Rametta v. Stella, supra, 229.

The agency further argues that the subsequent sale of the plaintiff’s property must be considered in determining whether the plaintiff has suffered any actual loss arising from the breach of contract. The defendant specifically asserts that in entering into the renegotiated sales agreement, the plaintiff was simply discharging her legal duty to mitigate damages. See West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986); Newington v. General Sanitation Service Co., 196 Conn. 81, 85, 491 A.2d 363 (1985).

The rights of the parties to an insurance contract are determined at the time or moment the loss is sustained, and damages are measured as of the date of the breach. West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988); Vines v. Orchard Hills, Inc., 181 Conn. 501, 513, 435 A.2d 1022 (1980); Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976); Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). In this instance, the plaintiffs damages were fixed at the moment that the fire loss exceeded the $60,000 value of the policy. Since both the loss and the subsequent damages were fixed at that time, there was nothing the plaintiff could do further to mitigate them. The concept of mitigation of damages presupposes that an injured party has one or more courses of conduct available at or after the time a breach occurs and an obligation therefore exists to pursue that course that results in the least damages to the offending party. See generally 3 Restatement (Second), Contracts § 350 (1981), and the accompanying comments.

The general rule of damages in a breach of contract action is that the award should place the injured party in the same position as he would have been in had the contract been performed. Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988); Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980); Johnson v. Healy, 176 Conn. 97, 105, 405 A.2d 54 (1978); Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 (1958); see also 3 Restatement (Second), Contracts §§ 344 (a), 347 (a) and (b), and comments contained therein. In this instance, had the contract been performed, the plaintiff would have received $60,000 from an insurer, to dispose of at her discretion. The fact that the plaintiff thereafter fortuitously renegotiated her contract with Pascale, in effect entering into a new agreement with him, is irrelevant to the amount of damages that were previously determined. Levesque v. D & M Builders, Inc., supra, 183; see also Milwaukee Mechanics Ins. Co. v. Maples, 37 Ala. App. 74, 85, 66 So. 2d 159, cert. denied, 259 Ala. 189, 66 So. 2d 173 (1953); Nahmias Realty, Inc. v. Cohen, 484 N.E.2d 617, 622 (Ind. App. 1985); see also 3 Restatement (Second), Contracts § 347, comment b.

The decision of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The plaintiff executed a bond for deed under which she agreed to sell the 319 Rocky Hill Avenue property to Pascale for $190,000, and in which she agreed to assume the risk of any loss due to fire until the closing date, July 31, 1986. The plaintiff further agreed to maintain insurance on the property, and in the event that the building was destroyed by fire, any insurance proceeds would be paid to Pascale. The agreement also provided that if there was no insurance in force at the time of a fire, the sales price would be reduced by the insured value of the prior insurance policy.

       The premium shown on the agency’s notice was $585. The difference represented the agency’s commission.

       The agency, without informing the plaintiff, applied the $300 deposit that the plaintiff had paid on May 2, 1986, to unrelated charges owed by the plaintiff.

       During the period from May 2, 1986, to July 4, 1986, the defendants did not communicate with the plaintiff.

       That figure represents the $60,000 the plaintiff would have received had the policy been in effect at the time of the fire and the $300 deposit the plaintiff had given to the defendant agency to be applied toward the purchase of an insurance policy. The trial court specifically found that $60,000 in damages was attributable to the defendants’ negligence, and that $60,300 in damages was attributable to the defendant agency’s breach of contract.

       Although we will ordinarily consider certified issues in the form in which they have been framed in the Appellate Court, “we are not limited to the issues presented in the petition if the judgment of the Appellate Court may be affirmed on some other ground.” State v. Hodge, 201 Conn. 379, 384, 517 A.2d 621 (1986); see also Nardini v. Manson, 207 Conn. 118, 119, 119-20 n.1, 540 A.2d 69 (1988); State v. Torrence, 196 Conn. 430, 433, 434 n.5, 493 A.2d 865 (1985).


author: Santaniello, J.

text:
    State of Connecticut v. James Flanders
    (13344)
    Peters, C. J., Healey, Glass, Hull and Santaniello, Js.

      Argued January 9
    decision released April 10, 1990

      Ronald Gold, assistant public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Herbert Carlson, Jr., assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, James Flanders, was charged by information on January 23,1987, with the crimes of murder in violation of General Statutes § 53a-54a and felony murder in violation of General Statutes § 53a-54c. On October 13,1987, the information was amended, and he was charged with a third count, burglary in the second degree in violation of General Statutes § 53a-102 (a). After a jury trial, the defendant was acquitted of murder and convicted of both felony murder and burglary in the second degree. He was sentenced to an effective term of imprisonment of sixty years. On appeal, he claims that the trial court erred in: (1) refusing to admit into evidence statements made by the victim claimed to be admissible under the spontaneous utterance exception to the hearsay rule; (2) refusing to order the state to file a supplemental bill of particulars, thus denying him the right to notice of the charges against him in violation of his rights as guaranteed by the United States and Connecticut constitutions; and (3) failing to charge the jury on felony murder as requested, thus denying him his constitutional right to a unanimous verdict as guaranteed by the United States and Connecticut constitutions. We find no reversible error.

The jury could reasonably have found the following facts: Wladyslaw, Stanislaus, and Jan Brzoska were Polish immigrants who lived together in a third floor apartment at 174 Broad Street in New Britain. Wladyslaw and Stanislaus were brothers, and Jan was their cousin. They spoke little English. On Saturday, September 20,1986, they attended the New Britain Harvest Festival together. While returning home between 1 and 1:30 a.m., Wladyslaw and Stanislaus, both of whom were feeling the effect of alcoholic beverages consumed that evening, were approached by a black woman, Annette Conaway, at a street comer near their apartment.

Conaway had met with the defendant, James Flanders, shortly before her encounter with Wladyslaw and Stanislaus. He had asked her what she was doing, and after she stated that she was waiting for some drunk men to come along so that she could hustle them, the defendant stated, “Well, I’m going to stay with you.” She replied, “I don’t care.”

When Conaway saw the two Brzoska brothers approaching, she walked across the street to speak with them. She was invited to their apartment, and she and the men walked across the street and into the alley leading to the apartment. While accompanying the brothers, she gave the defendant a wave, which he took to mean “come on.” After arriving at the brothers’ apartment, Conaway went to the kitchen and poured three glasses of vodka. Stanislaus gave a $20 bill to Conaway, and she went into Stanislaus’ bedroom with the two brothers where discussions ensued. Stanislaus changed his mind and asked for the $20 back, but Conaway refused to comply. Looking from the bedroom door, she saw the defendant standing next to the refrigerator attempting to lift a television set that was in the kitchen. She was not surprised to see the defendant in the kitchen because, “We was hustling together.” Conaway and the two brothers argued for a period of time about her failure to perform promised services and the return of the $20. Conaway and Wladyslaw moved from the bedroom into the kitchen and continued to argue about the return of the money. Stanislaus remained in the bedroom and went to sleep. Conaway finally gave Wladyslaw two $1 bills. He was upset and remonstrated, pantomiming about getting a knife and stabbing “somebody’s eyes out.” Conaway left the apartment and went across the street to wait for the defendant near a furniture store.

At the time Conaway left the apartment, she did not know where the defendant was, although at one point she saw him walk in the direction of the apartment exit door. About one hour later, Conaway returned to the apartment because, “I knew I had poured that vodka in the glasses. I knew my fingerprints would be on the glasses.” She got on her knees to look under the kitchen door. She saw Wladyslaw lying on the floor with blood on his chest.

At or about the same time, Stanislaus was awakened from his sleep by the sound of his brother moaning the word “oye.” Stanislaus went into the kitchen where he found his brother lying on the floor, the victim of a stab wound to the chest area. Stanislaus asked his brother what happened. “[Tjhen he said that to this black-to this charnota, I was stabbed.” Wladyslaw then asked Stanislaus to call his sister and an ambulance. As Stanislaus was calling their sister, Regina Deblowski, his cousin, Jan Brzoska, returned to the apartment. When Regina arrived at the apartment, she saw Wladyslaw lying on the floor and heard him say, “Oh, mother of God,” and then he said nothing further. Regina then called her sister-in-law, Janina Brzoska, and within ten to fifteen minutes, Janina and her husband arrived at the apartment. Shortly thereafter the police were called. Wladyslaw, who was unconscious, was treated and removed by emergency medical technicians to New Britain General Hospital where he died.

At trial, the state presented four witnesses who testified that the defendant made certain admissions to them. Eddie Rose, Jr., testified that he spoke with the defendant by telephone after September 21 and that the defendant had said, “Four guys were coming at me- and one had a knife.” He further said, “I had to jug one with a knife.” Lois Brown testified that the defendant had told her that he grabbed a man’s wrist and stabbed him with the man’s own knife and that this had taken place on Broad Street. Shirley Williams testified that she was walking'in New Britain late on September 20 or early September 21, when she encountered the defendant running. In response to her questions, the defendant said that he and Annette Conaway had been at a house on Broad Street. Several men had tried to attack them and he had stabbed one of them with a kitchen knife. Willie Holley testified that he was present when Shirley Williams and the defendant had their conversation and confirmed Williams’ testimony.

When the defendant was arrested, he was found hiding in a closet in his brother’s apartment. Testimony at trial revealed that the defendant’s partial palm print was found on the refrigerator in the kitchen where the victim was stabbed.

The defendant claimed that he had gone directly home after leaving the apartment and denied having seen Shirley Williams and Willie Holley on the evening of the stabbing. He also denied having made the incriminating statements attributed to him by Eddie Rose, Jr., and Lois Brown.

The defendant offered the testimony of Jan Brzoska regarding statements made to him by the victim after the stabbing had occurred. The state objected on the ground of hearsay, and the trial court sustained the hearsay objection. The defendant’s offer of proof outside the presence of the jury disclosed that the victim had allegedly said “black whore” and “I was stabbed by a whore,” in Polish to Jan Brzoska before the arrival of the medical personnel. The defendant had argued that the statements were admissible under the spontaneous utterance and dying declaration exceptions to the hearsay rule.

The defendant’s first claim is that the trial court erred in excluding the testimony of Jan Brzoska regarding the statements made by the victim that allegedly implicated Conaway in the death of the victim. The offer of proof disclosed that Jan Brzoska had heard the victim say the words “kurwa czarnota” after the stabbing had occurred. A New Britain police officer testified that he had taken a statement from Jan Brzoska on September 22, 1986. In that statement the victim was reported to have also said “przebity bylem przez kurwa” as he lay on the kitchen floor. A Polish inter-prefer testified during the offer of proof that “kurwa czarnota” had the English meaning of “black whore,” and the statement contained in the police report meant “I was stabbed by a whore.” The trial court sustained the hearsay objection to the testimony.

The state has conceded error by the trial court in excluding the testimony, but asserts that it is harmless error. The allocation of the burden of proof under harmless error analysis depends on whether the error reaches the level of a constitutional violation. If the error is of constitutional magnitude, then the burden is on the state to prove that this error 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. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The defendant argues that the trial court’s evidentiary ruling denied him the right to present a defense and his right to a fair trial in violation of the sixth and fourteenth amendments to the United States constitution and article first, 8 of the Connecticut constitution. Despite these claims, we decline to characterize the error as constitutional.

Whether a trial court’s erroneous restriction of a defense witness’ testimony in a criminal trial deprives a defendant of his due process rights is a question that must be answered on a case-by-case basis. State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988). “ ‘Generally, “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” State v. Periere, [186 Conn. 599, 611, 442 A.2d 1345 (1982)], quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir. 1974).’ State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985).” State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).

The defendant claims that the exclusion of exculpatory testimony denied him the right to a fair opportunity to defend against the state’s accusations, citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). We do not agree. The excluded testimony concerned the identity of the person who caused the death of Wladyslaw Brzoska. In a prosecution for murder this evidence would be exculpatory. In the present case, however, the defendant was acquitted of murder and convicted of felony murder and burglary. The issue is whether the erroneous exclusion of testimony deprived the defendant of a fair opportunity to defend the felony murder and burglary charges.

The felony murder statute does not require that the defendant commit the homicidal act, but instead requires that “[the defendant], or another participant, if any, causes the death of a person other than one of the participants.” General Statutes 53a-54c. The excluded evidence is exculpatory only if it indicates that neither the defendant nor any participant in the felony caused the death. The testimony implicating Conaway as the person who stabbed the victim does not provide a defense to felony murder because there was a basis in the evidence for the jury reasonably to have found that Conaway was a participant in the felony. There was testimony that Conaway met with the defendant and signaled to him prior to entering the apartment. Conaway knew the defendant was in the apartment and saw him attempting to lift a television set. Shirley Williams testified that the defendant told her that he had been with Conaway in the apartment. The excluded evidence, if it has any probative value on the question of whether Conaway was a participant in the burglary, further establishes her joint participation in the events that occurred in the early morning hours of September 21,1986. Under these circumstances, it is our view that the error was not of constitutional magnitude.

When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). We conclude that the defendant has failed to show that the erroneous action of the court would have been likely to affect the result. State v. McClain 171 Conn. 293, 300, 370 A.2d 928 (1976). In light of all the other highly incriminating evidence presented against the defendant, we deem it highly unlikely that, if the testimony had been admitted into evidence, the jury would have reached a different verdict.

The defendant’s next claim is that the trial court erred in denying his pretrial motion for a supplemental bill of particulars. The second count of the substitute information alleged that the defendant “or another participant, if any, caused the death of Wladyslaw Brzoska.” On October 15, 1987, the defendant filed a motion for a supplemental bill of particulars to identify any other participants and to specify whether any other participant was alleged to have caused the death of Wladyslaw Brzoska. The trial court denied the motion. The defendant contends that the trial court’s failure to grant his motion for a supplemental bill of particulars denied him his right to notice of the charges against him and denied him a fair opportunity to present a defense.

“ ‘The function of the bill of particulars under Connecticut practice is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense.’ State v. Troynack, 174 Conn. 89, 96, 384 A.2d 326 (1977).” State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be reversed only upon a clear showing of prejudice to the defendant. State v. Brown, 173 Conn. 254, 257, 377 A.2d 268 (1977). The defendant bears the burden of showing why the additional particulars were necessary to the preparation of his defense. State v. DiBella, 157 Conn. 330, 339, 254 A.2d 477 (1968); State v. Curtis, 146 Conn. 365, 367, 151 A.2d 336 (1959).

We are unable to find any prejudice against the defendant because of the trial court’s denial of his motion. The language in the substitute information sets forth the requirements of the felony murder statute. The defendant had a precise statement of the offense charged, and a fair opportunity to present a defense. A charge of felony murder does not require that the state specify whether the defendant or a participant in the felony caused the death. The defendant argues that the failure to inform him whether there were any coparticipants denied him an opportunity to present a defense, but he fails to provide any support for this argument. The preparation of his defense did not depend on the identification of alleged participants- in the substitute information. The defendant cannot claim that he was unaware of the possibility that a jury might consider Conaway to be a participant in the alleged burglary. Under such circumstances, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion.

The defendant’s final claim is that the trial court erred in failing to charge the jury that it must unanimously agree on the mode and manner of the death of Wladyslaw Brzoska. Under the jury instructions requested by the defendant, the jury would have had to be unanimous as to whether the defendant caused the death or whether a participant caused the death. The trial court gave a general unanimity charge that the jury must be unanimous that the defendant or another participant caused the death of the victim.

The defendant relies on United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), and State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986). The unanimity requirement as stated in Gipson requires the jury to agree on the factual basis of the offense. State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988). When one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required if the alternative acts are conceptually distinct and the state has presented supporting evidence on each alternative act. Id.; State v. Benite, supra, 674-75.

These cases are not persuasive in the present case. This court has held that principal liability and accessory liability are not “conceptually distinct” under Gipson and its progeny. State v. Smith, 212 Conn. 593, 605, 563 A.2d 671 (1989). In Smith, the defendant claimed that the trial court erred in failing to instruct the jury in a prosecution for murder that it must be unanimous on whether the defendant had been a principal or an accessory. The court, applying the analysis used in United States v. Petersen, 768 F.2d 64 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985), found that “in a case involving potential accessory liability, the jury should be regarded as unanimous even if some jurors believed that the defendant was an aider and abetter, while other jurors believed that he was the principal . . . .” State v. Smith, supra. The language of the felony murder statute clearly supports this conclusion because it provides for liability if a death is caused by any participant in the underlying felony. The statute does not provide conceptually distinct theories of liability based on which participant caused the death. We conclude that in a prosecution for felony murder a general unanimity charge is sufficient.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative defenses, evidence OF mental condition, classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[General Statutes] Sec. 53a-54c. “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, sexual assault in the first degree with a firearm, 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: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       “[General Statutes] Sec. 53a-102. burglary in the second degree: CLASS C FELONY, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       Due process claims under the federal and state constitutions can be treated together because they impose similar constitutional limitations. Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). The defendant offers no argument for separate treatment of his state constitutional claim. Accordingly, we will consider only his federal constitutional claim. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).

       The acquittal on the murder charge indicates that the jury had reasonable doubt as to whether the defendant caused the death of the victim.