author: Hull, J.

text:
    Dow and Condon, Inc. v. Robert H. Anderson et al.
    (12998)
    (12999)
    Peters, C. J., Healey, Shea, Hull and L. Dorsey, Js.
    Argued March 5
    decision released May 19, 1987

      Richard P. Weinstein, for the appellants-appellees (defendants).

      Thomas A. Rouse, with whom was Christopher M. Reeves, for the appellee-appellant (plaintiff).
   Hull, J.

The plaintiff, a real estate corporation, sued both the owner of an office building and the broker who listed the property for sale, seeking a co-broker’s commission. The trial court granted, a motion to dissolve an ex parte attachment of the owner’s property, and later granted a motion for a prejudgment remedy against the broker and his agency. From the former, the plaintiff appealed, claiming that the court erred in ordering the dissolution of the attachment. From the latter, the named defendant and the defendant Revest, Inc., appealed, claiming that the court erred in granting the plaintiff’s motion to attach and garnish their property. The appeals, although separately filed, have been consolidated under Practice Book § 4004 (formerly § 3002).

The following facts are relevant to this case. Both the plaintiff corporation, Dow and Condon, Inc., and its principals are licensed as real estate brokers or salesmen by the state of Connecticut. The defendant Robert H. Anderson is a licensed real estate broker. He is a principal and owner of the defendant Revest, Inc. (Revest), a Connecticut corporation licensed to sell real estate. Anderson is also both a general and limited partner in Conference Center, Ltd. (Conference Center), a Connecticut limited partnership, which, at the commencement of this action, owned an office building in Wethersfield.

Some time prior to the summer of 1985, Conference Center entered into a written agreement with Revest for the sale of the Conference Center property. Anderson acted as principal for both Revest and Conference Center in negotiating and executing the agreement. Conference Center agreed to pay Revest a commission of 6 percent of the sale price of the property.

With the knowledge and consent of Conference Center, Anderson offered to co-broke the property with other licensed brokers. During the next several months, brokers from the plaintiffs office showed the property to prospective purchasers. On or about November 5, 1985, the Hartford Development Group made an offer through the plaintiff to purchase the property. At that time, Anderson told the plaintiff that the offer would be acceptable if a few financial adjustments were made. The Hartford Development Group found the conditions acceptable and a revised letter of intent was executed on November 12, 1985.

In mid-December, 1985, a proposed bond for deed was prepared by the attorneys for the Hartford Development Group. On December 31, 1985, Anderson notified the plaintiff that there were minor problems with the proposed agreement which would have to be remedied by the respective attorneys. By early January, 1986, it appeared that the problems had been solved and the sale could be consummated. Anderson, however, subsequently induced Conference Center to enter into an agreement with another purchaser under terms by which Anderson and Revest would be allowed rent free space and would manage the premises for the remainder of 1986. The plaintiff subsequently brought suit, seeking a commission on the ground that it had procured a ready, willing and able buyer.

Upon commencement of the suit, the plaintiff sought and obtained an ex parte attachment of Conference Center’s property in the amount of $100,000. Conference Center, Anderson and Revest immediately moved to dissolve the attachment. While the motion to dissolve was pending, the plaintiff moved for a supplemental prejudgment remedy against both Revest and Anderson. The trial court granted the defendants’ motion to dissolve the attachment of Conference Center’s property on May 2, 1986. On May 5, 1986, the court granted the plaintiff’s motion for a supplemental prejudgment remedy relating to claims against Revest and Anderson. These appeals followed.

I

In the plaintiff’s appeal it is claimed that the court erred in finding that there was no probable cause to sustain the plaintiffs claims against the defendant Conference Center. The trial court’s role in addressing motions for prejudgment remedies is limited. “The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the [trial] court determine ‘whether or not there is probable cause to sustain the validity of the plaintiff’s claim’; General Statutes § 52-278d (a); that is to say ‘probable cause that judgment will be rendered in the matter in favor of the plaintiff.’ General Statutes § 52-278c (a) (2). . . . The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977).” Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); see also Solomon v. Aberman, 196 Conn. 359, 362-63, 493 A.2d 193 (1985).

Our role in reviewing the decision of a trial court on a prejudgment remedy motion is similarly “very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. ‘In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.’ ” Three S. Development Co. v. Santore, supra, 176. We therefore do not decide whether the legal conclusions reached by the trial court were correct or erroneous. We review the legal conclusions of the trial court only to the limited extent of determining whether its conclusions were reasonable. Id.; see also Solomon v. Aherman, supra, 364.

With this limited standard in mind, we turn to the plaintiff’s claim. We find that the conclusion of the court was reasonable and that the court did not commit clear error. The court concluded that the plaintiff had presented evidence sufficient to find probable cause to believe that there was an oral agreement to co-broke the sale of the Conference Center property, and that the plaintiff had obtained a ready, willing and able buyer. The court found, however, that the plaintiff had no contract upon which to sustain its actions against Conference Center. It stated as follows: “[P]laintiff is seeking to recover against defendant Conference Center, as the owner of real property, compensation for real estate services rendered. Thus, its claim falls squarely within the ambit of [General Statutes] Sec. 20-325a. That statute, at subsection[s] (a) and (b), provides that no licensed real estate broker ‘shall commence or bring any action in any court of the state ... to recover any commission, compensation or other payment in respect of any act done or service rendered by him’ . . . ‘unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered.’ ” (Emphasis in original.)

The plaintiff in the present case, a licensed real estate broker, failed to prove the existence of a contract complying with the precise provisions of the statute. Based on this fact, the court logically concluded that the statutory requirement for a cause of action had not been met, and therefore there was no basis upon which to conclude that probable cause existed to allow the attachment to stand.

The plaintiff argues that although it did not introduce a written listing agreement into evidence, this court should take notice of a judicial admission that one existed. Even if we were to do so, the outcome of this decision would not change. The listing agreement we are asked to acknowledge was between Conference Center and Revest. The plaintiff was not a party to that agreement, and thus could have no enforceable rights under it. See William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982).

The trial court acted reasonably in holding that General Statutes § 20-325a applied to the plaintiff’s action against Conference Center. It was also reasonable to hold that the statutory requirements had not been met and no probable cause to sustain the prejudgment remedy existed.

II

The defendants claim that the court erred in granting the plaintiff’s supplemental prejudgment remedy, attaching certain property of Anderson and Revest. The trial court apparently found that there was an implied “arrangement” between the plaintiff and Revest. The court went on to find that General Statutes § 20-325a was not applicable to an action between brokers. The court did not proceed to determine whether it was probable that an action on the “arrangement” between the plaintiff and Revest would be successful, nor did it grant a prejudgment remedy on the counts which were based on the claimed agreement. The court did, however, find probable cause to grant the prejudgment remedy on the unfair trade practices claim pursued by the plaintiff.

Inasmuch as the court did not base its granting of a supplemental prejudgment remedy on the co-brokerage “arrangement”, but relied only on the Connecticut Unfair Trade Practices Act (CUTPA) claim, the question of the reasonableness of the court’s conclusion that § 20-325a does not apply to these parties is not before us. Our limited role in reviewing action taken on prejudgment remedies must once again be stressed. This is not a review of a complete trial on the merits, where the court would have before it more comprehensive briefs and a complete record, and where the parties would have an opportunity to move the trial court to articulate its findings. Our review is limited to a determination of whether the findings made were reasonable. As no findings were made regarding the contract claim, we can make no determination as to whether they were reasonable.

The trial court granted the motion for supplemental prejudgment remedy against Anderson and Revest on the basis of the plaintiff’s CUTPA claim. The sixth count of the plaintiff’s complaint alleges violations by Anderson and Revest of General Statutes § 42-110b. That statute provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The act further provides for a private cause of action for actual and punitive damages. General Statutes § 42-110g.

With reference to this claim, the trial court stated: “Anderson is alleged in the amended complaint to be a real estate broker, a principal and owner of Revest and a general and limited partner of Conference Center. The evidence revealed that the management agreement between Conference Center and Revest authorized Revest to offer Conference Center’s property for sale. Revest allowed plaintiff to become a co-broker. Plaintiff obtained Hartford Development Group as a ready, willing and able buyer. Anderson and Revest induced Conference Center not to consummate that deal, but rather to enter into an agreement with another purchaser under terms by which Anderson and Revest would get free rent for their space and would manage the premises for the balance of 1986 and one of Conference Center’s limited partners would get a share of the real estate commission. This management agreement provides for a real estate commission only if a sale is consummated. While that provision might bar plaintiff from recovering as against the Conference Center; Nugent v. DelVecchio, 36 Conn. Sup. 532 [415 A.2d 1239] (1980); this court finds that there is probable cause that plaintiff could at least sustain its claim against Anderson and Revest on the Sixth Count of the amended complaint for the unfair and deceptive acts and practices in violation of CUTPA.”

In determining whether the trial court’s decision was reasonable, we must consider whether this case falls within the scope of CUTPA’s general proscription of unfair or deceptive practices. This court has adopted the standard of FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972), to assist in such determinations. See Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). “Under that standard, [we will look] to a number of factors in deciding whether an action or practice is unfair: ‘ “(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of fairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers. . . . ” ’ FTC v. Sperry & Hutchinson Co., supra, 244 n.5.” Mead v. Burns, 199 Conn. 651, 664-65, 509 A.2d 11 (1986).

It must be stressed that the plaintiff’s claims based upon CUTPA were not brought to enforce its agreement with Revest or Conference Center. Rather, the plaintiff seeks compensatory and punitive damages for the deceptive practices of the defendants.

We conclude that the trial court could reasonably have found probable cause to believe that the plaintiff had a sustainable cause of action under the broadly worded CUTPA statute. We will not retry the facts in this case. Cookson v. Cookson, 201 Conn. 229, 242, 514 A.2d 323 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). The court found that Anderson induced Conference Center to enter into a sales agreement with another party, and under that agreement, Anderson and Revest were to receive pecuniary gains additional to the listing broker’s commission. From those facts alone, probable cause exists to sustain a cause of action for unethical, oppressive or unscrupulous behavior. We cannot say that the trial court erred in granting the plaintiff’s motion for supplemental prejudgment remedy.

There is no error in either appeal.

In this opinion the other justices concurred.

       It appears from the record that both the Hartford Development Group offer and the subsequent offer were for $2,900,000. Under the terms of the second written offer to purchase, Revest would also receive 4 percent of the gross monthly income management of the building until December 31, 1986.

       General Statutes § 52-278e provides in relevant part: “The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff’s claim and (1) that the prejudgment remedy requested is for an attachment of real property; or (2) that there is reasonable likelihood that the defendant (A) neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court, or (B) has hidden or will hide himself so that process cannot be served on him or (C) is about to remove himself or his property from this state or (D) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (E) has fraudulently-hidden or withheld money, property or effects which should be liable to the satisfaction of his debts or (F) has stated he is insolvent or has stated he is unable to pay his debts as they mature.”

       General Statutes § 52-278d provides in relevant part: “(a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff’s claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested ....

       See footnote 2, supra. The motion for supplemental prejudgment remedy sought a $100,000 attachment of an interest in real property held by Anderson in Stonington. It also sought to garnish Conference Center, as it was the agent, trustee and debtor of Anderson and Revest.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Ronald E. Paulsen v. John R. Manson, Commissioner of Correction, et al.
    (12708)
    Peters, C. J., Healey, Shea, Santaniello and Jacobson, Js.

      Argued February 10
    decision released May 19, 1987

      Kevin M. Doyle, special assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney for the appellants (respondents).

      John D. Palermo, certified legal intern, with whom, were Todd D. Fernow and, on the brief, C. Frank Figliuzzi, certified legal intern, for the appellee (petitioner).
   Shea, J.

This is an appeal from the granting of a petition for a writ of habeas corpus by the Superior Court. The petition alleged that, because the record of the plea hearing failed to include a factual basis for the crime of assault in the first degree, the petitioner’s plea of guilty to that offense was accepted in violation of his rights under the due process clause of the fourteenth amendment to the United States constitution. We find error in the conclusion of the habeas court that such a factual basis is a constitutional requisite to a valid guilty plea.

The petitioner, Ronald E. Paulsen, was arrested on June 25,1976, after assisting David Collins in his escape from the federal penitentiary in Lewisberg, Pennsylvania. When the car driven by Collins, in which the petitioner was a passenger, was stopped by state trooper Philip Confer in Middlebury, Connecticut, shortly before the arrest, Collins shot and wounded Confer with a handgun that the petitioner had given Collins.

On July 6,1976, the petitioner entered a plea of not guilty to each count of the substitute information, which charged him with attempted murder in violation of General Statutes (Rev. to 1975) §§ 53a-49 and 53a-54 and larceny in the second degree in violation of General Statutes (Rev. to 1975) § 53a-123. A second substitute information was subsequently filed, which added a third count of assault in the first degree in violation of General Statutes (Rev. to 1975) § 53a-59. When the petitioner, on August 11, 1976, withdrew his prior pleas and entered a plea of guilty to the charge of assault in the first degree, the state entered a nolle prosequi of the remaining charges.

At the August 11, 1976 proceeding, after the petitioner had pleaded guilty, the following interchange occurred between the trial court, Matzkin, J., the petitioner, and assistant state’s attorney Walter Scanlon:

“The Court: Have you had an opportunity to discuss with [Raymond, J.] Quinn, your attorney, this particular offense that you are now being charged with and are you satisfied with his advice and assistance?
“Mr. Paulsen: Yes, I am.
“The Court: And, do you understand that by pleading guilty to assault in the first degree, you are admitting that you committed that particular offense with which you are charged in the information?
“Mr. Paulsen: Yes, I do.
“The Court: Have you been advised by Mr. Quinn of the maximum penalty provided by law for this particular offense?
“Mr. Paulsen: Yes, I have.
“The Court: Mr. Scanlon—listen to Mr. Scanlon give the Court a statement of the facts in this case. Please.
“Mr. Scanlon: Yes, your Honor. If your Honor please, he was accompanying one David Collins at approximately 11:35 p.m. on June 25, 1976, at or near the Middlebury-Southbury town line and Route 1-84. They were stopped by the police officer as I mentioned, and the police officer was shot in the right arm by this man’s companion, Collins. The police officer returned fire and subsequently apprehended them.
“The Court: You agree with that statement of facts, Mr. Paulsen, that Mr. Scanlon has just given to the Court?
“Mr. Paulsen: Yes, I do.”

At the sentencing proceeding on September 10,1976, Paulsen moved to withdraw his guilty plea, but his motion was denied. After sentence had been imposed, he obtained several extensions of time to file an appeal, but no appeal was actually filed by Paulsen, who at that time was proceeding pro se. Paulsen, on July 25,1980, filed a petition for a writ of habeas corpus alleging that the record of the plea proceeding was constitutionally inadequate to support his guilty plea on the charge of assault. The habeas court, Hammer, J., rendered judgment for the state, dismissing the petition on the ground that the petitioner had not carried his burden of establishing that he had not deliberately bypassed the orderly procedure of direct appeal. In the appeal that followed, we vacated the judgment and remanded the case for further proceedings on the merits. Paulsen v. Manson, 193 Conn. 333, 476 A.2d 1057 (1984). By agreement of the parties, the court, Satter, J., conducted the subsequent habeas corpus proceeding solely through review of the records of the plea, sentencing, and prior habeas proceedings. From the judgment granting the petition, the commissioner of correction and the warden of the correctional institution at Somers have appealed to this court.

At the outset we note that it is undisputed that the prosecutor’s summation of facts at the plea proceeding was insufficient to satisfy the elements of the crime charged. Indeed, as the habeas court stated, that “statement of facts failed to implicate [the] petitioner in the commission of any crime at all . . . .” While the elements of the crime of assault in the first degree, as set forth in § 53a-59, include the intent to cause, and the causing of, serious physical injury by means of a dangerous weapon, the prosecutor’s recitation merely placed the petitioner in the company of Collins, who shot the police officer who had stopped them. “One who is merely present when a crime is being committed by another is not necessarily a participant or accessory. State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 [1976] . . . State v. Battle, 170 Conn. 469, 474, 365 A.2d 1100 (1976).

The habeas court relied upon this court’s rulings in State v. Battle, supra, State v. Marra, 174 Conn. 338, 387 A.2d 550 (1978), and State v. Cutler, 180 Conn. 702, 433 A.2d 988 (1980), in concluding that, because the petitioner’s guilty plea had not been supported by an adequate factual basis, it had been procured in violation of due process requirements. In State v. Battle, supra, 473, we noted that “[t]he entry of a plea of guilty waives the constitutional right to a trial by jury, the right to confront accusers, and the privilege against compulsory self-incrimination.” A waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); D’Amico v. Manson, 193 Conn. 144, 147, 476 A.2d 543 (1984). “ ‘Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.’ McCarthy v. United States, [394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)].” State v. Battle, supra. The habeas court in the present case reasoned that a guilty plea not supported by an adequate factual basis cannot have been entered voluntarily and intelligently.

The United States Supreme Court has delineated standards determinative of the constitutional validity of a plea of guilty. The underlying premise has been indicated in the preceding paragraph. Because a guilty plea “is itself a conviction”; Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927); entailing the simultaneous waiver by a defendant of several constitutional rights, the plea must be entered voluntarily and intelligently. Boykin v. Alabama, supra; McCarthy v. United States, supra. “Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” Id. “And clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ Smith v. O’Grady, 312 U.S. 329, 334 [61 S. Ct. 572, 85 L. Ed. 859 (1941)].” Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976).

From these holdings, this court has attempted to extrapolate a position on the issue of whether a factual basis is a requisite to the validity of a guilty plea under the federal constitution. We noted in State v. Deboben, 187 Conn. 469, 475 n.4, 446 A.2d 828 (1982), that “it is not at all clear that such proof is constitutionally mandated.” We asserted, nevertheless, in State v. Eason, 192 Conn. 37, 43, 470 A.2d 688 (1984), that “[i]n order for a plea of guilty to be constitutionally valid, the record must affirmatively disclose that there is a factual basis for the plea and that the defendant entered the plea voluntarily and intelligently.” See also State v. Cutler, supra, 705 (“[t]he plea, therefore, was not supported by a factual basis and, thus, was not knowingly and intelligently made”); State v. Marra, supra, 340 (“[t]he plea must be supported by a factual basis”).

Recent federal case law, however, has provided a clarifying interpretation of due process requirements that is not in accord with that posited by this court in State v. Eason. The Court of Appeals for the Fifth Circuit said in Hobbs v. Blackburn, 752 F.2d 1079, 1082 (5th Cir. 1985): “The state court is under no constitutionally imposed duty to establish a factual basis for a guilty plea prior to its acceptance unless ‘the state judge is put on notice that there may be some need for such an inquiry . . . .’ Banks v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983).” The Court of Appeals for the Second Circuit in Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984), maintained that “[t]he voluntariness of a plea of guilty . . . should be determined by considering all of the relevant circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). A factual basis inquiry ... is merely one way of satisfying the constitutional requirement that a plea be voluntary and intelligent. Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972). Moreover, due process does not mandate a factual basis inquiry by state courts.” See also Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1983); Thundershield v. Solem, 565 F.2d 1018, 1028 (8th Cir. 1977), cert. denied, 435 U.S. 954, 98 S. Ct. 1585, 55 L. Ed. 2d 805 (1978); Edwards v. Garrison, 529 F.2d 1374, 1376 (4th Cir. 1975), cert. denied, 424 U.S. 950, 96 S. Ct. 1421, 47 L. Ed. 2d 355 (1976); Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir.), cert. denied, 423 U.S. 917, 96 S. Ct. 226, 46 L. Ed. 2d 147 (1975); Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1006, 92 S. Ct. 569, 30 L. Ed. 2d 554 (1971).

In light of these federal precedents, we conclude that the habeas court erred in holding that “a plea not supported by an adequate factual basis is obtained in violation of due process and is, therefore, void.” To the extent that Eason, Cutler, Marra and Battle hold to the contrary, they are overruled.

At the initial habeas corpus hearings before Judge Hammer, the state’s attorney attempted to question the petitioner’s trial counsel about certain matters extrinsic to the plea proceeding in order “to get some background ... on the mental state of the petitioner regarding the entrance of the plea . . . .” The petitioner’s habeas counsel objected that “the question before the court ... is whether the record itself at the plea proceeding is sufficient as a matter of constitutional law to enable the court to make a finding on that record that the plea is voluntary and intelligent. . . . There is no propriety to go beyond the record and to make an exploration as to whether the person in fact had some kind of a basis for understanding what the law was when the court had failed to address him personally on that subject.” The petitioner’s counsel continued to assert that the claim of an inadequate factual basis upon the record of the plea proceeding is the issue “raised by the petition. We are limited by our claims on our petition.” The court sustained the objection with respect to evidence of the sentencing hearing, which occurred subsequent to the plea proceeding, while allowing evidence of communications occurring prior to the proceeding for the limited purpose of revealing the petitioner’s attitude and motive in regard to his sentencing.

Although it is true that the petition raised solely the claim that the inadequate factual basis upon the record of the plea proceeding vitiated the petitioner’s guilty plea, the memoranda filed by the petitioner at the second habeas corpus hearing before Judge Satter, as well as the transcript of the first hearing before Judge Hammer, establish that the underlying issue was whether the guilty plea had been entered voluntarily and intelligently. Because the habeas court, Satter, J., concluded that the disposition of the case required only an inquiry into the adequacy of the factual basis of the plea, we deem this fundamental issue of voluntariness to be unresolved. Although ordinarily a complainant may prevail only upon the grounds that he has alleged; Atlantic Richfield Co. v. Carnaan Oil Co., 202 Conn. 234, 244, 520 A.2d 1008 (1987); Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987); we have examined allegations that are necessarily implied, even though not expressly set forth, in a complaint. See State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 303, 524 A.2d 636 (1987); Lamb v. Burns, supra; Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983). We have furthermore relied upon our supervisory authority as enunciated in Practice Book § 4183 (formerly § 3096) in permitting a criminal defendant to engage in further proceedings when the actions of his counsel may technically have foreclosed such an option. See State v. Stead, 186 Conn. 222, 228, 440 A.2d 299 (1982).

In accordance with these considerations, we remand this case to the habeas court for further proceedings on the issue of whether the petitioner entered his plea of guilty voluntarily and intelligently. We recognize that “it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Henderson v. Morgan, supra, 647. Nevertheless, we do not view the circumstances of the present case as warranting such a presumption. See State v. Childree, 189 Conn. 114, 123-24, 454 A.2d 1274 (1983). Although the petitioner averred upon entering his plea that he had an opportunity to discuss the offense with his attorney, we decline to assume that the petitioner was thereby referring to an explanation by his counsel of the elements of assault in the first degree.

There is error, the judgment is set aside and the case is remanded to the habeas court for further proceedings.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1975)] See. 53a-59. assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person. . . .”

       As the court noted, the petitioner properly did not challenge the acceptance of his guilty plea upon the basis of Practice Book § 713, which provides that “[t]he judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea.” The petitioner entered his guilty plea on August 11, 1976, whereas Practice Book, 1963, § 2124, which was the predecessor of § 713, did not become effective until October 1, 1976. Cf. General Statutes § 1-1 (u); see generally Blue v. Robinson, 173 Conn. 360, 373-74, 377 A.2d 1108 (1977).

       It must be emphasized that Practice Book § 713 now requires a factual basis as a precondition to the acceptance of a guilty plea. See footnote 2, supra. Section 713 was adopted in response to the holding of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), that the record should disclose “an affirmative showing” that the guilty plea was intelligent and voluntary. See Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977). Thus, the mere fact that a defendant has conferred with his counsel could not currently be deemed to be a sufficient indicator that his guilty plea has been entered voluntarily and intelligently. Under the rule, the minimum requirement of a factual basis on the record must also be satisfied.


author: Callahan, J.

text:
    Peter H. Remick v. Raymond M. Lopes, Commissioner of Correction
    (12815)
    Healey, Shea, Santaniello, Callahan and Moraghan, Js.
    Argued January 15
    decision released May 19, 1987

      Alphonse DiBenedetto, special public defender, for the appellant (petitioner).

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (respondent).
   Callahan, J.

This is a petition for a writ of habeas corpus in which the petitioner is attempting to have declared null and void in the Superior Court of this state detainers filed by sister states under the provisions of the Interstate Agreement on Detainers (IAD). General Statutes § 54-186. Specifically, the petitioner seeks to nullify three detainers, one from Maine, and two from Massachusetts, and also to avoid being transferred by the defendant to the temporary custody of Massachusetts authorities for trial. He has appealed from the trial court’s judgment denying his claims for relief. We find no error.

The facts are essentially undisputed. On March 5, 1982, the petitioner was sentenced to eleven concurrent fifteen year terms for robbery in the first degree. See General Statutes § 53a-134. Prior to sentencing, while a pretrial detainee at the Community Correctional Center at Bridgeport (CCC), three detainers were lodged against him, one from Maine, and one from each of two counties in Massachusetts. At that time, he was informed of his right to request disposition of the charges in these states after he was sentenced in Connecticut, pursuant to General Statutes § 54-186. After the petitioner’s sentencing, he was returned to the CCC to await his transfer to the Connecticut Correctional Institution at Somers (Somers). On March 8,1982, he spoke with a correctional counselor at the CCC and orally requested the initiation of the IAD procedure to arrange for disposition of the outstanding detainers against him. The counselor agreed and indicated to the petitioner that the proper papers would be drafted. On the same day, the petitioner also drafted letters to the Superior Courts in Pittsfield, Massachusetts, and Wiscasset, Maine, making “Requests for a speedy trial on detainers your jurisdiction has lodged against me per the Interstate Agreement on Detainer Act.”

The counselor at Bridgeport, however, never processed the paperwork for the petitioner before March 12, 1982, the date on which the petitioner was transferred to Somers. During his first week at Somers, however, the record office supervisor had delivered to him the three warrants lodged against him to which a note was affixed stating: “If you wish to have a speedy trial on the enclosed charges, write a letter to the court and request a final disposition. Attach a request form to your letter and send it to the Record Office. The Record Office will prepare the necessary cover letter and forward both to the Court, registered mail.” The petitioner, however, refused to acknowledge receipt of the warrants, or to ask for the necessary forms to make the request under the IAD, claiming that he had done all that was required of him when he was at the CCC. Pursuant to institutional policy, the records supervisor at Somers mailed the three detainers to the petitioner the next day by regular mail.

Thereafter, between March and August of 1982, the petitioner wrote letters to Somers officials asking about his “speedy trial” requests; he never sent, however, a written notice to the respondent pursuant to article III (b) of the IAD requesting a disposition of the three detainers. On September 10, 1982, the district attorney for Berkshire County, Massachusetts, sent a formal request pursuant to article IV of the IAD asking for temporary custody of the petitioner. The petitioner then filed this habeas corpus petition, challenging the transfer request, and seeking to have the three detainers declared null and void. He argues that the relief sought should be granted because Connecticut failed to comply with the provisions of the IAD, which resulted in the receiving state’s failure to bring him to trial within 180 days as required by article III (a). The defendant argues that the petitioner never properly invoked the provisions of the IAD so as to trigger the speedy trial provisions of the agreement.

The trial court did not directly address whether the petitioner properly invoked the provisions of the IAD. Rather, it denied his petition for a writ of habeas corpus, finding that any remedial relief under the IAD must be sought in the receiving state. It also concluded with respect to the request for temporary custody that since the petitioner’s case rests upon his assertion that he had made a valid request for final disposition, he must be deemed to have consented to being returned to Massachusetts under the IAD.

I

The threshold issue in this appeal is whether Connecticut has jurisdiction as the “sending state” under the IAD to entertain an action by a prisoner seeking to have detainers lodged by a “receiving state” declared null and void in this state. We conclude that the policy considerations which prompted the adoption of the IAD by the majority of states support the sending state’s authority to entertain such an action.

“The IAD ‘is a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law.’ Cuyler v. Adams, 449 U.S. 433, 442, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981). The decisions of both federal and other state courts therefore may guide our interpretation of its provisions.” State v. Braswell, 194 Conn. 297, 304, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); see generally annot., 98 A.L.R.3d 160. “It has been generally held that under the IAD, courts in the state in which the prisoner is incarcerated [i.e., the sending or asylum state] lack authority to dismiss out-of-state charges even though a prisoner claims that the ‘receiving state’s’ prosecuting authorities have violated his right to a speedy trial under Article III (a). State ex rel. Garner v. Gray, 59 Wis. 2d 323, 208 N.W.2d 161 (1973); Baker v. Schubin, 72 Misc. 2d 413, 339 N.Y.S.2d 360 (N.Y. Sup. Ct. 1972); State ex rel. Chamberlain v. Martinco, 288 Minn. 231, 179 N.W.2d 286 (1970); State v. West, 79 N.J. Super. 379, 191 A.2d 758 (Super. Ct. App. Div. 1963).” Hickey v. State, 349 N.W.2d 772, 776-77 (Iowa App. 1984); cf. Mokone v. Fenton, 710 F.2d 998, 1002-1003 (3d Cir. 1983); Stewart v. Sheriff of Leavenworth County, 5 Kan. App. 2d 593, 595, 620 P.2d 352 (1981).

We have also concluded that the asylum court, lacking extraterritorial jurisdiction, is powerless to dismiss the underlying charge. Narel v. Liburdi, 185 Conn. 562, 565, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982). The trial court, relying on our decision in Narel v. Liburdi, supra, and Giardino v. Bourbeau, 193 Conn. 116, 127, 475 A.2d 298 (1984), concluded that it was without jurisdiction to grant the petitioner any relief. The trial court’s reliance on these decisions was misplaced, however, because neither decision addressed the issue presented in this case. Instead, those cases support the proposition that the asylum court does not have jurisdiction to dismiss the out-of-state charges. The petitioner, however, was not seeking such relief, but was asking only that the detainers be declared null and void and removed from his file, and that Massachusetts’ request for custody be denied.

While we have never addressed the issue presented in this appeal, other courts have held that while the “sending state” may not dismiss the charges in the “receiving state,” the “sending state” has authority to dismiss detainer warrants lodged by sister states where it appears that the underlying accusatory instrument itself is subject to dismissal in the courts of the “receiving state” for failure to comply with the speedy trial provisions of the IAD. Hickey v. State, supra, 777; Baker v. Schubin, supra, 419; State v. Sykes, 91 Wis. 2d 436, 439, 283 N.W.2d 446 (1979); see Buchanan v. Michigan Department of Corrections, 50 Mich. App. 1, 212 N.W.2d 745 (1973). These decisions, noting the adverse effects upon a prisoner resulting from a detainer being lodged against him, stressed the importance of ascertaining whether such detainers are valid. As noted in an article on the detainer system, “a prison inmate with a detainer filed against him because of outstanding charges in another jurisdiction may suffer several disabilities, ranging from mandatory maximum-security classification to exclusion from vocational rehabilitation programs and even to possible ineligibility for parole.” D. Wexler & R. Hershey, “Criminal Detainers in a Nutshell,” 7 Crim. L. Bull. 753 (1971); see generally E. Dauber, “Reforming the Detainer System; a Case Study” 7 Crim. L. Bull. 669 (1971).

The concern of the drafters of the Uniform Act on Detainers with the harmful effects of detainers is reflected in the act’s statement of purpose. Article I provides in pertinent part that “it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. . . . ” (Emphasis added.) A receiving state’s failure to comply with the IAD’s speedy trial provisions would violate the agreement’s express purpose by denying speedy disposition of any pending charges. A fortiori, the refusal of the sending state to entertain an action to remove a detainer from a prisoner’s file, based upon such a violation, would violate the express purpose of determining “the proper status of any and all detainers.”

We conclude, therefore, that the trial court’s interpretation of the IAD as precluding the remedial relief the plaintiff was seeking was erroneous. Nevertheless, “ ‘[w]here the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.’ Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 478, 58 A.2d 387 (1948); Witek v. Town of Southbury, 132 Conn. 104, 110, 42 A.2d 843 (1945).” State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984) (Shea, J., concurring). Because we determine that the petitioner was not entitled to the relief he was seeking, for reasons other than those relied upon by the trial court, we affirm the trial court’s denial of the petition.

II

We turn now to the issue of whether the petitioner properly invoked the provisions of the IAD to request a speedy disposition of the charges against him. We conclude that, as a matter of law, he did not comply with those provisions and, therefore, is not entitled to the requested relief.

A brief overview of the mechanics of the IAD is necessary to our discussion of this issue. “ ‘The provisions of the agreement itself are activated only when the receiving or charging state lodges with the sending or asylum state a detainer based on a pending indictment, information or complaint. People v. Lincoln, 42 Colo. App. 512, 514, 601 P.2d 641 (1979); Burns v. State, 578 S.W.2d 650, 652 (Tenn. Crim. App. 1978).’ Narel v. Liburdi, supra, 567. After lodging the detainer an appropriate officer of the demanding state may make a written request for temporary custody of the prisoner for the purpose of trying these indictments, informations, or complaints that form the basis of the detainer. General Statutes § 54-186 (IAD), art. IV (a) and (c). Unless the governor of the asylum state disapproves the request for temporary custody within thirty days of its filing, the demanding state ‘shall be entitled to have a prisoner against whom [it] has lodged a detainer.’ Id.” Giardino v. Bourbeau, supra, 124-25. It is undisputed in this case that the detainers, as well as the transfer request by Massachusetts, were properly lodged in Connecticut.

Once a detainer has been filed against a prisoner, “custodial officials must promptly notify the prisoner of the source and contents of the detainer and of the prisoner’s right to request a final disposition of the foreign charge; General Statutes § 54-186, art. Ill (c); the prisoner, upon notifying prosecuting officials in the demanding state of his or her request for a final disposition of the charge, must be brought to trial within 180 days of the request; General Statutes § 54-186, art. Ill (a).” Giardino v. Bourbeau, supra, 125. It is undisputed that the records supervisor properly notified the plaintiff of his right to request a final disposition of the foreign charges.

The petitioner claims that his verbal request to the correctional counselor at the CCC to prepare the appropriate paperwork for disposition of the existing detainers invoked the provisions of article III of the IAD. He argued before the habeas court, and now on appeal, that he did all he was required to do under the agreement, and that it was up to the Connecticut authorities to carry through upon his request. We disagree.

Article III (b) specifies the manner in which the prisoner is to deliver the requisite notice: “the detainee must give or send to his custodian in the asylum state a written request for final disposition of the charge lodged against him in the charging state and shall cause to be delivered to the prosecuting officer and the appropriate court of the prosecutor’s jurisdiction written notice of the place of his imprisonment and of his request for final disposition.” (Emphasis added.) Narel v. Liburdi, supra, 568-69; Commonwealth v. Martens, 398 Mass. 674, 677, 500 N.E.2d 281 (1986). It has been held that a prisoner must first meet the burden of compliance with IAD disposition procedures before he is entitled to invoke the agreement’s benefits. See Williams v. Maryland, 445 F. Sup. 1216, 1220 (D. Md. 1978); Gray v. Benson, 443 F. Sup. 1284, 1286 (D. Kan. 1978); Beebe v. Vaughn, 430 F. Sup. 1220, 1223-24 (D. Del. 1977); People v. Uplinger, 69 Ill. 2d 181, 183, 370 N.E.2d 1054 (1977). Although we recognize that the IAD is remedial legislation and that a prisoner must be given some latitude in complying with its provisions; see Williams v. Maryland, supra; Rainey v. Department of Corrections, 41 Mich. App. 313, 199 N.W.2d 829 (1972); People v. Esposito, 37 Misc. 2d 386, 201 N.Y.S.2d 83 (1960); an oral request simply is not a sufficient request for final disposition under either the plain language of article III or judicial interpretation of this provision. Cf. Williams v. Maryland, supra; Gray v. Benson, supra; Beebe v. Vaughn, supra; People v. Uplinger, supra. “The notice provision of the IAD was obviously enacted to ensure adequate notification to the state, and its particulars may not be totally ignored.” Williams v. Maryland, supra. Requiring written notification to the custodian in the asylum state ensures certainty and accountability in the processing of prisoners’ requests for final disposition of outstanding charges. We conclude, therefore, that since the petitioner never properly invoked the IAD, he is precluded from complaining that he has been denied his right to a speedy trial, and having the detainers lodged against him declared null and void.

There is no error.

In this opinion the other justices concurred.

       “The United States Supreme Court has defined a ‘detainer’ as a ‘ “notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” ’ United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978), quoting H.R. Rep. No. 91-1018, 91st Cong., 2d Sess. 2 (1970); S. Rep. No. 91-1356, 91st Cong., 2d Sess. 2 (1970); quoted in Cuyler v. Adams, 449 U.S. 433, 436 n.3, 101 S. Ct. 703, 66 L. Ed. 2d 641 (1981).” State v. Braswell, 194 Conn. 297, 300 n.1, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed 2d 786 (1985).

       Connecticut, Maine and Massachusetts are all signatories of the Interstate Agreement on Detainers. See General Statutes § 54-186; 34 Me. Rev. Stat. Ann. §§ 1411 through 1419; Mass Gen. Law. Ann. c. 276, §§ 1-1 through 1-8.

       General Statutes § 54-186, article II, provides: “As used in this agreement: (a) ‘State’ shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico, (b) ‘Sending state’ shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availablility is initiated pursuant to article IV hereof, (c) ‘Receiving state’ shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to article III or article IV hereof.”

       General Statutes § 54-186, article I, provides: “The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures."

       We note that our conclusion with respect to this issue does not prevent a “receiving state” whose detainer has been dismissed from using the extradition process upon the completion of the prisoner’s sentence in Connecticut. See Hickey v. State, 349 N.W.2d 772, 777 (Iowa App. 1984); Baker v. Schubin, 72 Misc. 2d 413, 339 N.Y.S.2d 360 (1972).

       We indicated earlier in this opinion that the trial court made no specific finding on the petitioner’s compliance with the IAD or lack thereof. While it is firmly established that it is not our function to retry cases on appeal; Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 217, 427 A.2d 988 (1984); State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983); the absence of a written request compels a conclusion that, as a matter of law, the petitioner did not comply with the IAD and therefore a factual finding by the habeas court is not necessary to our disposition of this issue.

       General Statutes § 54-186, article IV, provides in pertinent part: “(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state miade available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor or the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
      “(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. . . .”

       General Statutes § 54-186, article III, provides: “(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of the imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of correction or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, commissioner of correction or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
      “(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of correction or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
      “(e) Any request for final disposition made by a prisoner pursuant to paraghaph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
      “(f) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.”

       We note that the petitioner's letters to the Superior Courts in Massachusetts and Maine did not invoke the provisions of the IAD, as they did not include a certificate of the “appropriate official having custody of the prisoner” as required by article III (a). Hickey v. State, 349 N.W. 2d 772, 778 (Iowa App. 1984); Coit v. State, 440 So. 2d 409 (Fla. App. 1983); People v. Collins, 85 Ill. App. 3d 1056, 407 N.E.2d 871 (1980). In addition, the petitioner makes no claim that his subsequent letters to Somers officials invoked the notice provisions of article III (a) and (b).

       This conclusion necessarily disposes of any discussion concerning the petitioner’s second claim for relief in which he seeks to avoid being transferred to the custody of the Massachusetts authorities.


author: Santaniello, J.

text:
    State of Connecticut v. Herbert Dolphin
    (12235)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued January 14
    decision released May 19, 1987

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Santaniello, J.

The dispositive issue in this appeal is whether the trial court erred in restricting the scope of questioning during the voir dire examination of the potential jurors. The defendant, Herbert Dolphin, after a trial to a jury, was found guilty of robbery in the first degree and subsequently was found to be a persistent dangerous felony offender by a panel of three judges. The defendant appealed from the judgment of these convictions. We find error and remand the case for a new trial.

The facts relevant to this appeal are as follows: On March 22, 1981, at approximately 3:30 a.m., Don Marshall, the victim, picked up the defendant hitchhiking along Whalley Avenue in New Haven and drove him to the corner of Ann and Kossuth Streets in that city. As the defendant exited Marshall’s van, he turned around and, wielding a sawed-off shotgun, demanded Marshall’s money. Marshall had only two dollars, which he gave to the defendant who fled. Marshall then drove to a nearby gas station in the hope of locating the police. When he arrived at the station, he found several police officers and informed them that he had just been robbed. At the suggestion of one of the officers, Marshall accompanied Officer Mark Kunza in an attempt to find the person who had committed the robbery. As the two approached the intersection of Congress Avenue and West Street, Marshall saw the defendant standing outside the Flaming Knights Motorcycle Club, and identified the defendant to the police officer as the man who had robbed him. Upon seeing the police car, the defendant ran around the side of the building toward the back of the club. As he fled, the defendant tossed an object over a fence located at the rear of the building. The defendant then attempted to climb the fence and when he was unable to do so, attempted to enter the building through a side door, but was apprehended by Kunza. The officer arrested and searched the defendant, seizing two one dollar bills and two twelve gauge shotgun shells from the defendant’s person. Following the arrest, Kunza searched the lot on the other side of the fence and found a double barrel sawed-off shotgun lying in the bushes.

The defendant was charged in a two part indictment with the crimes of robbery in the first degree in violation General Statutes § 53a-134 (a) (2) and being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). After a trial to a jury on part A of the indictment, the first degree robbery charge, the defendant was found guilty. Thereafter, the defendant entered a plea of not guilty to part B of the indictment and elected a trial to the court. Following a trial before a panel of three judges, the defendant was found to be a persistent dangerous felony offender, and was sentenced to a term of imprisonment of not less than twenty-five years nor more than life.

On appeal, the defendant claims that the trial court erred in: (1) restricting the voir dire examination of the prospective jurors; (2) refusing to remove the leg restraints placed on the defendant during trial; (3) refusing to instruct the jury on the lesser offenses of robbery in the second degree and robbery in the third degree; (4) instructing improperly the jury on circumstantial evidence and the burden of proof; (5) failing to instruct the jury on the statutory definition of “intent”; (6) denying his motions for dismissal, acquittal and in arrest of judgment on the charge of being a persistent dangerous felony offender; (7) denying his challenge to the jury array; and (8) denying his motion to correct an illegally imposed sentence. We find error on the defendant’s first claim and remand the case for a new trial.

I

The record reflects that fifty-six potential veniremen were examined from whom a jury of twelve, plus two alternates, were selected. During the voir dire examination, both the state’s attorney and defense counsel sought to question the first member of the venire to ascertain whether she would give more or less credibility to a police officer’s testimony solely because of his occupation. The trial court, however, refused to allow either attorney’s inquiry. During the examination of the second venireman, defense counsel attempted to pursue the same line of questioning. Again the court interrupted defense counsel and refused to allow the question. Prior to the examination of the third prospective juror, defense counsel stated that he intended to question the remaining potential jurors “about whether they would put more weight on a policeman’s testimony or that of another witness solely because he is a policeman,” but would not continue that line of questioning because the court “has made it clear . . . that [it] would sustain the objection.” The court replied, “I have sustained the objections to certain questions that have been asked. As far as I’m concerned you don’t have to repeat the question to each.”

The defendant now claims that the trial court violated his constitutional right to question the members of the venire and abused its discretion in restricting the voir dire examination. We agree with the defendant’s contention.

Section 19 of article first of the Connecticut constitution, as amended by article IV, provides in part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.” See, e.g., Lamb v. Burns, 202 Conn. 158, 162, 520 A.2d 190 (1987); State v. Marsh, 168 Conn. 520, 521, 362 A.2d 523 (1975). Further, General Statutes § 54-82f provides that “[i]n any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. ...”

Because of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry. State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976). The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process. Accord State v. Haskins, 188 Conn. 432, 450 A.2d 828 (1982). Therefore, the court’s actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted. State v. Dahlgren, 200 Conn. 586, 601, 512 A.2d 906 (1986); State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Anthony, supra, 174; State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).

The exercise of the court’s discretion, however, must be tempered to comport with the goals of the voir dire examination. We have recognized that the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge. See State v. Rogers, supra; State v. Hill, 196 Conn. 667, 671, 495 A.2d 699 (1985); State v. Anthony, supra, 174-75; Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33 (1950). “[T]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.” State v. Higgs, supra.

Recently, this court has had the opportunity to address essentially the same issue raised by the defendant in the present case: namely, whether the restriction of questions to prospective jurors concerning their possible predisposition to give additional weight to a police officer’s testimony solely because of the officer’s occupation constitutes reversible error. See State v. Rogers, supra; State v. Hill, supra. In State v. Hill, supra, 672-73, we reasoned that when important testimony is anticipated from certain witnesses whose official status is such that some jurors might be inclined to attach greater or less credence to that testimony, both counsel should be permitted to question the jurors with respect to this possible bias. Accordingly, we concluded that the trial court’s refusal to allow defense counsel to inquire whether the jurors would be inclined to give more weight to a police officer’s testimony because of his status constituted reversible error. Similarly, in State v. Rogers, supra, 318-19, we held that when a police officer’s testimony was crucial, the trial court abused its discretion by refusing to allow defense counsel to question prospective jurors on whether they would give more credence to a police officer’s testimony solely because of his official status.

The state contends that our holdings in Hill and Rogers are not necessarily dispositive of this case. First, the state claims that the trial court’s preliminary instructions to the prospective jurors as to the weight to be afforded to a police officer’s testimony, coupled with both counsels’ opportunity to question the jurors on whether they could follow the court’s instructions, adequately provided the information needed to aid counsel in exercising their peremptory challenges. We find the state’s attempt to distinguish Hill and Rogers from the present case without merit.

As we stated in State v. Rogers, supra, 317, “[although the court’s preliminary instructions to the panel were expansive, thorough and well done, the fact that a court instructs the jury panel prior to voir dire and or charges the jury at the conclusion of the trial does not satisfy the defendant’s constitutional right to examine, personally or by counsel, each juror. The court’s charge does not necessarily delve into the mental processes of the jurors. It does not reveal the innermost thoughts, prejudices or feelings of the individual jurors.” Similarly, a perfunctory inquiry as to whether a prospective juror will follow a court’s preliminary instructions does not necessarily divulge any hidden prejudice or partiality harbored by the venireman.

Second, the state contends that, unlike the police officers’ testimony in Hill and Rogers, the officers’ testimony in this case was not pitted against the defendant’s and therefore their credibility was not challenged. Again, we find the state’s argument unpersuasive.

Here, two of the three witnesses called by the state were police officers, and their testimony was crucial to the state’s case. In order to establish that the defendant committed a robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), it was incumbent upon the state to prove beyond a reasonable doubt that the defendant, in the course of the commission of a robbery, or in immediate flight therefrom, was armed with a deadly weapon. By necessary implication, the state was required to prove that the defendant was armed with a weapon, whether loaded or unloaded, from which a shot may have been discharged. General Statutes § 53a-3 (6).

At trial, the state introduced the sawed-off shotgun found by Officer Mark Kunza in the lot next to the Flaming Knights Motorcycle Club as the weapon allegedly used by the defendant. Officer Roy Olson, a sergeant with the New Haven Police Department, testified as to the operability of the shotgun and Kunza testified concerning the defendant’s actions at the motorcycle club which linked the defendant to the weapon. On direct examination, Kunza testified that he saw the defendant throw an object that he “perceived ... to be the shotgun in question” over the fence. Although the defendant did not present extrinsic evidence to contradict Kunza, the defendant did challenge Kunza’s testimony on cross-examination, and Kunza admitted that he did not see the object that the defendant had thrown over the fence. Moreover, although the victim linked the defendant to the gun, he did so somewhat equivocally, and at trial Marshall’s credibility was impeached, thereby magnifying the importance of the officer’s testimony.

The police officers’ testimony was crucial in establishing the state’s case, and, in any event, the defendant had the right to attempt to ascertain whether a juror might be more, or less, inclined to credit their testimony solely because of their official status. “It was of vital importance to the defendant that if any such inclination existed it be brought to light. He was entitled to explore this area of possible disqualification prior to the impaneling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge. State v. Higgs, supra, 144.

“Nothing could be plainer than that a predisposition to attach greater or less credence to a witness’ testimony simply because of that witness’ position as an officer is inconsistent with the defendant’s constitutional and statutory right to an impartial jury. The denial of such a fundamental right cannot be countenanced. The trial court’s refusal to allow defense counsel to ask prospective jurors whether they would be inclined to give more weight to the testimony of a police officer merely because of that person’s official status constituted an abuse of discretion.” State v. Hill, supra, 673; see also State v. Rogers, supra, 319. Accordingly, we find error and order a new trial.

Although our holding is dispositive of this appeal, we will consider certain of the defendant’s other claims of error which are likely to arise upon retrial.

II

The defendant next claims that the trial court erred in refusing to charge the jury on robbery in the second degree as a lesser included offense of robbery in the first degree.

The law governing a defendant’s right to a lesser included offense instruction is well settled. See, e.g., State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); State v. Castro, 196 Conn. 421, 427-29, 493 A.2d 223 (1985); State v. Vass, 191 Conn. 604, 616-17, 469 A.2d 767 (1983); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). In State v. Whistnant, supra, this court articulated a four-pronged test for determining the propriety of a lesser included offense charge. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id.

We conclude that the trial court did not err in refusing to instruct the jury on the lesser offense of robbery in the second degree because, in this case, the second prong of the Whistnant test has not been satisfied.

The indictment charging the defendant with the crime of robbery in the first degree stated that the defendant “did commit a robbery of Don Marshall, Jr., and, in the course of the commission of the crime or of the immediate flight therefrom, he was armed with a deadly weapon, to wit: a sawed-off shotgun, in violation of Section 53a-134 (a) (2) of the Connecticut General Statutes.” There was no bill of particulars to elaborate on or make more specific the crime charged.

Robbery in the second degree requires that “in the course of the commission of the crime [of robbery] or of immediate flight therefrom, [the defendant] or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.” General Statutes § 53a-135 (a) (2). Robbery in the first degree in violation of § 53a-134 (a) (2), however, requires that a person or another participant, in committing a robbery or in immediate flight therefrom, be armed with a deadly weapon. The defendant need not display the weapon nor threaten to use it to commit a robbery in the first degree. One merely has to be so armed. “An example which comes to mind would be the situation where the accused has a loaded gun in his pocket and commits a robbery without ever using or referring to the weapon. He would be armed but never have displayed or threatened the use of a weapon as required in the crime of robbery in the second degree.” State v. Anderson, 178 Conn. 287, 294, 422 A.2d 323 (1979). Thus, it is possible to commit a robbery in the first degree, as set forth in this particular indictment, without having committed the lesser offense of robbery in the second degree. See id.; cf. State v. King, 6 Conn. App. 247, 252, 504 A.2d 560 (1986). Accordingly, under the particular indictment in this case, the crime of robbery in the second degree is not a lesser included offense, and the trial coprt did not err in refusing to give the requested instruction.

Ill

The defendant also claims that the trial court erred in denying his motion to dismiss, his motion for acquittal and his motion in arrest of judgment on the charge of being a persistent dangerous felony offender in violation of General Statutes § 53a-40. Specifically, the defendant argues that he cannot be a persistent dangerous felony offender because the prior offense for which he was convicted does not fall within the purview of § 53a-40. We disagree.

On August 12, 1981, the defendant was indicted by a grand jury in a two part indictment. Part B of the indictment stated that on March 17,1972, the defendant had been convicted of the crime of assault with intent to kill in violation of General Statutes § 54-117, and sentenced to a term of imprisonment of more than one year. The indictment further stated that if convicted of the crime set forth in part A of the indictment, the defendant would be a persistent dangerous felony offender as defined in § 53a-40 (a).

Prior to trial, the defendant filed a motion to dismiss the charge of being a persistent dangerous felony offender, which the court denied. After the jury returned a verdict of guilty on the first degree robbery charge, the defendant, again arguing that he could not be found to be a persistent dangerous felony offender, moved to dismiss part B of the indictment. Again, the trial court denied the defendant’s motion. The defendant subsequently filed a motion for acquittal. Finally, during the sentencing proceedings, the defendant filed a motion in arrest of judgment, reasserting his position that he could not be found to be a persistent dangerous felony offender. The trial court then denied both the defendant’s motion for acquittal and his motion in arrest of judgment. We find no error.

General Statutes § 53a-40 (a) provides in relevant part that “[a] persistent dangerous felony offender is a person who (1) stands convicted of . . . robbery in the first or second degree . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death . . . for any of the following crimes . . . prior to October 1, 1971, in this state, assault with intent to kill under section 54-117

The defendant argues that the plain meaning of this language “establishes a temporal limitation on the requirement of a conviction and imprisonment” for the crime of assault with intent to kill, and that a person must be convicted and imprisoned for that crime prior to October 1,1971, for § 53a-40 (a) to apply. Although the defendant had committed the crime of assault with intent to kill in violation of General Statutes § 54-117 prior to October 1,1971, he was not convicted of that crime until March 27,1972, after the repeal of that statute. The defendant, therefore, contends that he cannot be found to be a persistent dangerous felony offender under § 53a-40 (a). We find the defendant’s interpretation of § 53a-40 unpersuasive.

In addressing the defendant’s elaim, we are guided by the well defined principles of statutory construction that require us to ascertain and give effect to the apparent intent of the legislature. State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. If the language of the statute is plain and unambiguous, we need look no further than to the words themselves, because we assume that the language expresses the intentions of the legislature. State v. Blasko, supra; Rhodes v. Hartford, supra; Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). If, however, the statute is ambiguous, we must ascertain the legislative intent by looking to the language of the statute, its legislative history and the purpose the statute is to serve. State v. Blasko, supra; Rhodes v. Hartford, supra; State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985).

The defendant contends that the plain language of § 53a-40 (a) demonstrates that the legislature intended that, to be considered a persistent dangerous felony offender, a person must be convicted of and imprisoned for, inter alia, assault with intent to kill prior to October 1, 1971. In his view, the language “prior to October 1,1971,” signifies that a person must be convicted and imprisoned before that date. An examination of § 53a-40 (a) reveals that the language is not as unambiguous as the defendant leads us to believe.

Section 53a-40 (a) requires that, as a predicate to being found guilty of being a persistent dangerous felony offender, a person, in addition to being convicted of the present offense, be convicted of and imprisoned for having previously committed certain enumerated crimes. The crimes listed are as follows: “(A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1, 1975, any of the crimes enumerated in Section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes . . . .” General Statutes § 53a-40 (a). We find it unclear from the language of the statute itself whether the legislature intended to limit persistent dangerous felony offenders to those persons who were convicted of and imprisoned for committing an assault with intent to kill prior to October 1, 1971, or whether the legislature was merely recognizing that on October 1, 1971, § 54-117 was repealed.

A review of the legislative debate concerning § 53a-40 (a) or the act’s subsequent amendments fails to resolve this issue. A reading of the original act itself, however, does shed some light on the intent of the legislature. Number 828 of the 1969 Public Acts lists the prior crimes for which a person is a persistent dangerous felony offender to include “prior to the effective date of this act, in this state: Assault with intent to kill, under section [54-117].” (Emphasis added.) Public Acts 1969, No. 828, went on to repeal, effective October 1, 1971, General Statutes § 54-117. It is apparent that the legislature was not “establishing] a temporal limitation on the requirement of a conviction and imprisonment” for the crime of assault with intent to kill, but merely recognizing that after the effective date of Public Acts 1969, No. 828, the existing statute setting forth the crime of assault with intent to kill was repealed.

Our conclusion comports with the purpose of the persistent dangerous felony offender statute. The Commission Comment on § 53a-40 states that “[t]his section creates a new scheme of sentencing relating to recidivists .... The purpose of the definition of persistent dangerous felony offender is to identify those persons who have shown themselves to be repeatedly physically dangerous to others. The essential elements of the definition of a persistent dangerous felony offenders are: (1) a present conviction of the dangerous felonies listed in subsection (a) (1); and (2) at least one prior dangerous felony conviction and imprisonment therefor for more than one year.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, p. 14. In discussing General Statutes (1930 Rev.) § 6057, a predecessor of § 53a-40, this court stated that “[t]he purpose of such statutes is to remove from society persons whose criminal tendencies have not been cured by punishment and by the state’s efforts to rehabilitate them.” State v. Mead, 130 Conn. 106, 110, 32 A.2d 273 (1943). Thus, it is clear that the purpose of this statute is to provide increased punishment for those who have committed dangerous felonies and have been deemed to be dangerous to society, regardless of the date of conviction and imprisonment.

Notwithstanding, the defendant argues that because § 53a-40 is a penal statute we should construe the statute strictly and resolve any ambiguity in favor of lenity. Although we recognize the fundamental principle that criminal statutes are to be construed strictly, “it is equally fundamental that the rule of strict construetion does not require an interpretation which frustrates an evident legislative intent. State v. Belton, 190 Conn. 496, 505-506, 461 A.2d 973 (1983); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); State v. Sober, 166 Conn. 81, 91, 347 A.2d 61 (1974).” State v. Ellis, supra, 445; see also State v. Golino, 201 Conn. 435, 441, 518 A.2d 57 (1986). Moreover, there is a presumption that the legislature intends to accomplish a reasonable and rational result rather than a “ ‘difficult and possibly bizarre’ ” one. State v. Blasko, supra, 558; Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). It would be anomalous to have one person found guilty of being a persistent dangerous felony offender because he committed the crime of assault with intent to kill, was convicted and imprisoned prior to October 1, 1971, while another person, who committed the same crime on the same day, not be considered a persistent dangerous felony offender because, by mere happenstance, he was not convicted and imprisoned until after October 1, 1971. Such a result would undermine the legislative intent of § 53a-40 and would frustrate the purpose of the persistent dangerous felony offender statute.

Accordingly, we conclude that the trial court did not err in denying the defendant’s motions to dismiss, for acquittal and in arrest of judgment with respect to part B of the indictment charging him with being a persistent dangerous felony offender.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       “[General Statutes] See. 53a-40. persistent offenders: definitions; defense; authorized sentences, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1,1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       The fourth amendment to Connecticut constitution provides: “Section 19 of article first of the constitution is amended to read as follows:
      “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       “[General Statutes] Sec. 54-82f. voir dire examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

       Initially, the state argues that we should refuse to consider this issue because the defendant had failed to exhaust his peremptory challenges prior to the selection of the twelve jurors who sat in judgment. Quoting State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983), the state claims that “[ujnless all [the defendant’s] peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he might have preferred others.”
      The defendant, however, must be entitled to explore the area of possible bias or partiality before he can intelligently challenge for cause or exercise his right of peremptory challenge. State v. Hill, 196 Conn. 667, 673, 495 A.2d 699 (1985); State v. Higgs, 143 Conn. 138, 144, 120 A.2d 152 (1956). It cannot be said, then, that the defendant permitted a juror to serve whom he regarded as biased, without first having had the opportunity to inquire into that possible bias. Therefore, the fact that the defendant did not exercise all of his peremptory challenges does not foreclose his ability to raise the present claim of error.

       At trial, testimony was introduced that Marshall may have been under the influence of drugs or alcohol on the night in question.

       The defendant also contends that the trial court erred in refusing to instruct the jury on the lesser offense of robbery in the third degree. Because we have found error on the defendant’s first claim and have remanded this case for a new trial, we need not consider this claim, in that the propriety of such a charge will depend, in part, on the evidence adduced at the new trial.

       Although the defendant filed a motion for a bill of particulars, that motion was subsequently withdrawn.

       “[General Statutes] Sec. 53a-135. robbery in the second degree: class C felony, (a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.
      “(b) Robbery in the second degree is a class C felony.”

       “INDICTMENT
      “PART B
      ‘ ‘And said Grand Jurors within and for the Judicial District of New Haven further accuse Herbert Dolphin, AKA Hurlbert Dolphin of being a Persistent Dangerous Felony Offender and charge that, in addition to the crime set forth in Part A of this Indictment, in the Superior Court at New Haven on the 17th day of March, 1972, the said Herbert Dolphin, AKA Hurlbert Dolphin was convicted of the crime of Assault with Intent to Kill in violation of Section 54-117 of the Connecticut General Statutes and was sentenced to an imposed term of imprisonment of more than one (1) year in State Prison.
      “And so the Grand Jurors charge that if the said Herbert Dolphin, AKA Hurlbert Dolphin is convicted of the crime set forth in Part A of this Indictment, he is a Persistent Dangerous Felony Offender as defined in Section 53a-40 (a) of the Connecticut General Statutes.
      “Dated at New Haven, August 12, 1981.”

       “[General Statutes (Rev. to 1968)] Sec. 54-117. penalty for common law high crimes and misdemeanors. In case of conviction for any high crime or misdemeanor at common law, or of assault with intent to kill, the offender may be imprisoned not more than fifteen years or be fined not more than five hundred dollars or both, and, in case of conviction for any other offense at common law, the offender may be imprisoned not more than one year or be fined not more than three hundred dollars or both.”

       See footnote 2, supra.