author: Santaniello, J.

text:
    Ford Motor Credit Company v. B. W. Beardsley, Inc.
    (13327)
    Healey, Shea, Callahan, Glass and Santaniello, Js.
    Argued March 3
    decision released June 21, 1988

      JohnB. Nolan, with whom were Steven M. Greenspan and, on the brief, James J. Tancredi and George M. Purtill, for the appellant (plaintiff).

      Thomas E. Minogue, Jr., with whom was Kimberly A. Grillo, for the appellee (defendant).
   Santaniello, J.

The plaintiff, Ford Motor Credit Company, brought an action for replevin of certain motor vehicles in the possession of the defendant, B. W. Beardsley, Inc. On June 27,1986, the plaintiff directed an ex parte application for the prejudgment remedy of replevin to a judge of the Superior Court for the judicial district of Hartford-New Britain at Hartford. Thereafter, on July 10,1986, the court issued an order authorizing the replevin of certain property. The action was made returnable to the judicial district of New Haven on August 19, 1986.

On December 15,1986, the parties appeared before the court in the judicial district of New Haven on the defendant’s motion to dissolve the prejudgment remedy. The defendant contended, inter alia, that the ex parte prejudgment application was improper as it was made to a judge of the Superior Court for the judicial district of Hartford-New Britain at Hartford, rather than to the judicial district of New Haven, in violation of General Statutes § 52-278c (a) (l). The plaintiff contended that pursuant to General Statutes § 52-278e* it was unnecessary to direct the ex parte application to the court to which the action was returnable. The court, after accepting an offer of proof from the plaintiff, vacated the plaintiffs prejudgment remedy of replevin on the ground that the plaintiff had failed to comply with § 52-278c (a) (1) by failing to direct its ex parte application for prejudgment remedy to the court to which the action was returnable.

The plaintiff thereafter took this appeal contending that the trial court erred in: (1) vacating the plaintiffs prejudgment remedy on the ground that an ex parte application for a prejudgment remedy must be presented to the court wherein the action is returnable; (2) vacating the plaintiffs prejudgment remedy without allowing the plaintiff an opportunity to prove probable cause at the hearing on the defendant’s motion to dissolve the prejudgment remedy; and (3) failing to grant the plaintiff’s motion to stay the court’s order of December 15,1986, vacating the plaintiff’s prejudgment remedy of replevin.* * As we find that the court erred in vacating the plaintiff’s prejudgment remedy on the Basis that the ex parte application had to be directed to the court to which the action was returnable, it is unnecessary to address the remaining issues.

General Statutes § 52-278a et seq. was “enacted in response to the constitutional instructions of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), [and under that statute,] prejudgment remedies were no longer to be automatically issued by attorneys as commissioners of the Superior Court. Instead, such remedies were to be granted only by a court and, except under the exceptional circumstances specified by the statute, only after a hearing conducted in accordance with the requirements of due process.” Sellner v. Beechwood Construction Co., 176 Conn. 432, 434, 407 A.2d 1026 (1979). In order to comply with due process, notice and an opportunity to be heard must be afforded litigants “ ‘at a meaningful time and in a meaningful manner.’” Fermont Division v. Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979). In accordance with § 52-278e, a prejudgment remedy may issue without notice to the defendant or without a hearing, upon verification to the court by oath of the plaintiff or some competent affiant, that there is probable cause to sustain the validity of the plaintiff’s claim. Glanz v. Testa, 200 Conn. 406, 408-409, 511 A.2d 341 (1986). In order to comply with federal due process requirements, § 52-278e guarantees a defendant the opportunity for an immediate postseizure hearing at which time the court will dissolve the prejudgment remedy unless it determines that probable cause exists to sustain the plaintiff’s claim. Id., 409; Fermont Division v. Smith, supra, 397-98.

The remedy of allowing a plaintiff to secure a defendant’s property in order to satisfy a potential judgment in favor of the plaintiff is a creature of statute. Glanz v. Testa, supra, 408; Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 582, 376 A.2d 60 (1977). No party may obtain a prejudgment remedy in any action unless the party seeking the prejudgment remedy has complied with the statutory mandates. Essex Group, Inc. v. Ducci Electric Co., supra; Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra, 583. The defendant contends that the plaintiff, by directing its ex parte application for the prejudgment remedy to a court other than the one to which the action was returnable, circumvented the mandatory statutory procedures delineated in the prejudgment remedy statute. The plaintiff claims that no such procedure is required by the statute.

“A statute does not become ambiguous solely because the parties disagree as to its meaning.” Commissioner v. Freedom of Information Commission, 204 Conn. 609, 620, 529 A.2d 692 (1987); Luttrell v. Luttrell, 184 Conn. 307, 310-11, 439 A.2d 981 (1981); Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981). A statute is to be read as a whole; Clinton Nurseries, Inc. v. Commissioner of Revenue Services, 205 Conn. 761, 766, 535 A.2d 361 (1988); Struckman v. Burns, 205 Conn. 542, 546, 534 A.2d 888 (1987); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987); University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 399, 512 A.2d 152 (1986); Orticelli v. Powers, 197 Conn. 9, 14, 495 A.2d 1023 (1985); “with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.” American Universal Ins. Co. v. DelGreco, supra; University of Connecticut Chapter, AAUP v. Governor, supra; Orticelli v. Powers, supra. “ ‘If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive, since, where the wording is plain, courts will not speculate as to any supposed intention. The question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. . . .’ ” (Citations omitted.) Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 699, 535 A.2d 357 (1988); Struckman v. Burns, supra, 545-46.

The defendant argues that the “inclusive” language of General Statutes § 52-278b providing that “no prejudgment remedy shall be available to a person in any action at law or equity unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive” dictates that § 52-278e must be read in conjunction with § 52-278c (a) (1), and that the provisions of § 52-278c (a) (1) for “[a]n application, directed to the superior court to which the action is made returnable, for the prejudgment remedy requested” must therefore be followed when a party is seeking an ex parte prejudgment remedy. Such an interpretation is untenable. An interpretation of a statute that would have it function in a “difficult and possibly bizarre” fashion must be avoided. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987); Peck v. Jacquemin, 196 Conn. 53, 72, 491 A.2d 1043 (1985). Section 52-278c governs those situations in which a hearing is scheduled to determine whether the requested prejudgment remedy should be granted. The statute begins with the words “[ejxcept as provided in §§ 52-278e and 52-278Í, any person desiring to secure a prejudgment remedy shall [follow delineated procedures].” Section 52-278e governs prejudgment remedies sought without a hearing. This statute states in relevant part that “[t]he 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” in certain delineated circumstances.

The defendant, in suggesting an inclusive interpretation of § 52-278b, propounds an illogical reading of the statute in view of the fact that procedures for ex parte proceedings and proceedings that are not ex parte are Separately stated. Clearly, not every section of chapter 903a of the General Statutes comes into operation whenever a party seeks a prejudgment remedy. “ ‘In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987); Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985). “ ‘Statutes must be construed, if possible, that absurdity and mischief may be avoided.’ ” King v. Board of Education, supra, 333.

The defendant suggests that allowing a party to seek an ex parte application for a prejudgment remedy from a court other than that to which the action is returnable may promote judge shopping or forum selection. The defendant appears to overlook the procedural safeguards available to defendants who wish to contest the granting of an ex parte prejudgment remedy. Section 52-278e “guarantees the defendant the opportunity for an immediate post-seizure hearing at which the prejudgment remedy will be dissolved unless the court determines ‘that there is probable cause to sustain the validity of the plaintiffs claim.’ ” Glanz v. Testa, supra, 409. That hearing would be held in the judicial district to which the action is returnable.

A court may allow an ex parte prejudgment remedy to be issued by an attorney only in those exceptional circumstances delineated in the statute. This statutory scheme reflects an intent by the legislature to protect the interest of a party which might otherwise be jeopardized, while affording a defendant adequate procedural safeguards. To suggest that parties be required to travel to distant courts in the face of some of the exigent circumstances to obtain an ex parte order, is to defy the intent of the legislature as evidenced by the language of the statutes.

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

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-278c. documents required, forms, hearing. TEMPORARY RESTRAINING ORDER. ENTRY FEE. SERVICE ON DEFENDant. (a) Except as provided in sections 52-278e and 52-278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents:
      “(1) An application, directed to the superior court to which the action is made returnable, for the prejudgment remedy requested. . .

       “[General Statutes] Sec. 52-278e. allowance of pkejudgment remedy WITHOUT HEARING. NOTICE TO DEFENDANT. SUBSEQUENT HEARING AND order, (a) 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.
      “(b) If a prejudgment remedy is granted pursuant to this section, the plaintiff shall include in the process served on the defendant the following notice prepared by the plaintiff: you have rights specified in the Connecticut GENERAL STATUTES, INCLUDING CHAPTER 903A, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST THAT THE PREJUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM EXECUTION.
      “(c) The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiffs claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.”

       The plaintiff, on December 22,1986, appealed the court’s decision and moved to stay the order vacating the prejudgment remedy. The court denied the motion to stay its order by decision dated February 24,1987. The plaintiff thereafter filed a motion to review the order denying the stay of execution which was dismissed by the Appellate Court on April 2,1987. This court transferred the appeal to itself on its own motion.

       “[General Statutes] Sec. 52-278b. pre judgment remedies, requirements; EXCEPTION, WAIVER IN COMMERCIAL TRANSACTION. Notwithstanding any provision of the general statutes to the contrary, no prejudgment remedy shall be available to a person in any action at law or equity unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive, except an action upon a commercial transaction wherein the defendant has executed a waiver as provided in section 52-2781”

       See footnote 2, supra.


source: Caselaw Access Project

author: Hull, J. Shea, J.,

license: Public Domain

text:
    Laurie Palomba v. Richard E. Gray
    (13047)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued March 9
    decision released June 21, 1988

      Denise Derby, for the appellant (defendant).

      Joseph X. DuMond, Jr., assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and J. Bernard Davis and Robin L. Wilson, assistant attorneys general, for the appellee (state).
   Hull, J.

The defendant in this paternity action, Richard E. Gray, appeals from the decision of the trial court setting aside the jury’s verdict and ordering a new trial. We find no error.

The record discloses the following. The plaintiff, Laurie Palomba, and the defendant met in the summer of 1975 when the plaintiff was thirteen years old and the defendant was fifteen years old. They both lived on Rawley Avenue in Waterbury. Shortly after they met, they began to have sexual relations. According to the plaintiff, their relationship continued until October 13, 1975. She testified that she had last had sexual intercourse with the defendant in the beginning of October, 1975. The defendant stated that he had moved from Rawley Avenue to Wolcott the first week of August, 1975, and that he had last had sexual intercourse with the plaintiff while he lived on Rawley Avenue. He testified that he did not visit the plaintiff on Rawley Avenue after he moved to Wolcott. Sometime during August, 1975, the plaintiff moved from Rawley Avenue to Yale Street in Waterbury. She claimed that the defendant had visited her at her new home and that it was there that they last had sexual intercourse. The defendant admitted having visited the plaintiff on Yale Street two or three times but did not recall whether they had engaged in sexual intercourse. The defendant terminated their relationship by telephone on October 13,1975. At that time the plaintiff suspected that she was pregnant. Her pregnancy was confirmed by her doctor in December, 1975. On May 6, 1976, the plaintiff gave birth to a son.

In September, 1976, the plaintiff filed a verified petition for paternity proceedings against the defendant. The attorney general is a party to this action since the plaintiff and her son are recipients of public assistance. General Statutes § 46b-160. In November, 1985, the case was tried to a jury which returned a verdict in favor of the defendant. The plaintiff timely moved to set aside the verdict and for a new trial. Both motions were granted by the trial court more than one year after the conclusion of the trial. The defendant appeals and the state is defending the appeal.

The defendant claims that: (1) the trial court erred in setting aside the verdict; (2) the trial court’s 441 day delay in rendering its decision on the motion to set aside the verdict denied the defendant a fair trial in violation of his due process rights; and (3) the trial court violated his due process rights in its application of General Statutes § 46b-160.

I

The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). “The supervision which a judge has over the verdict is an essential part of the jury system. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality.” Burr v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902). The court has a duty to set aside the verdict where the jury’s action is so unreasonable as to suggest that it was the product of such improper influences. State v. Avcollie, 178 Conn. 450, 457, 423 A.2d 118 (1979), cert. denied, 444 U.S 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff’d, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); Roma v. Thames River Specialties Co., 90 Conn. 18, 19-20, 96 A. 169 (1915). A verdict may be set aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury. Roma v. Thames River Specialties Co., supra, 20.

The decision to set aside a verdict entails the exercise of a broad legal discretion that, in the absence of clear abuse, we shall not disturb. O’Brien v. Seyer, supra. Our review of the trial court's action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness; Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980); Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968); since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797 (1898). Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988); Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). The focus of our inquiry is the action of the trial court in setting aside the verdict. Campbell v. Gould, 194 Conn. 35, 39, 478 A.2d 596 (1984).

Litigants, however, have a constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, supra, 138; Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982); Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). “The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.” Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970). Since, in setting aside the verdict, the trial court has deprived the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Jacobs v. Goodspeed, supra.

The plaintiff in a paternity suit must prove her case by a fair preponderance of the evidence. Lavertue v. Niman, 196 Conn. 403, 407, 493 A.2d 123 (1985); Terrasi v. Andrews, 3 Conn. Cir. Ct. 449, 453, 217 A.2d 75, cert. denied, 153 Conn. 729, 214 A.2d 130 (1965). Evidence that the plaintiff has been constant in accusing the defendant of being the father of the child is admissible at trial to corroborate her testimony and to establish a prima facie case. General Statutes § 46b-160; Lavertue v. Niman, supra; Armstrong v. Watrous, 138 Conn. 127, 129, 82 A.2d 800 (1951). Once the plaintiff has established a prima facie case, the burden shifts to the defendant to prove his innocence by evidence other than his own. Mosher v. Bennett, 108 Conn. 671, 674, 144 A.2d 297 (1929); Holmes v. McLean, 5 Conn. Cir. Ct. 476, 479, 256 A.2d 849 (1969).

The trial court found that the evidence demonstrated that the plaintiff had given birth to her child following a nine month period of gestation, that the defendant admitted having had repeated sexual relations with the plaintiff within the period of conception, that the plaintiff had remained constant in her accusation, and that the defendant had admitted that she had been constant in her accusation. The court also stated that the defendant had failed to present evidence other than his own to prove his innocence and, thus, had not met his burden of proof. The trial court concluded that the jury’s verdict was unreasonable in that it did not hold the defendant to his burden of proof. The trial court further held that the verdict for the defendant was so clearly against the evidence as to lead to the conclusion that the jury erred in its application of the law or had been influenced by “lack of knowledge or understanding, or moved by partiality or sympathy for the defendant.”

We first address the trial court’s conclusion that the jury did not hold the defendant to his burden of proof. The record discloses that, although the jury was charged that, upon the plaintiff’s establishment of a prima facie case, the burden of proving his innocence shifted to the defendant, the court never instructed the jury that evidence other than the defendant’s own testimony was required to meet that burden. Accordingly, the jury could not have been expected to apply that legal principle.

We conclude, however, that the trial court did not abuse its discretion in deciding that the jury’s verdict was unreasonable in that it was so against the evidence as to compel the conclusion that it was the result of mistake, partiality or prejudice. Therefore, we hold that it was not error for the trial court to set aside the verdict.

The plaintiff, in addition to having testified to the time frame and the places at which she and the defendant had had sexual intercourse, stated that her son was a full-term baby, weighing seven pounds, eleven ounces and measuring nineteen inches at birth. She said that, during the October 13, 1975 telephone conversation, she had told the defendant that she thought she was pregnant and that the defendant was the first person she told of her suspicion, although it is not clear from her testimony whether she then told him he was the father. She also stated that for some time she did not tell anyone else because she was afraid to do so, but that she eventually told her mother. She estimated that conception had occurred in September, 1975. She asserted that she had telephoned the defendant when she was sure she was pregnant and had told him the news, but, again, it is unclear whether she had told him he was the father. She stated emphatically that she had no doubt that the defendant was the father of her son. She also maintained that she had never had sexual relations with anyone before the defendant. She admitted that the child’s birth certificate does not bear a father’s name, but affirmed that she entered the defendant’s name as father of the boy on forms she completed in connection with her application for public assistance. She denied having had sexual relations during the time in question with anyone other than the defendant.

Cynthia Murgatory Urso, a witness for the plaintiff, testified that she had lived on Rawley Avenue and had been a friend of both the plaintiff and the defendant during the summer and autumn of 1975. She said that before the plaintiff had become pregnant, the plaintiff had told her that she had been having sexual relations with the defendant. Urso stated that during the time the plaintiff was pregnant, she had had a conversation with the defendant about the plaintiff’s pregnancy. Urso said that she had asked him if he was the father and he replied, “Yes, I am,” or “Yes, I think so.” On cross-examination, she testified that she and the defendant had been alone but she could not remember all the circumstances surrounding the conversation. She said that she considered herself a friend of both parties, that she had last seen the plaintiff about one year before the trial, that she had lately spoken to the plaintiff more frequently than usual because of the trial, but that she had not had much opportunity to talk to the defendant.

The plaintiff also presented testimony of her mother and sister. The plaintiffs mother testified that in response to her inquiry upon discovering that the plaintiff might be pregnant, the plaintiff told her that the defendant was the father of the child. Sheila Palomba, who is one year younger than the plaintiff, recalled that sometime around the end of September or the beginning of October, 1975, she entered the plaintiffs bedroom to find the plaintiff in bed and the defendant standing up, finishing closing his pants. She said this incident occurred at the house on Yale Street.

The defendant then testified that he had terminated his relationship with the plaintiff because he found out that she had been dating one Mark Niman. He corroborated the plaintiffs testimony that during a telephone conversation with her in October, 1975, he had ended the relationship and was told that she thought she was pregnant. He denied, however, that she had called him thereafter to tell him she was definitely pregnant. He asserted that he was not aware that she claimed he was the father until September, 1976, when he received the complaint in these proceedings and that, until then, he had not had any contact with the plaintiff following the October 13,1975 telephone conversation. He denied he was the child’s father.

On cross-examination, the defendant said that both he and Niman had been friends of the plaintiff at the time in question. He said he first started a sexual relationship with her in June or July, 1975, but did not remember how frequently they had had sexual intercourse. When asked if he maintained that he had never had sexual intercourse with the plaintiff in the house on Yale Street, he replied that he could not remember. Nor did he remember having had the conversation related by Urso, but conceded it was possible he had told her he was the father of the child. He denied that the incident described by Sheila Palomba had ever occurred.

The defendant farther testified to having argued with the plaintiff over her alleged liaison with Niman and that it was after he had told her their relationship was ended that she announced that she might be pregnant. He said that he had been told by James LeRoy about the relationship between the plaintiff and Niman just before he had moved to Wolcott. His responses to the questions of counsel for both parties then became somewhat confused and contradictory. He indicated that he did not see the plaintiff beyond August, 1975, which conflicted with his earlier testimony that he had visited her on Yale Street, but conceded that he had talked to her in person on Yale Street on a few occasions, although he could not remember when.

James LeRoy testified that he had been a friend of both parties in the summer and fall of 1975, but had not been in contact with either one for some years. He said that the plaintiff had been “going out” with both the defendant and Niman at the same time but admitted that he did not know the nature of the plaintiffs relationship with either the defendant or Niman. He also stated that the defendant had never told him the nature of his relationship with the plaintiff.

The defendant’s mother testified that she had been unaware that the defendant had been alleged to be the father of the plaintiff’s child until the end of August, 1976, when the defendant received correspondence “from welfare” regarding support of the boy.

Finally, Niman was called by the plaintiff in rebuttal. Niman testified that he had not had sexual relations with the plaintiff anytime prior to 1978. He said he had lived with her for about six months in the early 1980s, but that their relationship had not worked out. He responded affirmatively when asked if the fact that he was not the boy’s father had interfered with his relationship with the plaintiff.

The jury also viewed the child, together with the defendant, and later with Niman so his features could be compared to those of each of the men.

The defendant argues that there was insufficient evidence that the plaintiff had been constant in her accusation, that, contrary to the trial court’s conclusion, the defendant did not admit ever having had sexual relations with the plaintiff during the period of conception, that the plaintiff failed to adduce any medical evidence regarding the length of her pregnancy and never asked the court to take judicial notice of medical facts pertaining to gestation, and that, since the outcome of the case ultimately rested on the credibility of the witnesses, the jury’s decision should not have been disturbed.

The defendant contends that the fact that the plaintiff told only her mother that the defendant was the father of her child is insufficient to establish that she had been constant in her accusation. Constancy of accusation is not an essential element of the plaintiffs prima facie case in a paternity proceeding. Armstrong v. Watrous, supra; Holmes v. McLean, supra. We have never considered the mother’s declarations or accusations as independent facts showing paternity, but as corroborative only of her testimony in court. Lavertue v. Niman, supra, 407 n.6; State v. Segerberg, 131 Conn. 546, 550, 41 A.2d 101 (1945); Hellman v. Karp, 93 Conn. 317, 320-21, 105 A. 678 (1919). Constancy of accusation evidence is mere surplusage if other evidence is sufficient to support a conclusion of paternity. Leonard v. Miranda, 38 Conn. Sup. 680, 682, 460 A.2d 1318 (1983). We conclude that other evidence presented by the plaintiff constituted a prima facie case, regardless of the existence of constancy of accusation evidence. Therefore, we need not decide whether the plaintiff’s declaration to her mother alone was evidence sufficient to establish her prima facie case.

It was undisputed that the child was bom after a full-term pregnancy. Further, the defendant did not object to the jury charge that “the period of gestation is a matter of which you may take notice. That is, the normal period of gestation is nine months which means that the time of conception and the time of birth are nine months apart.” Nine months had elapsed between the beginning of August, 1975, and May 6,1976, when the baby was born. The plaintiff did not waver in her assertions that the defendant was the first person with whom she had engaged in sexual relations, that such relations took place during the likely period of conception and that she had not had sexual relations with anyone else during that time. This evidence, added to Urso’s testimony of the defendant’s alleged admission of paternity, was sufficient to establish a prima facie case.

It thus fell to the defendant to refute the plaintiff’s evidence. Terrasi v. Andrews, supra, 454. Although he denied paternity, his testimony was conflicting as to the times of contact with the plaintiff and was marked by lapses of memory regarding his conversation with Urso and whether he had engaged in sexual intercourse with the plaintiff after she had moved to Yale Street. The only witness that the defendant produced to show that the plaintiff had been having sexual relations with Niman admitted that he did not know the nature of the plaintiff’s relationship with either Niman or the defendant. In light of the ambiguity of the defendant’s evidence, we conclude that the jury could not reasonably have returned a verdict for him and that the trial court did not abuse its discretion in setting aside the verdict as the result of mistake, prejudice, partiality or sympathy, and in ordering a new trial. Further, where, as here, the relief sought is a new trial, the court has discretion to weigh the evidence and to consider the credibility of the witnesses to determine whether the interests of justice require that the relief be granted. Gaines v. Manson, 194 Conn. 510, 520-21 n.12, 481 A.2d 1084 (1984). We interfere in the trial court’s decision to grant a new trial only where the court has misapplied or mistaken some principle of law or has manifestly abused its discretion. Loomis v. Perkins, supra, 447. We find no abuse of discretion in the trial court’s action.

II

Finally, the defendant claims that the trial court’s 441 day delay in rendering its decision on the motion to set aside the verdict denied the defendant a fair trial, violating his due process rights. The defendant’s brief does not articulate his due process claim but posits that Practice Book § 320, which requires that a motion to set aside the verdict be filed within five days after the verdict, discloses a policy that a judge’s decision on the motion be rendered within a reasonable time. At oral argument, counsel for the defendant stated that the defendant’s property and liberty interests were affected by the delay. He contended that if he is adjudged the father of the plaintiff’s child, he will be liable for support from the birth of the child, a period of more than eleven years, and that if he were not able to make the payments, he would be subject to incarceration. We are unpersuaded by these arguments.

We agree with the defendant that the lapse of more than one year to decide the motion was an inordinate delay. Wehaveheretofore expressed our disapproval of a trial judge’s suspension of a case in limbo by failing to act expeditiously on a motion to set aside a verdict. Tough v. Ives, 159 Conn. 605, 606-607, 268 A.2d 371 (1970). The record in this case, however, does not reflect whether inquiry was made to the court regarding the status of the motion. Further, the defendant did not pursue the remedy available from this court, an order directing the trial court to dispose of the motion. Gordon v. Feldman, 164 Conn. 554, 558, 325 A.2d 247 (1973); Tough v. Ives, supra. Consequently, we presume he acquiesced in the delay.

Moreover, we also find the defendant’s due process argument premature. General Statutes § 46b-160 provides that the defendant’s liability, if any, for past support is limited to the three years preceding the granting of the paternity petition. Since the defendant has not been adjudged the father of the child, it is obvious that the defendant’s liberty and property interests are not yet implicated. In addition, the extent of his liability, should the petition be granted, would not be as far-reaching as he anticipates.

There is no error.

In this opinion Peters, C. J., Callahan and Covello, Js., concurred.

Shea, J.,

concurring. Although I agree with the majority that the verdict for the defendant in this paternity action should be set aside, I arrive at that result by a different route.

This case is typical of paternity actions, as they have been routinely presented from time immemorial, in that there is very little significant evidence other than the testimony of the interested parties and, in the case of the mother, her declarations to others, which were admitted to show constancy of accusation. Under such circumstances the determination of paternity has ordinarily been deemed to turn upon the credibility of witnesses, a subject deemed to be wholly within the province of the trier, in this case the jury. “The resolution of conflicting testimony is the province of the jury.” State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986). Although the opinion cites many cases where a trial court has set aside a verdict, most of these have involved the situation where the conclusions or inferences drawn by the jury from the evidence, which must be viewed most favorably in support of the verdict, could not reasonably have been reached. Where the issue turns upon the conflicting testimony of lay witnesses and no “indisputable physical facts” are involved, as in this case, it is necessary to reach back more than a half century to find a case where this court has approved setting aside a verdict when “the evidence was conflicting, and there was direct evidence in favor of the [party] who prevailed with the jury.” Roma v. Thames River Specialties Co., 90 Conn. 18, 20, 96 A. 169 (1915). I am disinclined to retrogress to an era when less deference was paid to a jury determination of credibility, especially in a paternity case typical of so many others in all respects except that the putative father here has prevailed.

I agree, nevertheless, that the trial court properly set aside the verdict in this case, because the transcript indicates that the jury probably was influenced prejudicially by the absence of any evidence of the use of blood typing to determine the paternity of the child. At the conclusion of the charge the jury submitted the following question to the court: “Why was there no blood tests (sic) or typing of the plaintiff, child and defendant?” The trial court’s response was: “There was no evidence of that in this case and, therefore, that is not something before you. I cannot by law comment and you are not by law to speculate on something that was not presented in evidence before you in your deliberations.”

The standard blood grouping tests for determination of paternity had been performed pursuant to a motion of the defendant filed in 1976, but they did not establish “definite exclusion of the putative father,” as General Statutes § 46b-168 requires to make the results admissible in evidence. In Moore v. McNamara, 201 Conn. 16, 27-33, 513 A.2d 660 (1986), a case decided about three months before the trial of the present action, this court held that the exclusion of blood grouping tests in § 46b-168 was not applicable to the use of genetic marker tests, including the human leukocyte antigen (HLA) test, for the purpose of establishing paternity, though we did not fully resolve whether such evidence was admissible under principles of law relating to evidence derived from recent scientific developments. The use of these new techniques has raised to such a high level the ability of the scientific community to identify the father of a child whose paternity is disputed that the resolution of such an important issue should no longer be had without such scientific testimony.

Because the issue of paternity is of paramount importance to the child, who is unable to participate in the litigation, the choice of whether to present such evidence ought not to be left to the parties to the action, the mother, the putative father and, in this and many similar cases, the state, as a statutorily necessary party. Practice Book § 484C. The court should exercise its authority to require these genetic marker tests where the parties neglect to provide them. Certainly where the state of Connecticut is involved by virtue of its financial interest in obtaining reimbursement from putative fathers for sums paid to support their children, the additional expense that these newer techniques occasion cannot justify the failure to present such evidence at a trial.

Jurors are sometimes wiser and better informed than courts generally assume. The question asked by the jurors in this case at the commencement of their deliberations demonstrates their dissatisfaction with the traditional swearing contest method for deciding a paternity dispute in the light of common knowledge of the existence of scientific techniques of highly significant probative value for resolution of that issue. Although the trial court cannot be faulted for instructing the jurors not to speculate about something that the statute required to be excluded from evidence, the circumstances strongly suggest that the jurors felt frustrated at the lack of any helpful response to their questions and drew an unfavorable inference against the plaintiff because of the absence of the blood typing evidence about which they had inquired.

I agree, therefore, that there was a miscarriage of justice in this case that required the court to set aside the verdict. That miscarriage, however, was not the improper resolution of the credibility issue on the basis of the evidence presented to the jurors but the failure to furnish them with available scientific evidence that, as their question indicates, they deemed vital to a proper determination of the case.

Accordingly, I concur in the result.

       “[General Statutes] See. 46b-160. (Formerly Sec. 52-435a). petition BY MOTHER OR EXPECTANT MOTHER. VENUE. CONTINUANCE OF CASE. EVIDENCE. Proceedings to establish paternity of a child bom or conceived out of lawful wedlock, including one bom to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides. For trial purposes, jurors shall be selected from the judicial district in which such geographical area is located. In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action. Upon the filing of such petition, said court or any judge assigned to said court shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein to show cause, if any he has, why the prayer of such petition should not be granted. Such petition, summons and order shall be in a form approved by the judges of the superior court. In the case of a child or expectant mother being supported wholly or in part by the state, service of such petition may be made by any investigator employed by the department of human resources or the department of income maintenance. Such petition may be brought at any time prior to the child’s eighteenth birthday, provided liability for past support shall be limited to the three years next preceding the granting of any such petition. If the putative father fails to appear in court at such time and place, the court may hear the petitioner and enter such judgment and order as the facts may warrant. Such court may order continuance of such hearing; and if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child.”

       In Lavertue v. Niman, 196 Conn. 403, 407 n.6, 493 A.2d 213 (1985), we expressed some reservation regarding the validity of those cases articulating the burden-shifting rule in paternity cases and suggested that they might not reflect the law today. The defendant’s challenge, however, to the trial court’s application of the rule was not raised at trial, but arose for the first time in the plaintiffs motion to set aside the verdict. The defendant contends that by making competent evidence of constancy of accusation, General Statutes § 46b-160 relieves the plaintiff of her obligation to establish a prima facie case and impermissibly shifts the burden of proving his innocence to the defendant. He argues further that in requiring him to produce evidence other than his own testimony to prove his innocence, his own denial was rendered worthless and he was effectively deprived of his right to be heard throughout the proceedings. He urges us to review this claim under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Since we find that the plaintiff made out her prima facie case by evidence other than constancy of accusation and that the defendant’s testimony alone was insufficient to overcome it, we need not consider the constitutional ramifications of these rules.

       Practice Book § 320 provides in pertinent part: “[M]otions to set aside a verdict . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered . . . .”

       The defendant does not assert that General Statutes § 51-183b applies to this case. That statute requires that the judge in a nonjury trial of a civil action render judgment not later than 120 days from the completion date of the trial. The defendant points to § 51-183b, however, as evidence of the legislature’s concern for avoiding delay in the judicial process.

       This case is notable for its delay. The action was commenced in September, 1976. The record discloses that the case was dismissed for failure to prosecute with reasonable diligence in January, 1978, but was opened in February, 1978. Nonetheless, it did not come to trial until November 29, 1984, more than six years later. When we heard this appeal, the child was approaching his twelfth birthday.

       At oral argument, the defendant said that such inquiry had been made but was not of record.

       At oral argument, the attorney general pointed out that General Statutes § 46b-160 had been amended since the institution of this action to limit the liability for past support to the three years preceding the granting of the paternity petition.

       Some responsible scientific authorities claim that modem scientific techniques have increased the probability of excluding a mistakenly accused man as the father of a child to levels exceeding 99 percent. See Peterson, “A New Things You Should Know About Paternity Tests (But Were Afraid To Ask),” 22 Santa Clara L. Rev. 667, 671 (1982). Conversely, the probability that a man who has had intercourse with the mother during the probable period of gestation, but whom these techniques do not exclude as the father, may be determined mathematically to be correspondingly great. In Moore v. McNamara, 201 Conn. 16, 32, 513 A.2d 660 (1986), there was expert testimony that the probability of the defendant’s fatherhood ascertained through such procedures was 99.6 percent.


author: Shea, J. Callahan, J.,

text:
    State of Connecticut v. Carl Steve
    (13263)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued April 12
    decision released June 21, 1988

      Michael A. Fasano, special assistant state’s attorney, with whom were Peter D. Markle, former assistant state’s attorney, and, on the brief, John Connelly, state's attorney, Bradford J. Ward, assistant state’s attorney, and Joseph A. Geremia, Jr., for the appellant (state).

      Denise Dishongh, special public defender, with whom was Louis Avitabile, special public defender, for the appellee (defendant).
   Shea, J.

A jury found the defendant guilty of the crimes of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (2), and assault in the first degree, a violation of General Statutes § 53a-59 (a) (3). On the defendant’s appeal from the judgment of conviction, the Appellate Court determined that the trial court had erred in instructing the jury on the theory of aiding and abetting pursuant to General Statutes § 53a-8 *3 as to both the robbery and assault charges in the substitute information when the state had alleged in its bill of particulars that the defendant was being prosecuted only as a principal on these charges. State v. Steve, 11 Conn. App. 699, 529 A.2d 229 (1987). The state, after this court had granted certification, appealed from the Appellate Court’s judgment reversing the judgment of the trial court. We conclude, as did the Appellate Court, that the trial court erred in instructing the jury on accessorial liability when the state’s bill of particulars, as amplified orally after it had been filed, affirmatively indicated that the defendant was the principal in regard to both charges, and that this error was prejudicial. Accordingly, we affirm the judgment of the Appellate Court.

Although the facts that the jury could reasonably have found are set forth in State v. Steve, supra, we summarize those pertinent to the issues in this appeal. The state in a substitute information charged the defendant with the crimes of robbery in the first degree, a violation of § 53a-134 (a) (2), and of assault in the first degree, a violation of § 53a-59 (a) (3). Prior to the trial, the defendant moved for a bill of particulars, requesting that the information state: (1) the specific nature of the offense or offenses with which the defendant was charged; (2) the time, place and manner in which the offense was committed; (3) the specific acts performed by the defendant which constitute all necessary elements of the crime charged; (4) the general circumstances surrounding the alleged crime; (5) the date and time of the alleged violation as well as the section of the General Statutes -violated; and (6) the name or names and addresses of all persons the state alleges were involved in such violation.

The bill of particulars filed by the state in response to this motion alleged the following: “The defendant, Carl Steve, is charged with the crime of Robbery in the First Degree in violation of Section 53a-134 (a) (2) of the Connecticut General Statutes, in that on or about April 13,1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant, in the course of committing a larceny used physical force upon another person, to wit: Scott Doyle, for the purpose of compelling the owner of such property, Scott Doyle, to deliver up the property and to prevent or overcome resistance to the taking of the property, and the defendant was armed with a deadly weapon. The defendant, Carl Steve, is charged with the crime of Assault in the First Degree in violation of Section 53a-59 (a) (3) of the Connecticut General Statutes, in that on or about April 13, 1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant under circumstances evincing an extreme indifference to human life recklessly engaged in conduct which created a risk of death to another person, to wit: Scott Doyle, and thereby caused serious physical injury to Scott Doyle.”

After the bill of particulars had been filed, the defendant orally requested that it be clarified with respect to the allegation of reckless conduct relied upon for the charge of assault in the first degree. The state’s attorney responded that, if he were ordered to amend the bill of particulars, he would do so by saying that the defendant had “recklessly engaged in conduct, to wit: Possessing a loaded weapon and holding it to the stomach or the person of the victim, Scott Doyle . . . thereby causing physical injury by shooting Scott Doyle.” In denying the defendant’s motion, the court remarked, “[Y]ou know that the state’s allegation is that the conduct which was engaged in . . . creating a risk of death was the use of a handgun . . . [bjecause, that is pretty much alleged in the first bill of particulars. Whether the state says that or not, that is what is attempted to be proved here, and that is what you have to defend against. . . . So, it does not have to be amended. . . . The record makes it clear what the basis of the charge and bill of particulars is.”

After the state had concluded the presentation of evidence in its case-in-chief, the defendant took the stand in his own defense and testified that a second person, Jeff Manson, had actually shot the victim and taken his property and that he, the defendant, had not participated. State v. Steve, supra, 702. This testimony was corroborated in part by a second witness, who testified that she had seen the defendant and Manson together moments after the incident. She testified that Manson was carrying a handgun and bragging about robbing and shooting a “white dude.” She also testified that while Manson was talking, the defendant sat silently and made no comment. A sister of the defendant also testified that she had seen Manson in possession of the gun immediately before and after the shooting. She further testified that she had seen the defendant accompany Manson during this time.

Before closing arguments the state’s attorney advised the defendant that he would request a charge on accessorial liability for the offenses. The court initially charged the jury on the elements necessary to prove the defendant guilty of robbery and assault as a principal but later, in responding to jury requests for further instructions, charged that he would also be guilty of both offenses if he had intentionally aided another for the purpose of committing those crimes. See General Statutes § 53a-8. The defendant excepted to the charge on accessorial liability as an expansion of the bill of particulars. The jury returned a verdict finding the defendant guilty of both the assault and robbery charges. Thereafter, the defendant filed motions for a judgment of acquittal, for a new trial, and in arrest of judgment. In the motion for judgment of acquittal, the defendant claimed that the evidence presented did not permit a finding of guilt beyond a reasonable doubt of the charges contained in the substitute information. The defendant’s motions for a new trial and in arrest of judgment maintained that the court’s charge had allowed the jury to consider facts and crimes outside the scope of the bill of particulars. Id., 702-703. The court denied the defendant’s motions. Id., 703.

I

The only issue presented by this appeal is whether the Appellate Court correctly concluded that the trial court erred in instructing the jury on the theory of accessorial liability when the bill of particulars, as elucidated by the state, alleged that the defendant was the principal in regard to both the robbery and assault charges and that such error was harmful.

The state contends that the substitute information and bill of particulars, when read together, were sufficient to apprise the defendant of the possibility that he might be convicted as an accessory. It notes that “the fact that a defendant was not formally charged as an accessory [in an information or indictment] does not preclude his being so convicted.” State v. Crump, 201 Conn. 489, 493, 512 A.2d 199 (1986). The state maintains that a defendant who is charged as a principal in a crime is necessarily on notice that he may be convicted as an accessory.

The Appellate Court ‘ ‘ acknowledge)^] that a defendant may be convicted on a theory of accessory liability even where he has not been formally charged by information with such.” State v. Steve, supra, 706. It concluded, however, that the bill of particulars under the circumstances of this case limited the state to proving that the defendant committed robbery and assault in substantially the manner described, which referred only to his participation as a principal. Id., 704-705. It determined that “the court’s charge to the jury was not in substantial conformity with the facts alleged in the state’s bill of particulars,” and that this variance prejudiced the defendant in the presentation of his defense. Id., 705.

The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise. State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). A bill of particulars limits the state “to proving that the defendant has committed the offense in substantially the manner described.” State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976). In State v. Killenger, 193 Conn. 48, 52-55, 475 A.2d 276 (1984), we held that there was no material variation where the bill of particulars alleged that the accused employed a hammer in committing robbery and assault, but the evidence indicated that a flashlight was used as a weapon. We concluded that the instrument used to bludgeon the victim was of the same generic character as that specified in the bill of particulars, having the “potential character of a dangerous instrument capable of inflicting the same type of wound.” Id. It is the defendant’s burden on appeal to demonstrate that “he was in fact prejudiced in his defense on the merits” as a result of a material variance between the allegations in a bill of particulars and proof at trial, and that “substantial injustice was done to him because of the language of the state’s pleadings.” State v. Roque, supra, 156.

We conclude that the Appellate Court was correct in determining that the defendant was prejudiced in his defense as a result of a substantial variance between the allegations in the bill of particulars and the court’s instructions concerning accessorial liability. “It is clear that the presentation of his defense relied upon the state’s claim [in its bill of particulars] that the defendant was in fact the principal of each crime.” State v. Steve, supra, 705. It is significant that the state presented no evidence in its case-in-chief suggesting that the defendant had acted as an accomplice. It is probable that the defendant’s decision to testify, thus providing the evidence that furnished a basis for finding him guilty as an accomplice, was greatly influenced by his reliance upon the state’s declaration that its bill of particulars charged him as the person who had shot the victim in the course of the robbery. The state did not seek to amend its information to allege that the defendant had acted as an accomplice even after he had testified that Manson had assaulted and robbed the victim, and a second witness had corroborated in part his testimony. We do not regard the state’s notification to the defendant prior to argument of its intention to request a charge on accessorial liability as equivalent to an amendment offered seasonably before the close of evidence. Practice Book § 624. Accordingly, we need not decide whether such an amendment would have been proper in these circumstances. We conclude that the court’s instructions concerning accessorial liability were not in substantial conformity with either the allegations in the bill of particulars or the evidence in the state’s case-in-chief, and, therefore, hold that these instructions were erroneous.

II

The Appellate Court determined that the trial court’s erroneous instructions on accessorial liability as to both charges constituted a constitutional violation because due process requires that a criminal defendant be given notice of the specific charge against him and “the jury was instructed to consider a theory of liability of which the defendant had no fair notice . . . . ” State v. Steve, supra, 707-708. Accordingly, it placed the burden on the state to prove that this error was harmless beyond a reasonable doubt and also held that the state had failed to meet this burden.

The state contends that the error in the case at bar was not of constitutional significance because any variance between the state’s pleadings and the court’s instructions on accessorial liability did not violate the defendant’s due process right to notice of the specific charge against him, and that, therefore, the defendant has the burden of demonstrating that it is more probable than not that the erroneous action of the court affected the result. See State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). It argues that the defendant has failed to demonstrate that the error was harmful.

We need not decide whether the error was of constitutional significance. Even if the burden were on the defendant to prove harmfulness, we would conclude that the court’s error more likely than not affected the result. The jury was never polled as to the basis for its verdict, and, therefore, it is uncertain whether the defendant was convicted as the principal offender, or as an accessory. State v. Steve, supra, 708. There was substantial evidence, however, suggesting that Manson was the principal in the robbery and assault. The defendant testified that Manson had committed the robbery and assault. Id., 702. This testimony was corroborated in part by a witness who had seen Manson carrying a gun and bragging about robbing and shooting a “white dude.” Id. That witness also testified that while Manson was talking, the defendant sat silently and made no comment. A sister of the defendant also testified that she had seen Manson in possession of the gun immediately before and after the shooting. She further testified that she had seen the defendant accompany Manson during this time. There is a significant likelihood that the defendant was convicted as a result of the court’s erroneous instructions on accessorial liability. Accordingly, we conclude that this erroneous instruction was likely to have affected the result of this case, and hold, therefore, that the error was harmful.

We therefore affirm the judgment of the Appellate Court.

In this opinion Peters, C. J., and Healey, J., concurred.

Callahan, J.,

with whom Co vello, J., joins, dissenting. I dissent. The majority opinion fails to mention that the bill of particulars and its oral amplification were based on the defendant’s sworn statement. In his statement the defendant admitted shooting Scott Doyle and otherwise confessed to actions that could reasonably have led to his conviction as a principal in the robbery and assault of the victim.*

The state’s request for an instruction allowing the jury to convict the defendant of the crimes charged under the alternate theory of accessorial liability was grounded on the defendant’s trial testimony. During his testimony the defendant denied that he shot the victim but admitted that he was there and shared in the proceeds of the robbery. It has not been questioned that the defendant’s testimony, coupled with other evidence adduced at the trial, might reasonably have led to his conviction as an accessory under General Statutes § 53a-8. See State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985); State v. Rothenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985); Lovett v. State, 516 A.2d 455, 466 (Del. 1986), cert. denied, 481 U.S. 1018, 107 S. Ct. 1898, 95 L. Ed. 2d 504 (1987). We never get to that, however, because the majority concludes that the defendant was somehow “prejudiced” by the submission of the alternate theory of accessorial criminal liability to the jury. The “prejudice” apparently occurring because the evidence on which the accessorial liability instruction was based deviated from the bill of particulars.

It is, first of all, difficult for me to fathom what the state could or should have done other than frame the bill of particulars in accordance with the defendant’s confession. Also, I find it impossible to comprehend how the defendant was surprised or prejudiced in his defense by the submission to the jury of an alternate theory of criminal liability based on his own testimony. See State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983). The state did present evidence in its case-in-chief to prove that the crimes alleged were committed in substantially the manner charged in the substitute information and bill of particulars. It was the defendant in his testimony who proffered a role for himself in those crimes that was different from that alleged by the state. It appears a bit illogical that the defendant can, himself, offer incriminating evidence at variance with the bill of particulars and then complain that he was prejudiced by that variance. While the state may be limited to proving that the offenses alleged were committed in substantially the manner described in the bill of particulars, I know of no rule that requires incriminating evidence from the defendant to be ignored by the state or the trial court. In short, it was the evidence offered by the accused, not that offered by the state, that occasioned an accessory charge under § 53a-8 and the trial court did not err in giving it. Johnson v. State, 518 N.E.2d 1073, 1077-78 (Ind. 1988); Hoskins v. State, 441 N.E.2d 419, 424-25 (Ind. 1982).

Further, until now, the established law in this state was that a charge on accessorial liability required no notice and that “a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Harris, 198 Conn. 158, 502 A.2d 880 (1985); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979); State v. Parham, 174 Conn. 500, 508, 391 A.2d 148 (1978).” State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); see also State v. Crump, 201 Conn. 489, 493, 495, 518 A.2d 378 (1986); State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981). Also, “the propriety of a charge on ‘aiding and abetting’ is predicated on the basis of the sufficiency of the evidence heard during the course of the trial, not on the mention of such charges in pretrial documents. See State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971); State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 (1923); State v. Burns, 82 Conn. 213, 218-19, 72 A. 1083 (1909); State v. Hamlin, 47 Conn. 95, 120 (1879).” State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979).

Apparently this is no longer the law. According to the majority, even a defendant who confessed to being a principal, repudiated his confession at trial, and testified to possible accessorial liability is somehow surprised and prejudiced and entitled to a new trial because the jury was instructed as to that possible alternate theory of guilt under General Statutes § 53a-8. That is an incongruous result. I would reverse the Appellate Court.

       “[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] Sec. 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.”

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The dissenting opinion concedes that “the state may be limited to proving that the offenses alleged were committed in substantially the manner described in the bill of particulars,” but concludes, nevertheless, that no rule of law “requires incriminating evidence from the defendant to be ignored by the state or the trial court.” Where the incriminating evidence from the defendant is wholly at variance from the manner in which the bill of particulars specifies the crime to have been committed, as here, we are aware of no case holding that a defendant may be convicted of the crime charged on the basis of that evidence simply because its source was his own testimony or that of his witnesses. The basic principle that the state must prove the crime in the manner alleged in the bill of particulars precludes a conviction based upon evidence that it was committed in a substantially different manner regardless of the source of that evidence. The cases cited in the dissenting opinion in support of its novel thesis, Johnson v. State, 518 N.E.2d 1073, 1077-78 (Ind. 1988), and Haskins v. State, 441 N.E.2d 419, 424-25 (Ind. 1982), do not involve a charging document that has been narrowed in scope by a bill of particulars, but rely upon the well established principle that under an information or indictment alleging the commission of a crime, the scope of which has not been limited by a bill of particulars, the defendant may be convicted as either a principal or an accessory. State v. Crump, 201 Conn. 489, 493, 512 A.2d 199 (1981); State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981). We note that some courts have refused requests for bills of particulars requiring the state to specify whether a defendant is charged as a principal or as an accessory upon the ground that the defendant is not entitled to such a disclosure of the state’s theory of the case. United States v. Mannino, 480 F. Sup. 1182, 1185 (S.D.N.Y. 1979); State v. Willis, 322 So. 2d 169, 171 (La. 1975). “One of the main policy reasons for restricting [the use of a bill of particulars] is to avoid ‘freezing’ the Government’s evidence in advance of trial. Such freezing comes about because of the rule that requires proof at trial to conform to the particulars furnished in a bill. United States v. Neff, 212 F.2d 297, 309 (C.A.3. 1954); United States v. Allied Asphalt Paving Co., 451 F. Supp. 804, 812 (N.D. Ill. 1978). Thus, the court is required to balance restricting the Government’s proof against protecting defendants from surprise.” United States v. Boffa, 513 F. Sup. 444, 485 (D. Del. 1980).

       The dissenting opinion does not address the question of whether the defendant may have been prejudiced in his defense by presenting evidence furnishing a basis for his conviction as an accessory in reliance upon the state’s oral amendment of its bill of particulars to the effect that the defendant had held the gun and shot the victim and the court’s assurance that “the conduct which was engaged in . . . was the use of a handgun . . . and that is what you have to defend against.”

       The following statement was given by the defendant on June 13,1985, some four months prior to trial:
      “That on the month of April 1985 at about 4 P.M., Jason Day, this dude I only know by the name of Jeff, and I were standing on the comer across the street from the Blue Note Cafe which is on Walnut Street, in Waterbury, Ct. That while standing here talking, this dude I know by the name of Steward Damin came up to us, and said, this white dude who had a lot of money wanted to buy some weed, and this is when Jeff said, lets get him. Then I saw this white dude was walking down Walnut Street in the middle of the road. That this white dude came right up to us, and said, do you have any weed for sale, and this is when Jeff said, that he had Zudy for sale, which is a type of weed which has embalming fluid in it. That the white dude said, he didn’t want any, and that he was going to cop some ounces. Then he walked away, and I saw him walk across the street to the second building from the Blue Note, and I saw this Black dude on the second floor porch, and I heard him yell to the white dude to come around the back, and the white dude walked around the back of this building. That at this time this dude Jeff, and I ran over to the white dude, and Jeff handed me the gun he had which is 22. Then Jeff told the white dude to hand over the money, and the weed. . . . And the white dude said, no, and as he said this he swung at us, and this is when I shot him in the stomach with the gun I had.
      “I also like to state that when Jeff handed me the gun it was cocked, and when I shot this white dude I didn’t really mean to do it.
      “I also like to state that after I shot the white dude Jeff went into the white dude’s back pocket, and took his wallet out, and took the money out of the wallet, and threw the wallet on the ground. That after this Jeff took the gun from me, handed me some money which was about $70.00 or $80.00 dollars, and we both ran off, and as we were running Jason Day ran with us, but Jason Day didn’t have anything to do with it.
      “I also like to state that this dude Jeff lives on the second floor in a yellow house on Hazel Street, in Wtby, Ct.
      “I also like to state that the voluntary statement is the truth to the best of my knowledge. Nothing to follow.
      “S/Carl Edward Steve”

         E.g., “And, I see Jeff go in his pocket and pull out his wallet, took out the money, ran up to me and gave me some money. And, I ran, and the other boy ran down the street.”