author: Arthur H. Healey, J.

text:
    Barbara Barnard v. David C. Barnard
    (13822)
    Healey, Shea, Callahan, Covello and Hull, Js.

      Argued December 8, 1989
    decision released February 27, 1990

      Gaetano Ferro, with whom, on the brief, was Gina Pasquini, for the appellant (defendant).

      Ernest N. Abate, for the appellee (plaintiff).
   Arthur H. Healey, J.

On February 4, 1986, the parties’ marriage was dissolved by a judgment that incorporated the provisions of a twenty-one page separation agreement (agreement) of the parties, also dated February 4, 1986. On December 1, 1988, the defendant husband filed a motion for interpretation or clarification of that agreement maintaining that the parties were unable to agree upon the interpretation of Article III of that agreement. That article is captioned “Alimony and Support and Education.” The trial court, Nigro, J., held a hearing on this motion. The defendant has appealed from the trial court’s interpretation of Article III. Pursuant to Practice Book § 4023, we transferred the case to this court.

Initially, it is useful to set out certain background gleaned from the record. At the time of the dissolution, the parties had two children: Amy, born July 25, 1967, and Brett, bom April 2,1971. At that time, Amy was in her freshman year at Tufts University and Brett was attending a private secondary school. At the time of the hearing on the defendant’s motion on January 23,1989, Amy was a senior at Tufts University and she planned to go to law school in the fall of 1989. At that time, Brett was a senior at the Loomis-Chaffee School in Windsor and was going to college in the fall of 1989. The plaintiff wife had remarried on June 20, 1987, approximately one year and four months after the date of the dissolution.

The agreement encompasses eighteen “Articles,” some of which are divided into numbered paragraphs. Article III, upon which the parties have focused, is divided into ten numbered paragraphs, some of which, in turn, are further subdivided into subparagraphs. As will be seen below, the defendant’s obligations concerning the education and support of the Barnard children, that are at issue here, varied depending upon whether he was paying alimony. Paragraphs 3.4 through 3.8 set out those obligations when he was paying alimony. Paragraph 3.10, however, concerned the defendant’s obligations to pay for such education and support in the event his obligation to pay alimony terminated for any reason, except his death, within five years of the date of the dissolution decree.

Paragraph 3.4 of Article III provides that the plaintiff must pay the “total cost of the private preparatory school education” of her son, Brett, as “total cost” was defined in that paragraph. It also provides that so long as the defendant was paying alimony to the plaintiff, she acknowledged that she would be paying the entire support obligation for Brett. Paragraph 3.5 provides, inter alia, that the defendant was “to continue to pay the total cost of the private college education of Amy [his daughter] ... at Tufts University through her freshman year, and the total cost of her college education, not to exceed such total cost at the University of Connecticut, during her sophomore, junior and senior years. Said obligation shall continue until Amy receives her degree from college but in no event beyond June 30, 1990. * . . .” The asterisk refers to a footnote to paragraph 3.5 and that footnote has been the subject of con-Aiding interpretations by the parties. This footnote provides: “In the event the wife is remarried and there are two children in college at the same time, the husband agrees that he will contribute to the educational expense at a total cost for each child not to exceed such total cost at the University of Connecticut.”

Paragraph 3.6 provides that the “Husband shall pay the total cost of the college education of Brett . . . not to exceed such total cost at the University of Connecticut during his junior and senior years. Said obligation shall continue until Brett receives his degree from college but in no event beyond June 30, 1994. . . .” Paragraph 3.7 provides that the “Husband further agrees to pay for the post graduate education of said children in accordance with his financial abilities to do so at the time of their election to obtain such education. In no event shall such obligation extend beyond three (3) years after their graduation from an undergraduate school.”

Paragraph 3.8 provides: “The Husband’s obligation to provide education to his children as limited above is predicated upon his present disposable income. In the event that the same shall increase substantially because of the remarriage of the Wife or in a manner unforeseen at the time of entering this agreement, then in that event the obligation of the parties to pay for expenses of education as set forth in paragraphs 3.4, 3.5, 3.6 and 3.7 shall be reviewed to be brought into line with the Husband’s ability to pay.”

Paragraph 3.9, which concerns redress to the Superior Court, provides: “In the event that the parties cannot agree upon the Husband’s obligation or abilities under this Article III, either party may petition the Superior Court, Judicial District of Stamford/Norwalk, for a determination of the same, and this agreement shall be deemed to have been amended in accordance with and to the extent of any finding and order of said Court.”

Paragraph 3.10, which is the final paragraph set out under Article III, is, in turn, further subdivided into six subparagraphs. Its introductory paragraph states the following: “In the event that the Husband’s obligation to pay alimony to the Wife shall terminate for any reason except for his death, within five (5) years from the date of the entry of [this] decree, the Husband’s obligation to provide education for his children shall be amended as follows . . . .”

The trial court, in its memorandum, pointed out that the defendant had specifically asked it to determine the extent to which the agreement had fixed his obligation to pay for the postsecondary school education of Amy and Brett. The trial court noted that the footnote to paragraph 3.5 and its effect was at the center of the parties’ dispute and particularly the meaning of the term “college” in that footnote. It interpreted the term “college” in the footnote to paragraph 3.5 to mean “four years of undergraduate study,” the “standard four-year undergraduate course” and not postgraduate school. In so doing, the trial court rejected the defendant’s claim that “college” included “any education after secondary school” including “law school or any other post-undergraduate college education.” It supported that conclusion by pointing to other paragraphs of Article III which used such terms as “post graduate education” as in paragraph 3.7. The court referred to paragraph 3.5, determining that the college education in this paragraph involving Amy clearly was intended to mean four years of undergraduate study, to paragraph 3.10 which the trial court said “carefully distinguish[es]” between “private ‘college’ education” and “post graduate education” and to paragraph 3.6 where it maintained that “college” education, as applied to Brett, could only be read as meaning the four undergraduate years ending with the senior year.

In agreeing with the plaintiff that “college” in the footnote to paragraph 3.5 meant “college” in the four-year undergraduate sense, it also accepted her claim that the defendant’s obligations, by virtue of her remarriage, were fixed by paragraph 3.10. In reaching this latter conclusion, it rejected the defendant’s claim that paragraph 3.10 must be interpreted to incorporate the footnote to paragraph 3.5, including specifically his claim as to the interpretation of “college” in that footnote to mean any education after secondary education including postgraduate education or law school. The trial court noted that under paragraph 3.10, the defendant assumed “a significantly larger role in meeting the educational costs of his children” should his alimony obligation terminate, as it did. It also determined that paragraph 3.10 did not condition the defendant’s obligation upon his ability to pay. It further decided that paragraph 3.9 did not authorize it to modify, in accordance with the defendant’s ability to pay, as he contended, his obligations set forth in paragraph 3.10.

In his appeal, the defendant claims that the trial court erred in concluding that his obligation to pay for the postmajority education of his children was not subject to modification and, therefore, further erred in refusing to consider his financial ability to pay for the post-majority education of the Barnard children.

The defendant claims that his financial ability to pay for the postmajority education of the Barnard children is a criterion that pervades Article III of the agreement and for that he refers to paragraphs 3.5 through 3.8 of that article. He contends that upon the plaintiff’s remarriage, his obligations to pay for the education and support of the Barnard children are not controlled by paragraph 3.10 but are limited as set out in the footnote to paragraph 3.5. In addition, he argues that paragraph 3.9 explicitly contemplates and allows recourse to the Superior Court “[i]n the event . . . the parties cannot agree upon [his] obligation or abilities under . . . Article III. . . .” He maintains, nevertheless, that the trial court ignored paragraph 3.9 when it concluded that paragraph 3.10 did not condition his obligation thereunder upon his ability to pay. Thus, he argues, the trial court gave no effect to paragraph 3.9 and rendered it a nullity. By failing to give the required consideration and effect to paragraph 3.9, he contends that the trial court erred in not considering the agreement as a whole and not giving efficacy to each part where appropriate.

In addition, the defendant also claims that the trial court erred in concluding that his obligation to pay for postmajority education of the Barnard children was not subject to modification. He contends that the trial court had jurisdiction to modify payment of educational expenses after a child attains the age of eighteen where the dissolution judgment incorporates an agreement to that effect. The defendant points out that paragraph 3.10 contains varying time intervals at which his obligation under paragraph 3.10 was “triggered,” i.e., depending upon whether his obligation to pay alimony terminated. He reasons that, because that obligation could have been triggered “within two (2) years” of the judgment incorporating this agreement, as it was on the plaintiff’s remarriage when Brett had not yet attained the age of seventeen, the parties could not have intended that the defendant’s financial obligation to Brett should have been nonmodifiable when Brett had not reached his majority. The defendant, therefore, maintains that because paragraph 3.10 contains premajority, as well as postmajority, financial undertakings by him, it would be “ludicrous” to think that the parties and the court that entered the dissolution judgment “silently” intended Article III to be modifiable before the children were eighteen and nonmodifiable thereafter. (Emphasis added.) This, he concludes, is what the trial court did “despite any language [suggesting] such a construction.” He urges, therefore, that we set aside the orders of the trial court and remand the matter for further proceedings.

In the present case, the agreement of the parties was ordered incorporated by reference into the dissolution decree. A judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract. See Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). The construction of such an agreement by the trial court is subject to our review under the clearly erroneous standard. Albrecht v. Albrecht, supra; see Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985).

“A contract is to be construed as a whole and all relevant provisions will be considered together.” Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976); see Blatt v. Star Paper Co., 160 Conn. 193, 200, 276 A.2d 786 (1970); 17 Am Jur. 2d, Contracts § 258. In giving meaning to the terms of a contract, we have said that “ ‘a contract must be construed to effectuate the intent of the contracting parties.’ ” Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979); Ginsberg v. Mascia, 149 Conn. 502, 506, 182 A.2d 4 (1962). In ascertaining intent, “we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.” Connecticut Co. v. Division 425, 147 Conn. 608, 616, 164 A.2d 413 (1960); Marcus v. Marcus, 175 Conn. 138, 141, 394 A.2d 727 (1978). “The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427 (1936); Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., supra; Powel v. Burke, 178 Conn. 384, 387, 423 A.2d 97 (1979). This is so where the parties have their agreement in writing. Sturman v. Socha, supra; Robert Lawrence Associates, Inc. v. DelVecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Sturman v. Socha, supra, 10; Marcus v. Marcus, supra, 141-42; Sturtevant v. Sturtevant, 146 Conn. 644, 647-48, 153 A.2d 828 (1959). Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. “ ‘A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings. Downs v. National Casualty Co., 146 Conn. 490, 494, 152 A.2d 316 [1959].’ ” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973); see Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980). With these principles in mind, we turn to the trial court’s resolution of the meaning of “college” in the footnote to paragraph 3.5 of Article III of the agreement. We find no error in the trial court’s ruling on that issue.

At the outset, we note that paragraph 3.5, to which the footnote is appended, contains the term “college.” Further, we note that paragraph 3.5 itself provides that the defendant “shall continue to pay the total cost of the private college education of Amy ... at Tufts . . . through her freshman year, and the total cost of her college education ... at the University of Connecticut during her sophomore, junior and senior years. Said obligation shall continue until Amy receives her degree from college but in no event beyond June 30, 1990.*” (Emphasis added.) The references to “college” in paragraph 3.5 are clearly to a standard four year college education. In addition, paragraph 3.6 provides that “the Husband shall pay the total cost of the college education of Brett . . . not to exceed such total cost at the University of Connecticut during his junior and senior years. Said obligation shall continue until Brett receives his degree from college but in no event beyond June 30,1994. ...” (Emphasis added.) In this context, the terms “college” and “college education” in paragraph 3.6 again clearly apply to a standard four year college education. That the word “college” means just that finds further support in paragraph 3.7 which provides that “[t]he Husband further agrees to pay for the post graduate education of said children in accordance with his financial abilities to do so at the time of their election to obtain such education. In no event shall such obligation continue beyond three (3) years after their graduation from an undergraduate school. ” (Emphasis added.) This “further” undertaking speaks not to “college,” as that term is commonly understood, but, to use the words of the parties themselves, to “post graduate education,” that which comes “after their graduation from an undergraduate school.”

The last paragraph of Article III is 3.10 and it is particularly significant on the intent of the parties as to the meaning of “college” in the footnote to paragraph 3.5 in the context of the defendant’s claim that his obligation to his children, in the event of the remarriage of the plaintiff, is not controlled by paragraph 3.10 but is limited as set out in this footnote. This paragraph expresses the extent and nature of the defendant’s obligations in the event that his obligation to pay alimony terminates for any reason, except his death, within five years from the date of the entry of the dissolution decree. In doing so, it sets out in detail, with reference to each child, what is to occur in the event the defendant’s obligation ceases within two years, within three years or within four years. In doing so, it refers, as to Brett, to his “private preparatory school education,” “his private college education for four (4) years” and “his post graduate education.” Further, as to Amy, it refers to her “private college eduation” and her “post graduate education.” It is apparent that the parties employed the term “post graduate education” to mean that program of education that followed “college” for each of their children.

The meaning of the term “college,” as used in Article III, as intended by the parties, is clear. We agree with the trial court’s observation that to read the term “college,” as used in the footnote to paragraph 3.5, as the defendant claims, “is a tortured reading of the term in light of its usage in other sections of the agreement.” See Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980); Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., supra, 599; Downs v. National Casualty Co., supra, 494. The trial court’s ruling as to the meaning of “college” in the footnote to paragraph 3.5 was not clearly erroneous.

The defendant also claims that the trial court erred in concluding that his obligation to pay for the post-majority education of the Barnard children was not subject to modification. As indicated, the trial court found that the provisions of paragraph 3.10 were controlling over paragraph 3.9 and that paragraph 3.10 did not condition the defendant’s obligations thereunder upon his ability to pay. Moreover, the trial court did not read paragraph 3.9 as authorizing it to modify the obligations in paragraph 3.10 to conform to the defendant’s “claimed ability” to pay. We find error in this ruling of the trial court.

“The jurisdiction of the Superior Court as it relates to postmajority child support derives solely from [General Statutes] § 46b-66. See Kennedy v. Kennedy, [177 Conn. 47, 49-50, 411 A.2d 25 (1979)].” Albrecht v. Albrecht, supra, 156. Such jurisdiction is limited to the power to approve and incorporate written agreements concerning such support into its orders or decrees and to enforce such written agreements. Cattaneo v. Cattaneo, 19 Conn. App. 161, 164, 561 A.2d 967 (1989); see Arseniadis v. Arseniadis, 2 Conn. App. 239, 245, 477 A.2d 152 (1984). Agreements between parties regarding the postmajority education of children are required to be in writing. General Statutes § 46b-66; Albrecht v. Albrecht, supra, 150-51; Arseniadis v. Arseniadis, supra, 244. Once the provisions of a separation agreement, including provisions for the post-majority education of children, are incorporated into the dissolution judgment, they can be modified by court order only if the agreement so incorporated does not preclude modification. See General Statutes § 46b-86; Albrecht v. Albrecht, supra. General Statutes § 46b-86 (a) provides in part that “[ujnless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be . . . modified by a showing of a substantial change in the circumstances of either party.”

We must now determine whether the agreement of the parties, incorporated in the judgment, precludes modification. We conclude that it does not. The plaintiffs claim that paragraph 3.10 of Article III controls over paragraph 3.9 is rejected. First, she maintains that paragraph 3.9 only applies to those paragraphs of Article III that precede paragraph 3.9, specifically paragraph 3.5, paragraph 3.6, paragraph 3.7 and paragraph 3.8, as it is those paragraphs, she contends, that allow for changes in the defendant’s payment obligations and it is only as to those paragraphs that paragraph 3.9 allows either party to petition the court for a determination of the defendant’s ability to pay. The plaintiff also argues that paragraph 3.9 has no effect on paragraph 3.10 for the following reasons: (1) paragraph 3.10 establishes the defendant’s obligations to pay for the education of the children after the plaintiff’s remarriage; (2) no part of paragraph 3.10 imposes any condition upon his obligations involving his ability to pay; and (3) paragraph 3.10 follows paragraph 3.9 in Article III.

The circumstances of the placement of paragraphs 3.9 and 3.10 is, of course, not controlling. Intent concerning modification is to be gathered from all of Article III without regard to the order in which its component parts are placed. See Prescott v. Betts, 81 Fla. 538, 543, 88 So. 385 (1921). In addition, the parties clearly intended that the provisions of paragraph 3.9 apply to all of Article III, as it plainly provided in its introductory language: “In the event that the parties cannot agree upon the Husband’s obligations or abilities under this Article III, either party may petition the Superior Court . . . . ” The words used by the parties “ ‘must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract.’ Beach v. Beach, 141 Conn. 583, 589, 107 A.2d 629 [1954].” Sturtevant v. Sturtevant, supra; see Marcus v. Marcus, supra, 141-42. This can easily be done in the present case. It is correct that paragraph 3.10 contains no language that imposes any condition upon the defendant’s ability to pay or even expressly mentions his ability to pay. It is clear, however, that simply because the plaintiff has remarried and the defendant is thereby relieved of making further alimony payments he will always, for as long as required to do so by the agreement, nevertheless, be financially obligated to meet the costs of the education of the Barnard children. If the parties intended to make paragraph 3.9 inapplicable to paragraph 3.10, the agreement should have so stated; it did not, and, hence, paragraph 3.10, as well as the balance of Article III, is subject to paragraph 3.9. Where parties have their agreement in writing “ ‘their intention is to be determined from its language and not on the basis of any intention either may have secretly entertained.’ ” Sturman v. Socha, supra, 10. Accepting the plaintiff’s claim here would render the plain language of paragraph 3.9 meaningless as to paragraph 3.10. “Parties generally do not insert meaningless provisions in their agreements and therefore every provision must be given effect if reasonably possible.” Hatcho Corporation v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985). Paragraph 3.9 is not clearly meaningless as it relates to paragraph 3.10. Therefore, the defendant’s obligations under paragraph 3.10 are subject to modification and the court erred in concluding otherwise.

It was, therefore, error for the trial court to conclude that the defendant’s obligations or abilities to pay post-majority education costs for the Barnard children under paragraph 3.10 were not subject to modification under the dissolution decree.

There is error, the judgment of the trial court is set aside and the matter is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       At the hearing, the trial court, Nigro, J., inquired whether the parties wished to offer any evidence. The defendant indicated that he wished to do so. The plaintiff objected. No evidence was taken.

       The plaintiff’s brief filed in this court states that Amy is now attending Georgetown University School of Law as a first year student and that Brett is a freshman at Boston University.

       Article III provides in full: “alimony and support and education
      “3.1 During the lifetime of the Husband and until the death or remarriage of the Wife or until ten (10) years from the date of the entry of a final decree of dissolution, whichever shall first occur, subject to the terms of this entire agreement, the Husband shall pay to the Wife the sum of THIRTY THREE THOUSAND SIX HUNDRED DOLLARS ($33,600.00) per year as alimony which shall be considered periodic payments intended to be included in the income of the Wife within the meaning and intent of the Internal Revenue Code and deductible from the Husband’s income pursuant to the provisions of the Code and which shall be payable in 12 installments which shall cumulatively average $2,800 per month. During those months of the year when Social Security is deducted from the Husband’s salai-y, the payment shall be less than $2,800/month and when Social Security is no longer deducted from the Husband’s salary, then the payment shall be in excess of $2,800/month but in no event shall the amount-paid to the Wife be less than $2,400/month. Said payments to commence upon the final decree of dissolution and shall continue for six years from said date. Seventy-three months from the date that said payments commence, and ending 10 years from the date that they commence, Husband shall pay the Wife the sum of $21,600/annum in 12 monthly installments which are alimony adjusted for Social Security as above provided.
      “3.2 The Husband shall quit-claim to the Wife all of his right, title and interest in and to their residence located at 62 Old Branchville Road, Ridgefield, Connecticut, subject only to two mortgages encumbering said premises, current taxes and other encumbrances against said premise existing as of the date of acquisition thereof by the parties. The Husband acknowledges that he has no interest in Palmas del Mar and confirms the Wife’s title thereto.
      “3.3 The Wife shall pay the Husband the sum of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500.00) within two (2) weeks of the entry of said decree and the sum of TWELVE THOU SAND FIVE HUNDRED DOLLARS ($12,500.00) together with interest thereon at the rate of 10% per annum, on June 30,1989 or sooner upon the sale of the premises or remarriage of the Wife.
      “3.4 The Wife shall pay the total cost of the private preparatory school education of Brett David Barnard should he attend the same. The term ‘total cost’ as used in this agreement shall include but shall not be limited to tuition, room, board, books, equipment, clothes, transportation, health care and allowances. The Wife further agrees she will pay for allowances and other costs of support of Brett while he is not in school.
      “3.4 (a) So long as the Husband is paying alimony to the Wife, the Wife acknowledges that she will be paying the entire support obligation for the minor son, BRETT.
      “3.5 The Husband shall continue to pay the total cost of the private college education of Amy Larkin Barnard at Tufts University through her freshman year, and the total cost of her college education, not to exceed such total cost at the University of Connecticut during her sophomore, junior and senior years. Said obligation shall continue until Amy receives her degree from college but in no event beyond June 30,1990.* Husband shall furnish to Amy an allowance during the period of time she is in full time attendance at school. The amount of such allowance at such time shall be determined by the Husband and daughter. The criteria for said allowance shall be the daughter’s reasonable needs and the husband’s ability to pay said allowance.
      “3.6 The Husband shall pay the total cost of the college education of Brett David Barnard, not to exceed such total cost at the University of Connecticut during his junior and senior years. Said obligation shall continue until Brett receives his degree from college but in no event beyond June 30,1994. Husband shall furnish to Brett an allowance during the period of time he is in full time attendance at school only. The amount of such allowance shall be determined by the Husband and son. The criteria for said allowance shall be the son’s reasonable needs and the husband’s ability to pay said allowance.
      “3.7 The Husband further agrees to pay for the post graduate education of said children in accordance with his financial abilities to do so at the time of their election to obtain such education. In no event shall such obligation extend beyond three (3) years after their graduation from an undergraduate school.
      “3.8 The Husband’s obligation to provide education to his children as limited above is predicated upon his present disposable income. In the event that the same shall increase substantially because of the remarriage of the Wife or in a manner unforeseen at the time of entering this agreement, then in that event the obligation of the parties to pay for expenses of education as set forth in paragraphs 3.4, 3.5, 3.6 and 3.7 shall be reviewed to be brought into line with the Husband’s ability to pay.
      “* In the event the wife is remarried and there are two children in college at the same time, the husband agrees that he will contribute to the educational expense at a total cost for each child not to exceed such total cost at the University of Connecticut.
      “3.9 In the event that the parties cannot agree upon the Husband’s obligation or abilities under this Article III, either party may petition the Superior Court, Judicial District of Stamford/Norwalk, for a determination of the same, and this agreement shall be deemed to have been amended in accordance with and to the extent of any finding and order of said Court.
      “3.10 In the event that the Husband’s obligation to pay alimony to the Wife shall terminate for any reason except for his death, within five (5) years from the date of the entry of said decree, the Husband’s obligation to provide education for his children shall be amended as follows:
      “If within two (2) years, the Husband shall pay the total cost of the said private preparatory school education of Brett, the total cost of his private college education for four (4) years, provided said total cost does not exceed that of such education at Tufts University or at any ‘Ivy League’ college, and the cost of his support or maintenance, including, but not limited to, food, housing, clothes, transportation, health care and allowances during the period of each year when Brett shall be a fulltime student but shall not be in attendance at said school or college and the total cost of his post gradu-

        ste education, but not beyond four (4) years after his graduation from college and in no event beyond June 30, 1999.
      “In addition the Husband shall pay the total cost of the private college education of Amy Larkin Barnard at Tufts University or similar private college, should she elect to attend the same, and the total cost of her post graduate education, but not beyond four (4) years after her graduation from college and in no event beyond June 30, 1995.
      “If within three (3) years, the Husband shall pay all of the education costs provided for by reason of termination of alimony within two (2) years except that his obligation to pay for a post graduate education for Brett shall be limited to two (2) years and shall in no event continue beyond June 30,1997.
      “If within four (4) years the Husband shall pay all of the education costs provided for by reason of termination of alimony within three (3) years except that he shall have no obligation to pay for Brett’s post graduate education and his obligation to provide him with an education shall in no event continue beyond June 30, 1995.
      “If within five (5) years the Husband shall pay all of the education costs provided for by reason of termination of alimony within four (4) years except that his obligation to pay for a post graduate education for Amy shall be limited to two (2) years and shall in no event continue beyond June 30,1993.”

       This paragraph specifically provided: “The term ‘total cost’ as used in this agreement shall include but shall not be limited to tuition, room, board, books, equipment, clothes, transportation, health care and allowances.” (Emphasis added.)

        In In re Kelly’s Estate, 285 N.Y. 139, 141-42, 33 N.E.2d 62 (1941), Chief Judge Irving Lehman had occasion to construe the term “college” in an agreement in which the decedent had agreed to make certain monthly payments so long as his son “shall remain in college.” He said: “The word ‘college’ is not a word of art which, by common understanding, has acquired a definite unchanging significance in the field of education. Its meaning varies with its context. Though at times it is used to denote any institution of higher learning, including institutions for professional or post-graduate study, it is frequently used, perhaps I should say ordinarily used, in this country, to denote, an ‘undergraduate’ school for instruction in liberal arts having a course of study commonly requiring four years for completion and leading to a bachelor’s degree.” (Emphasis added.) Id.
      In Hacker v. Hacker, 137 Misc. 2d 819, 822, 522 N.Y.S.2d 768 (1987), the court, after quoting Chief Judge Lehman’s definition in In re Kelley’s Estate, said: “It does not appear that the common definition of the term ‘college’ has changed much since Judge Lehman spoke for the Court of Appeals in 1941.”
      As a general matter, the New Jersey Supreme Court adopted the definition of “college” as limiting its meaning to undergraduate study leading to a bachelor’s degree, finding that to be its meaning in customary usage. Epstein v. Kuvin, 25 N.J. Super. 210, 213, 95 A.2d 753 (1953); see also Brown v. Brown, 327 Pa. Super. 45, 51, 474 A.2d 1168 (1984).

       General Statutes § 46b-66, entitled “Review of agreements; incorporation into decree,” provides: “In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”

       Paragraph 10.1 does not require a different conclusion. That paragraph provides: “The termination date of the Husband’s obligation for the payment of alimony, which may occur upon the Husband’s death, upon the Wife’s death, or upon her remarriage or cohabitation, or ten years from the date of the decree, whichever event shall first occur, shall not be modified by either parties nor shall any decree rendered dissolving the marriage of the parties permit a modification of this agreement, as provided in Section [46b-86] of the General Statutes of Connecticut. Each of the parties shall join in representing to the Court that is is an integral part of their agreement that the provisions relating to precluding a modification are essential to the disposition of this matter and shall jointly request that such decree contain the prohibition against modification as provided herein.”
      This paragraph is consistent with our determination that paragraph 3.9 controls paragraph 3.10 as well as the remainder of Article III. It is well to note that the question before us is not that of a modification, but, rather, it involves the construction and interpretation of the original written agreement of the parties as that was incorporated in the dissolution decree. General Statutes § 46b-86 (a) proscribes modification “[ujnless and to the extent that the decree precludes modification . . . . ” This decree, by virtue of our construction, does not preclude modification. The circumstance that paragraph 10.1 stands alone as a separate article of the agreement does not require that its “general” sweep control over the very specific language of paragraph 3.9 which expressly provides for the event “that [the parties] cannot agree upon the Husband’s obligations or abilities under this Article III , . . . ” The parties obviously contemplated that such an event might possibly occur and they provided for it in the agreement. To suggest, as the plaintiff does in her one brief reference to paragraph 10.1, that paragraph 10.1 bars modification would read paragraph 3.9 out of the agreement, thus making it meaningless. See Hatcho Corporation v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985). Our determination here is consistent with the view that a contract is to be construed as what may be assumed to have been the understanding and intention of the parties and that intention is to be determined from the language used, according to the situation of the parties and the circumstances of the transaction. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976).
      We also note that the trial court’s memorandum of decision does not refer to paragraph 10.1 nor is there any reference to paragraph 10.1 in the briefs filed in the trial court by counsel.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. William T. Thomas
    (13593)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued January 4
    decision released March 6, 1990

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

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was charged in a substitute information with murder in violation of General Statutes § 53a-54a. A jury found him guilty of the crime charged and the trial court subsequently sentenced him to a term of imprisonment of fifty-five years, suspended after forty-five years, and three years probation.

The defendant does not challenge the sufficiency of the evidence elicited to convict him. He claims, rather, that the trial court committed reversible error in its charge to the jury. He argues that the court erroneously instructed the jury concerning the presumption of innocence, reasonable doubt and intent and that consequently he was deprived of due process of law and a fair trial. The defendant neither submitted a request to charge on any of these issues at trial nor did he take exception to the trial court’s charge concerning them. He contends on appeal, however, that he was deprived of a fundamental constitutional right and a fair trial, and that he is entitled to have his claims reviewed under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We disagree.

The record reveals that the trial court’s jury instructions concerning the presumption of innocence and reasonable doubt are the same or similar to jury instructions that previously have been approved by this court. See, e.g., State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986); State v. Leecan, 198 Conn. 517, 538-39, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985); State v. Just, 185 Conn. 339, 353, 441 A.2d 98 (1981). Those instructions, and any deviation from the previously approved language of those instructions did not, when viewed in the context of the entire charge, dilute the defendant’s presumption of innocence or lessen the state’s burden of proof as claimed by the defendant. It is clear after reading the court’s charge in its entirety that the jury was adequately informed that the defendant was presumed innocent until the state proved otherwise and that it was the state’s burden to prove him guilty beyond a reasonable doubt. State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Guthridge, 164 Conn. 145, 154, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. Cari, 163 Conn. 174, 181, 303 A.2d 7 (1972). Because there was no clear deprivation of a fundamental constitutional right, we will not review the defendant’s claims relating to the presumption of innocence and reasonable doubt under State v. Evans, supra. State v. Golding, 213 Conn. 233, 240-41, 567 A.2d 823 (1989).

The defendant argues alternatively that his claims concerning the presumption of innocence and reasonable doubt are reviewable as plain error under Practice Book § 4185. We disagree. Plain error review “ ‘ “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” ’ State v. Miller, [202 Conn. 463, 469, 522 A.2d 249 (1987)], quoting State v. Hinckley, [198 Conn. 77, 87-88, 502 A.2d 388 (1985)].” State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). In this instance, the trial court’s instructions on the presumption of innocence and reasonable doubt did not result in a manifest injustice to the defendant. Id., 289. There is no plain error.

The defendant also claims that the trial court’s instructions on intent placed too much emphasis on the fact that an individual’s intent is usually proved by inference. He argues that where, as here, there was direct evidence of his lack of intent to cause death, the court’s charge concerning the inferences that could be drawn from his actions was inappropriate and resulted in constitutional error. We are unpersuaded. Our reading of the court’s charge leads to the conclusion that the instructions on intent delivered by the trial court were adequate to guide the jury on that issue. If the defendant desired a charge more specifically tailored to his individual circumstance, he should have requested it. Lane v. Ludeman, 131 Conn. 112, 117, 38 A.2d 178 (1944).

The defendant also claims that the trial court, when it used the words “must” in one instance and “duty” in another relating to inferences and intent, created conclusive presumptions and forced the jury to draw inferences it might not otherwise have drawn. See Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). The totality of the court’s instructions, however, made clear that any inferences to be drawn by the jury were permissive, not mandatory. The court’s charge with regard to intent did not deprive the defendant of a constitutional right and does not warrant review under State v. Evans, supra. State v. Golding, supra, 240-41.

There is no error.

       The trial court’s instructions that are the subject of the defendant’s appeal concerning the presumption of innocence and reasonable doubt are as follows: “[B]ut you must keep in mind that those rules of law are made to protect the innocent and not the guilty”; and “[a] reasonable doubt is a doubt to which a valid reason can be assigned. ... It is such a doubt as in serious affairs which concern you in your everyday life you would pay some strict attention to.”

       “[Practice Book] Sec. 4185. (Formerly Sec. 3063). errors considered “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       The defendant cites his pretrial statements as evidence that at the time of the homicide he was in the throes of cocaine induced intoxication that precluded him from forming a specific intent to cause death.


author: Callahan, J.

text:
    State of Connecticut v. Michael Walker
    (13664)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued December 14, 1989
    decision released March 6, 1990

      Brian M. O’Connell, for the appellant (defendant).

      Rita M. Shair, deputy assistant state’s attorney, with whom were James E. Thomas, assistant state’s attorney, and, on the brief, John M. Bailey, state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Michael Walker, was charged in a substitute information with murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a) and assault in the first degree in violation of General Statutes §§ 53a-59 (a) (l) and 53a-8. After a jury trial, he was found guilty of all the charges and was subsequently sentenced by the trial court to an effective term of imprisonment of eighty years.

The defendant claims on appeal that the trial court erred in: (1) denying his motion for a new trial because of the state’s delay in disclosing exculpatory evidence; and (2) allowing into evidence the testimony of a witness for the state that she had been threatened. We find no error.

The record discloses that the defendant and Tracey Fisher were arrested in connection with the death of Thomas Dixon and the wounding of Barrington Solomon. The shooting occurred on the evening of May 12, 1987. Dixon and Solomon were seated, conversing on the first floor rear porch of a multiple family dwelling located at 104 Enfield Street in Hartford. The defendant and Fisher approached the dwelling and fired bursts from a .30 caliber automatic or semi-automatic weapon at the men on the porch. The shots killed Dixon instantly and severely wounded Solomon. The shooting was apparently motivated by the defendant’s desire to avenge his brother, Robert Walker, who, on a previous occasion, had been shot by Solomon and, as a result, was paralyzed.

At the defendant’s trial the state offered Lehman Brown as a witness. Brown testified that he knew the defendant and Fisher and that he had been with them early in the day on May 12,1987. Thereafter, he said, he had gone to visit a friend, Dion Smith, at her apartment. Brown testified that Smith resided at 98-100 Enfield Street, the premises adjoining 104 Enfield Street where Dixon and Solomon were shot. Brown stated that he had fallen asleep at 98-100 Enfield Street and that upon awakening in the evening he had gone out on a rear porch. While there, he observed the defendant and Fisher come through the back lot behind 98-100 Enfield Street. Fisher was in possession of an automatic weapon. Brown stated that he then saw Fisher scale a fence between the properties and fire a series of shots at the men on the porch. Fisher then returned to where the defendant was standing and handed him the gun. The defendant then fired a burst from the weapon at the porch. Fisher and the defendant then ran from the scene.

Smith, Brown’s friend, did not testify in the state’s case-in-chief nor did she testify for the defense. After the defendant had rested his case, however, the state called her as a witness on rebuttal. Smith testified that she had known Brown for approximately two and one-half years. She stated that, although she had been with Brown on May 12, 1987, she had never been with him in or near an apartment at 98-100 Enfield Street in Hartford. Smith was not cross-examined by the defendant.

During the state’s closing argument to the jury the prosecuting attorney noted that he had called Smith as a witness because he had a duty to see that the defendant received a fair trial and that he was obligated to produce all the relevant evidence whether it helped or hurt the state’s case. He then stated that Smith’s testimony indicated that the state’s witness, Brown, “was probably not on the porch at 100 Enfield Street on the night in question.”

I

The defendant claims that the trial court erred in denying his motion for a new trial because of the state’s failure promptly to disclose Smith’s exculpatory testimony prior to calling her as a witness. He argues that the lack of prior disclosure amounted to the suppression of exculpatory evidence and deprived him of his right to due process under both the federal and state constitutions.

It is axiomatic that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). However, “ ‘[e]vidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady. State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982); State v. Perez, 181 Conn. 299, 309, 435 A.2d 334 (1980); State v. Grasso, 172 Conn. 298, 303, 374 A.2d 239 (1977).’ State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812 [cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84] (1985).” (Emphasis added.) State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986).

Here, Smith testified as to her exculpatory knowledge at trial. The .defendant, therefore, has no basis for a claim of suppression. He can complain only of the timing of the disclosure. Id.; see Hudson v. Sowders, 510 F. Sup. 124, 126 (W.D. Ky. 1981), aff’d, 698 F.2d 1220 (6th Cir. 1982). Under such circumstances the defendant bears the burden of proving that he was prejudiced by the failure of the state to make Smith’s information available to him at an earlier time. United States v. Stone, 471 F.2d 170, 173-74 (7th Cir. 1972), cert. denied, 411 U.S. 931, 93 S. Ct. 1898, 36 L. Ed. 2d 391 (1973); State v. Reddick, supra, 121-22.

The defendant failed, however, to demonstrate in the trial court or this court on appeal how he was specifically prejudiced by not having been furnished information concerning the subject matter of Smith’s testimony prior to the time she testified. In his brief he merely asserts that, because he was not informed of Smith’s testimony at an earlier time, he was deprived of an opportunity to conduct an adequate investigation or to prepare adequately for cross-examination. He fails to specify, however, in what way the earlier discovery of Smith’s testimony would have aided him in the preparation and presentation of his case. Smith appears to have testified about whatever material knowledge she possessed that could have been helpful to the defendant. The defendant, moreover, seems to have reached this same conclusion. There was no request after Smith’s direct testimony for a recess to prepare for cross-examination or for a continuance to conduct a further investigation. The defendant, in fact, was apparently satisfied with Smith’s testimony because, rather than attempt to improve upon it, he waived completely his opportunity to cross-examine her.

Where there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied “is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833, 100 S. Ct. 65, 62 L. Ed. 2d 43 (1979); State v. Reddick, supra, 122; State v. Packard, 184 Conn. 258, 277, 439 A.2d 983 (1981). After reviewing the record and the defendant’s broad, unsubstantiated claims of prejudice in this case, we can only conclude that his prior lack of information concerning the subject matter of Smith’s testimony did not prejudice him in any way or deprive him of a fair trial. State v. Reddick, supra. “On this record, the defendant’s claims of prejudice are purely speculative and cannot furnish a basis for the reversal of his conviction.” State v. Miner, 197 Conn. 298, 305, 497 A.2d 382 (1985).

II

The defendant next claims that the trial court erred by allowing a witness for the state to testify concerning threats directed toward her. At trial, the witness, Nadine Collier, identified the defendant as a man she had seen running from the area of the shooting. On cross-examination, however, she admitted that prior to trial she had given a statement to an investigator for the public defender to the effect that she could not identify the defendant.

On redirect examination, the state, in an effort to explain the discrepancy between Collier’s testimony and her statement to the investigator, inquired of Collier whether she had been threatened prior to giving her statement. Collier testified that she had received threatening telephone calls and had been followed. She testified that consequently she was too frightened to tell the truth when she was interviewed by the investigator. None of the threatening behavior was connected by evidence to the defendant. The defendant claims on appeal that because there was no evidence to link him to the threats, Collier’s testimony was inadmissible and its admission into evidence was reversible error. We disagree.

The general rule is that threats against witnesses are not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of the threats. State v. Altrui, supra, 174; State v. Brokaw, 181 Conn. 475, 478-79, 436 A.2d 6 (1980); State v. Sorbo, 174 Conn. 253, 256, 386 A.2d 221 (1978); State v. May, 587 S.W.2d 331, 336 (Mo. App. 1979); Commonwealth v. Bryant, 316 Pa. Super. 46, 50, 462 A.2d 785 (1983); State v. Payano, 528 A.2d 721, 728 (R.I.1987); 1 F. Wharton, Criminal Evidence (14th Ed. Torcia) § 145; C. McCormick, Evidence (3d Ed.) § 273. The reason for the rule is that evidence of threats against witnesses is generally admissible either on the theory that such conduct is inconsistent with the defendant’s claim of innocence or on the theory that the making of such threats evinces a consciousness of guilt. State v. Leecan, 198 Conn. 517, 534, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Brokaw, supra, 479; State v. Graham, 13 Conn. App. 554, 565, 538 A.2d 236, cert. denied, 207 Conn. 812, 541 A.2d 1241 (1988); State v. Waterman, 7 Conn. App. 326, 351, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986); State v. Payano, supra, 727-28. Obviously, if the threats cannot be linked to the defendant, evidence of such threats directed toward a witness would be of no probative value for those purposes. State v. Maturo, 188 Conn. 591, 597, 452 A.2d 642 (1982); State v. Altrui, supra, 174; State v. Brokaw, supra.

An exception to the general rule concerning the admissibility of evidence of threats exists, however, where the evidence of threats is offered not to prove the guilt of the accused but rather to explain a witness’ prior inconsistent statement. Washington v. State, 293 Md. 465, 470, 445 A.2d 684 (1982); Brown v. State, 80 Md. App. 187, 194, 560 A.2d 605 (1989); Commonwealth v. Carr, 436 Pa. 124,127-28, 259 A.2d 165 (1969); Commonwealth v. Bryant, supra, 50-51. “A witness who has been impeached by the admission of a prior inconsistent statement is generally entitled to explain such contradictory statement.” Coleman v. State, 632 S.W.2d 858, 863-64 (Tex. App. 1982); Braxton v. State, 57 Md. App. 539, 556,470 A.2d 1327, cert. denied, 300 Md. 88, 475 A.2d 1200 (1984); Williams v. State, 604 S.W.2d 146, 149 (Tex. App. 1980). “In order to avoid the effect of cross-examination a witness may be asked for reasons for acts or conduct on his part, or for inconsistent statements that have been brought out on cross-examination.” State v. May, supra, 336; State v. Griffin, 497 S.W.2d 133, 135-36 (Mo. 1973); 98 C.J.S., Witnesses § 421. “The scope and extent of the explanation for the conduct or inconsistent statements is a matter within the discretion of the trial court and we may reverse only upon a finding of abuse of that discretion. State v. Charles, 525 S.W.2d 360, 363 (Mo. App. 1975).” State v. May, supra.

“Pursuant to the rule permitting explanations of prior inconsistent statements, it is generally held that evidence of threats to a witness or fear on the part of a witness, in order to explain an inconsistency, is admissible in criminal cases for credibility rehabilitation purposes even if the threats or fear have not been linked to the defendant. E.g., United States v. Holladay, 566 F.2d 1018 (5th Cir.), cert. denied, 439 U.S. 831, 99 S. Ct. 108, 58 L. Ed. 2d 125 (1978); United States v. Rivera, 513 F.2d 519 (2d Cir.), cert. denied, 423 U.S. 948, 96 S. Ct. 367, 46 L. Ed. 2d 284 (1975); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S. Ct. 810, 42 L. Ed. 2d 825 (1975); United States v. Pritchard, 458 F.2d 1036, 1039-1040 (7th Cir.), cert. denied, 407 U.S. 911, 92 S. Ct. 2434, 32 L. Ed. 2d 685 (1972); United States v. Scandifia, 390 F.2d 244, 251-252 (2d Cir. 1968), vacated and remanded on other grounds, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297 (1969); Benefield v. State, 140 Ga. App. 727, 731, 732, 232 S.E.2d 89 (1976); State v. May, [supra]; Commonwealth v. Carr, [supra]; Villarreal v. State, 576 S.W.2d 51 (Tex. Crim. App. 1978), cert. denied, 444 U.S. 885, 100 S. Ct. 176, 62 L. Ed. 2d 114 (1979).” Washington v. State, supra, 470; see also Brown v. State, supra, 608; Williams v. State, supra, 149.

In this instance, the evidence of threats directed toward Collier was offered and admitted to rehabilitate Collier as a witness and to explain the discrepancy between her trial testimony and her pretrial statement. For that purpose, the evidence of threats was relevant to show Collier’s state of mind and was not hearsay because it was not offered for its truth. Its admission lay within the sound discretion of the trial court. Brown v. State, supra, 608. If the defendant was concerned that the jury might be inclined to consider the threats as evidence of his guilt, an eventuality we consider highly unlikely, he could have requested the trial court to deliver a cautionary instruction. “Having failed to do so, he has no legitimate complaint about the admission of this evidence, clearly relevant to explain the prior inconsistent statement.” Commonwealth v. Carr, supra, 128.

In admitting the testimony of threats directed toward Collier, the trial court did not abuse the broad discretion accorded it concerning the admissibility of evidence. Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987); State v. Williams, 203 Conn. 159, 183-84, 523 A.2d 1284 (1987); State v. Bunkley, 202 Conn. 629, 649, 522 A.2d 795 (1987); State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985); 2 F. Wharton, supra, § 416.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] See. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
      “[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.”
      “[General Statutes] Sec. 53a-48. conspiracy. RENUNCIATION, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 53a-59 (a) (1) provides: “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.”

       A motion to sever Fisher’s trial from that of the defendant was granted and Fisher and the defendant were tried separately. Fisher was convicted and on appeal to this court his conviction was upheld. See State v. Fisher, 210 Conn. 619, 556 A.2d 596 (1989).

       The defendant’s brother Robert was shot by Solomon after Robert shot Solomon six times while Solomon sat in his car on a Hartford street.

       Lehman Brown was also known as Landon Brown.

       The state claimed that it had only located Smith the morning of the day that she testified.

       The defendant in his brief does not articulate any different standard to be applied in this instance to the alleged federal and state constitutional violations. A similar right to due process exists under the state constitution independent of the federal constitution. State v. Cohane, 193 Conn. 474, 495-96 n.16, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 33 (1984).

       The defendant also indicates he was prejudiced because he might have wished to call Smith himself. He does not specify how the exculpatory evidence would have been more effective if elicited by the defense rather than the prosecution.

       Collier testified that at the time she was under the impression that the public defender’s investigator was “against” Walker.

       In State v. Sorbo, 174 Conn. 253, 386 A.2d 221 (1978), this court, although it did not analyze or cite any law pertaining to the admissibility of unattributed threats to explain a witness’ inconsistent statements, did appear to conclude that in a criminal case, threats, unless connected to the defendant, are inadmissible for any purpose. Insofar as Sorbo may conflict with this opinion, it is overruled.


author: Glass, J. Shea, J., with whom Covello, J., joins,

text:
    State of Connecticut v. Terrence Boyd
    (13514)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued November 2, 1989
    decision released March 6, 1990

      John F. Kavanewsky, Jr., for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, David I. Cohen, assistant state’s attorney, and Eric M. Higgins, legal intern, for the appellee (state).
   Glass, J.

The defendant, Terrence Boyd, was charged in a substitute information with the crimes of felony murder in violation of General Statutes § 53a-54e, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (1) and larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3). All of the charges stemmed from the murder of Ann Viner during the burglary of her home in New Canaan, on December 10,1986. After a trial to a jury of twelve, the defendant was found guilty on all of the charges except larceny in the first degree. On January 21,1988, the defendant was sentenced to an effective prison term of forty-five years.

The defendant’s principal argument on appeal is that the trial court erred in finding probable cause to prosecute him for felony murder. Specifically, at a joint probable cause hearing, the state offered evidence against the defendant and his codefendant, Tyrone Wilson. Neither the defendant nor Wilson took the stand and, in effect, the only evidence offered by the state implicating the defendant in Ann Viner’s murder was a written statement made by Wilson. In particular, Wilson claimed in his statement that, while both he and the defendant participated in the burglary of the Viner residence, it was the defendant who killed Ann Viner.

The defendant contends that the trial court improperly admitted Wilson’s statement for the following reasons: (1) the statement was hearsay and did not come under any recognized exception to the hearsay rule; and (2) admission of the statement violated his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Thus, the defendant asserts, and the state concedes, that without Wilson’s statement, there was insufficient evidence offered by the state to find probable cause to prosecute the defendant for felony murder.

In assessing the defendant’s claim, we must undertake several levels of inquiry. First, because the defendant received a fair trial, we must resolve the question of whether appellate review of the trial court’s probable cause determination is warranted in this case. If so, we must then determine whether the trial court erred in admitting Wilson’s statement at the probable cause hearing.

I

Article first, § 8, of the Connecticut constitution, as amended, provides in part that “[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law.” In State v. Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986), we held that “appellate review of the determination of probable cause is essential to fulfilling the purpose of [article first, § 8].” Furthermore, we stated that “an invalid finding of probable cause at such a hearing undermines the court’s power to hear the case at trial.” Id., 332.

Moreover, in Mitchell, we held that the standard for determining whether probable cause exists is “ ‘whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime.’ ” Id., 336. We further noted that, when a defendant claims the evidence presented by the state was insufficient to meet this standard, “we must examine the evidence presented at the preliminary hearing to determine whether it was sufficient to support the trial court’s finding of probable cause.” Id., 335. In our recent decision of State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989), we reaffirmed this principle, stating: “[I]mplicit in our decision [in Mitchell] was an understanding that, at the very least, insufficiency of the evidence presented at the probable cause hearing will deprive the trial court of jurisdiction over the person of the defendant, thus rendering moot any subsequent prosecution and conviction.”

Therefore, even though the defendant received a fair trial, appellate review of his claim that the state presented insufficient evidence to establish probable cause to prosecute him for felony murder is mandated.

II

The defendant’s first ground for claiming that the trial court erred in admitting Wilson’s statement is that the statement is hearsay and does not fall under any recognized exception to the hearsay rule. General Statutes § 54-46a (b), the implementing legislation for article first, § 8, states that at a probable cause hearing “[t]he court shall be confined to the rules of evidence.” The state concedes that Wilson’s statement is hearsay, but argues that it is admissible as a third party statement against penal interest or, alternatively, is admissible under the catch-all exception to the hearsay rule.

“In State v. DeFreitas, [179 Conn. 431, 450, 426 A.2d 799 (1980)], we adopted a rule, consistent with Chambers v. Mississippi, [410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed 2d 297 (1973)], and in accord with rule 804 (b) (3) of the Federal Rules of Evidence, which provides that trustworthy third party statements against penal interest which are exculpatory to the defendant are admissible if the declarant is unavailable.” State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); see State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). In the present case, however, Wilson’s statement does not exculpate the defendant but, rather, clearly inculpates the defendant.

This court has never extended the principles of DeFreitas to include inculpatory as well as exculpatory trustworthy third party statements against penal interest. The state argues that we should now so extend DeFreitas. We decline, however, to do so. The state accurately cites to several federal jurisdictions that have held that trustworthy third party statements, that are inculpatory to the defendant, are admissible. See, e.g., United States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989); United States v. Katsougrakis, 715 F.2d 769, 774-75 (2d Cir. 1983), cert. denied, 464 U.S. 1040, 104 S. Ct. 704, 79 L. Ed. 2d 169 (1984); United States v. Riley, 657 F.2d 1377, 1383 (8th Cir. 1981), cert. denied, 459 U.S. 1111, 103 S. Ct. 742, 74 L. Ed. 2d 962 (1983); United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th Cir. 1981), cert. denied, 459 U.S. 834, 103 S. Ct. 77, 74 L. Ed. 2d 75 (1982). These jurisdictions only admit third party inculpatory statements, however, if such statements are corroborated by circumstances that indicate trustworthiness. See, e.g., United States v. Candoli, supra; United States v. Katsougrakis, supra; United States v. Sarmiento-Perez, supra, 1098; United States v. Alverez, 584 F.2d 694, 699, 701 (5th Cir. 1978).

Significantly, courts have failed to find sufficient indicia of trustworthiness surrounding inculpatory statements, made against a codefendant by a third party in police custody, to warrant their admission. See, e.g., United States v. Palumbo, 639 F.2d 123, 127-28 (3d Cir.), cert. denied, 454 U.S. 819, 102 S. Ct. 100, 70 L. Ed. 2d 90 (1981); United States v. SarmientoPerez, supra, 1102; United States v. Love, 592 F.2d 1022, 1025 (8th Cir. 1979); United States v. Alverez, supra, 701-702; United States v. Bailey, 581 F.2d 341, 345-46 (3d Cir. 1978). As the Third Circuit Court of Appeals noted in United States v. Palumbo, supra, 127: “The Advisory Committee on the Federal Rules of Evidence has warned, in particular, that the courts should exercise special caution when the statement was made by a defendant in police custody and against a co-defendant. ‘Whether a statement is in fact against interest,’ the committee observed, ‘must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.’ Advisory Committee Note to Rule 804 reprinted in 4 J. Weinstein and M. Berger, Weinstein’s Evidence, at 804-24.” See State v. Gold, supra, 635. In United States v. Sarmiento-Perez, supra, the Fifth Circuit Court of Appeals noted that in such situations there exists “obvious motives for falsification— the very natural desire to curry favor from the arresting officers, the desire to alleviate culpability by implicating others, the enmity often generated in a conspiracy gone awry, the desire for revenge, all might lead an arrestee-declarant to misrepresent or to exaggerate the role of others in the criminal enterprise.”

In the present case, Wilson’s statement implicated his codefendant, and was made to the police while Wilson was in custody. Furthermore, at the probable cause hearing no evidence was offered that corroborated Wilson’s statement to the extent that it implicated the defendant in Ann Viner’s murder. Therefore, even if we were to extend the principles of DeFreitas to encompass inculpatory third party statements, Wilson’s statement lacks sufficient indicia of trustworthiness to be admissible.

In addition, Wilson’s statement was not admissible under the catch-all exception to the hearsay rule. Under the catch-all exception a court may admit a statement that is technically hearsay and does not fall within the traditional hearsay exceptions, provided: “(1) there is a ‘reasonable necessity’ for the admission of such statement, and (2) the statement is supported by ‘an adequate basis of assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long-established exceptions to the hearsay rule. . . .’ ” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.25, p. 414; see State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Reardon, 172 Conn. 593, 597-98, 376 A.2d 65 (1977). Thus, it is clear from our above examination of Wilson’s statement, that it lacks the requisite “reliability and trustworthiness” to be admissible under the catch-all exception.

In conclusion, we hold that Wilson’s statement was inadmissible on evidentiary grounds. Therefore, the trial court erred in admitting the statement at the defendant’s probable cause hearing. Thus, since Wilson’s statement was the only evidence offered by the state at the probable cause hearing that effectively implicated the defendant in Ann Viner’s murder, and since our decision in State v. McPhail, supra, 170, states that “insufficiency of the evidence presented at the probable cause hearing will deprive the trial court of jurisdiction over the person of the defendant,” the defendant’s subsequent prosecution and conviction is rendered moot.

There is error, the judgment of conviction of felony murder is set aside and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion Healey and Hull, Js., concurred.

Shea, J., with whom Covello, J., joins,

dissenting. I agree with the majority that the trial court’s ruling admitting, for the purpose of establishing probable cause against the defendant, the statement of his accomplice, Tyrone Wilson, was a clear violation of the hearsay rule and thus erroneous. I disagree, however, that this error, even though it leaves the finding of probable cause without sufficient support in the evidence, requires a remand for a new trial, which setting aside the judgment entails.

This is the first case in which the decision of this court in State v. Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986), that a finding of probable cause is reviewable on appeal after a defendant has been proved guilty beyond a reasonable doubt of committing the crime involved, has resulted in setting aside the conviction and remanding the case for “further proceedings,” which necessarily include a new trial. Although in the interim we have reviewed several findings of probable cause, until now we have not been compelled by that precedent to engage in the illogic of ordering a new trial for a defendant when we have found the trial at which he was convicted to have been without error. State v. McPhail, 213 Conn. 161, 567 A.2d 812 (1989); State v. Shannon, 212 Conn. 387, 563 A.2d 646, cert. denied, U.S. , 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. John, 210 Conn. 652, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Vinal, 205 Conn. 507, 534 A.2d 613 (1987); State v. Rollinson, 203 Conn. 641, 526 A.2d 1283 (1987). In this case, however, by adhering to the Mitchell precedent, the majority finds it necessary to order further proceedings to determine probable cause and a new trial, “even though the defendant has already received a fair trial,” as the opinion acknowledges. I agree with the majority that no other result than that reached by the opinion is possible in view of the prejudicial error committed at the probable cause hearing, unless we depart from Mitchell and hold that an erroneous finding of probable cause is a harmless error after a defendant has been found guilty beyond a reasonable doubt following a fair trial.

I concurred in the result reached in Mitchell, affirmance of the conviction, but dissented from the view of the majority as to reviewability of probable cause hearings upon the ground that errors in the determination of probable cause should be regarded as harmless, once a defendant has been convicted after a fair trial not impacted by such error. “A finding by a jury that a person is guilty beyond a reasonable doubt a fortiori signifies that there is probable cause to prosecute him. Even if the evidence offered at the probable cause hearing [is] inadequate to support the finding of probable cause made by the trial court, it would still make no sense to vacate the jury’s finding of guilt beyond a reasonable doubt after a fair trial in order to require the state to make an adequate showing of probable cause at this stage of the proceeding.” State v. Mitchell, supra, 339 (Shea, J., concurring). To set aside this defendant’s felony murder conviction on the ground of a deficiency in the evidence at the probable cause hearing that was adequately cured by the evidence presented at trial is an absolutely futile exercise. The transcript of the trial unquestionably demonstrates the existence of probable cause to prosecute the defendant for felony murder. A remand for the purpose of another determination thereof, and a concomitant new trial, after no error has been found in his first trial, is a flagrant waste of judicial resources and imposes a wholly unnecessary hardship on the family of the victim in being required to undergo the trauma of a second trial.

As I observed in Mitchell, the principal concern of the majority in that case was that, without appellate review, General Statutes § 54-46a, which implements the seventeenth amendment to our state constitution, “would become a hollow shell.” Id., 343. This consideration, of course, is not insignificant, but the absence of appellate review of probable cause hearings would create no diminution in the rights of defendants as they existed when a finding of probable cause by a grand jury was required. “[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence . . . . ” United States v. Calandra, 414 U.S. 338, 345, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). Although the adequacy of the evidence presented to a grand jury was never subjected to judicial review at the appellate or trial court level, we never regarded that venerable institution as a “hollow shell.”

If appellate review of probable cause hearings is to become standard criminal practice, it ought to be accomplished before a trial and conviction that make such a determination academic. To achieve pretrial review of a finding of probable cause, the legislature might well have provided for it, as it is their prerogative to define our jurisdiction. Conn. Const., art. V, § 1. The legislature did enact a provision for treating transfers of juveniles to the Superior Court under General Statutes §§ 46b-126 and 46b-127 as reviewable final judgments, after our decision had been published in In re Juvenile (85-AB), 195 Conn. 303, 488 A.2d 778 (1985), in which we had held that transfer orders were not appealable, because they were not final judgments.

This court, relying in part on Mitchell, has refused to apply to an appeal from a probable cause finding the principle of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), that “[a]n otherwise interlocutory order is appealable . . . where the order or action so concludes the rights of the parties that further proceedings cannot affect them” or to treat the probable cause hearing as “a separate and distinct proceeding from which an appeal would lie.” Id.; State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234 (1987). There is reason to be concerned, undoubtedly, with the probable impact on the increase in the volume of appeals that is likely to result, as well as the opportunity to delay the trial of cases on their merits, that would be afforded by such an expansion of the right to appeal by either the legislature or this court. Nevertheless, such a solution would be preferable to continued adherence to Mitchell, which, in this case necessitates a new trial for a defendant found guilty of felony murder beyond a reasonable doubt following a trial that is conceded to have been fair.

Accordingly, I dissent.

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

       Wilson entered into a plea agreement with the state, agreeing to a sentence of twenty years. The defendant, therefore, was tried alone.

       At the probable cause hearing, the state called only three witnesses. The first was Officer David Heitz of the New Canaan police department. Heitz had responded to the Viner residence on December 10,1986, and testified as to what he observed at the crime scene. The second was Patrick Shanley, a friend of both Wilson and Boyd, who testified that he had been with the two men earlier in the day, and that later in the day he saw Wilson walking along the side of a road in the vicinity of the Viner residence. The third and final witness was Lieutenant Gene Ready of the New Canaan police department, who testified that he took a written statement from Wilson on the day of his arrest. The state then introduced Wilson’s statement into evidence.

       The defendant’s only claim of error regarding his trial, at which both he and Wilson testified, is that the trial court erred in admitting Wilson’s statement as a prior consistent statement. After review of this claim, we conclude, however, that even if the trial court erroneously admitted Wilson’s statement, the defendant has not met his burden of showing that the error was harmful. See State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982). Therefore, we conclude that the defendant received a fair trial.

       The defendant raised this objection before the trial court. In particular,' when the state offered Wilson’s statement into evidence, the following colloquy occurred among counsel and the court:
      “Mr. Imhoff [Counsel for Boyd]: I’m going to object to it, Your Honor.
      “The Court: On what grounds?
      “Mr. Imhoff: Well it’s hearsay, Your Honor, and it doesn’t come within any of the exceptions to the hearsay [rule],
      * ** *
      “Mr. Cohen [Counsel for the state]: It’s a statement against penal interest. It’s perfectly good evidence.
      “The Court: Yes. . . . The objections are overruled and it may be admitted.”

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

       With the exception of certain matters not pertinent to this appeal.

       Rule 804 (b) (3) of the Federal Rules of Evidence reads as follows: “(b) Hearsay exceptions. — The following are not excluded by the hearsay rule if the declarant is unavailable as a witness ....
      “(3) Statement against interest. — A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

       Furthermore, the New Jersey Supreme Court Committee on Evidence stated that “declarations against the penal interest of a declarant should be inadmissible against another in the criminal prosecution of the latter, particularly if made while the declarant was in police custody .... It is widely thought that in criminal prosecutions such statements are too fraught with inherent untrustworthiness to merit admissibility.” Report, New Jersey Supreme Court, Committee on Evidence (1963) pp. 170-71.

       Given that we have concluded that Wilson’s statement was inadmissible hearsay, we need not examine the defendant’s claim that the admission of Wilson’s statement violated his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution,

       The dissent asserts that remanding this case for a new trial, after no error was found in the defendant’s first trial, is “a flagrant waste of judicial resources and imposes a wholly unnecessary hardship on the family of the victim in being required to undergo the trauma of a second trial.” We agree that, just like all cases that are remanded for a new trial following a finding of harmful error, another trial in this case will be traumatic. Nonetheless, we do not believe that this consideration warrants the abandonment of protecting constitutional principles. As Justice Thurgood Marshall of the United State’s Supreme Court stated in his dissent in Guardians Assn. v. Civil Service Commission, 463 U.S. 582, 626, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983), “a right without an effective remedy has little meaning.”
      Therefore, we believe that the state constitutional procedural principle that we reaffirmed less than two months ago in State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989), where we stated “implicit in our decision [in State v. Mitchell, 200 Conn. 223, 512 A.2d 140 (1986),] was an understanding that, at the very least, insufficiency of the evidence presented at the probable cause hearing will deprive the trial court of jurisdiction over the person of the defendant, thus rendering moot any subsequent prosecution and conviction,” is paramount to the concerns raised by the dissent. In sum, we adhere to the words of Justice Jackson of the United States Supreme Court as expressed in Shaughnessy v. Mezei, 345 U.S. 206, 73 S. Ct. 625, 97 L. Ed. 956 (1953): “Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice . . . .” Id., 224-25 (Jackson, J., dissenting).