author: Peters, C. J.

text:
    State of Connecticut v. Daniel Vinal, Jr.
    (13018)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued November 3
    decision released December 15, 1987

      F. Mac Buckley, for the appellant (defendant).

      James A. Kitten, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Andrew Wittstein, assistant state’s attorneys, for the appellee (state).
   Peters, C. J.

This appeal is the result of a retrial ordered by this court in State v. Vinal, 198 Conn. 644, 504 A.2d 1364 (1986) (hereinafter, Vinal I). We held there that the defendant, Daniel Vinal, Jr., who had been convicted of the crime of murder after a joint trial with a codefendant, James Avis, was entitled to a separate trial. In anticipation of the retrial, the state filed a substitute information charging the defendant with the crimes of murder in violation of General Statutes § 53a-54a and felony murder in violation of General Statutes § 53a-54c. After a finding of probable cause, and a trial to a jury, the defendant was found guilty. He appeals from the judgment sentencing him to a term of imprisonment of twelve years to life on both counts of the information. We find no error.

The events leading to the defendant’s conviction are fully described in our opinion in Vinal I, supra, 647. The evidence at the defendant’s retrial was essentially the same. The jury could reasonably have found the following facts. Early on the morning of October 8,1978, the victim left a Torrington bar and drove his car toward Litchfield. The defendant and James Avis followed him in a borrowed car. They forced the victim’s car to the side of the road, stopped their own car nearby and approached the victim. When the victim resisted Avis’ efforts to take his wallet, the victim was shot by the defendant. Avis then took the wallet and the defendant and Avis fled. The victim died of his gunshot wound.

The theory of the defense was that Avis, and not the defendant, had committed the crimes with which the defendant was charged. In the state’s view, to the contrary, both men were involved in the crimes. The jury found the defendant guilty as charged and the trial court denied the defendant’s motions for a new trial and for a judgment of acquittal.

The defendant, in his appeal from the judgment against him, has raised three issues. He alleges that the trial court erred in: (1) finding probable cause for the charges of murder and felony murder; (2) limiting the cross-examination of a state’s witness concerning a matter contained in his sworn affidavit; and (3) excluding the testimony of a defense witness concerning other crimes for which Avis had been arrested.

I

The defendant, in his first claim of error, urges us to hold that the trial court should have dismissed the charges against him because of the state’s alleged failure to establish probable cause to continue his prosecution. The trial court, with the consent of the parties, made its determination of probable cause on the basis of the evidence presented in the transcript of the proceedings in Vinal I. In Vinal I, supra, 657-59, this court had concluded that a jury could reasonably have found this evidence to have established the defendant’s guilt beyond a reasonable doubt. Considering the matter afresh, the trial court found probable cause.

When a trial court is asked to make a finding of probable cause, it must determine whether the state’s evidence would warrant a person of reasonable caution to believe that the defendant has committed the crime of which he has been accused. State v. Mitchell, 200 Conn. 323, 336, 512 A.2d 140 (1986). “The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial . . . .” Id.

Without contesting the Mitchell standard, the defendant argues that the trial court’s finding of probable cause was invalid in this case for two reasons. Principally, he maintains that a reasonable person would have believed that it was Avis and not he who had committed the crimes in question. With regard to this claim, he contends that our holding in Vinal I regarding the sufficiency of the evidence does not preclude us from concluding that the trial court erred in finding probable cause because the trial court had evidence before it at the probable cause hearing that had been suppressed at trial in Vinal I. Specifically, the defendant points to a statement by Avis to JoAnn VanBlarco that he had killed two men and to Avis’ arrest in the state of Washington on charges of kidnapping and assault with a firearm. According to the defendant, a reasonable person would have concluded that this evidence incriminated Avis and exculpated the defendant. Secondarily, the defendant contends that the evidence demonstrates that he was too intoxicated to have committed the crimes.

We are not persuaded on either count. The evidence implicating Avis that had been excluded at trial in Vinal I does not substantially undermine the defendant’s involvement in the crime, given the state’s theory that both men were participants. Moreover, Avis’ excluded statement to VanBlarco was merely corroborative of his confession, which had been admitted at trial in VinalI. As to the defendant’s alleged intoxication, it was considered and rejected in Vinal I, supra, 657-59, where the issue was sufficiency of the evidence to establish guilt. Our holding in Vinal I, consequently, is dispositive of the defendant’s claim.

II

The defendant’s second claim of error relates to an allegedly erroneous limitation of his right to cross-examine state police Sergeant Nicholas Valerio. Valerio supervised the homicide investigation in this case and executed the sworn affidavit that led to the defendant’s arrest. That affidavit incorporated not only Valerio’s own observations but also those of other officers who had participated in the investigation. The defendant attempted to cross-examine Valerio regarding statements made by witnesses to these other officers. The state successfully objected to this cross-examination, and the defendant has not raised that issue on this appeal. He does, however, maintain that he should have been allowed to cross-examine Valerio about the contents of the arrest affidavit with regard to statements made by state’s witness Martin Bielik to another, unidentified, police officer.

Bielik was the owner of the car that Avis drove on the morning of the crime. Bielik had previously testified that when the defendant and Avis had appeared at Bielik’s house early that morning, Avis had made a “gesture” to indicate that “something had happened” and that Avis had subsequently reiterated this message verbally. The defendant’s wife later testified that the defendant and Avis had returned to the defendant’s house in the early hours of the day of the crime. The arrest affidavit contained a paragraph indicating that Bielik had told the police that, on the morning when the defendant and Avis had come to Bielik’s house, he, Bielik, had been too intoxicated to know what time it was.

The defendant attempted to ask Valerio if he could recall “anything Mr. Bielik said that you put in this affidavit concerning the events of the early morning of October 8th.” Because Valerio had not personally interviewed Bielik, the trial court sustained the state’s objection to the question, even though the defendant maintained that he was not seeking to elicit hearsay testimony since his inquiry was directed not to the truth of the information contained in the affidavit but rather to impeach the credibility of Bielik as a witness against the defendant.

The defendant maintains that the question was relevant and appropriate in order to permit him to lay the basis for his impeachment of Bielik. In addition, he claims that exclusion of the question violated his constitutional right to cross-examination. We disagree.

Despite the defendant’s protestations to the contrary, the ground he proffered for the testimony he sought to elicit falls within the classical boundaries of the hearsay exclusion. Although he wanted to bring out the statement in the affidavit in order to impeach Bielik, the impeaching effect of the affidavit depended upon the truth of the matter there asserted. As the state points out, such a statement is hearsay. See State v. Silveira, 198 Conn. 454, 473, 503 A.2d 599 (1986); State v. Barlow, 177 Conn. 391,396,418 A.2d 46 (1979); State v. Saia, 172 Conn. 37, 51, 372 A.2d 144 (1976). An arrest warrant affidavit may rely on hearsay so long as the magistrate is provided with some of the underlying circumstances that indicate the statements are reliable. See Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); State v. Ballas, 180 Conn. 662, 665-66, 433 A.2d 989 (1980); State v. Townsend, 167 Conn. 539, 557, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); C. McCormick, Evidence (1987 Sup.) § 245. A hearsay statement does not, however, for that reason, become admissible at trial. See State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981); Dowling v. Kielak, 160 Conn. 14, 17-18, 273 A.2d 716 (1970). The trial court’s ruling on this issue was therefore entirely proper.

The defendant’s related constitutional argument, which he failed to raise at trial, is equally unavailing. Although there is a constitutional right to cross-examine adverse witnesses to uncover matters of motive, interest, bias and prejudice that might undermine the reliability of the witness’ testimony, that principle has no application here. The defendant’s interest in impeaching Bielik did not put Valerio’s reliability into issue. “Where reliability is not directly implicated . . . the scope of cross-examination is within the discretion of the trial court. State v. Vitale, 197 Conn. 396, 402-403, 497 A.2d 956 (1985); State v. Gaynor, 182 Conn. 501, 510-11, 438 A.2d 749 (1980).” State v. Weidenhof, 205 Conn. 262, 271, 533 A.2d 545 (1987). We can discern no abuse of discretion. Nothing in the present record discloses that the defendant was pre-eluded from making appropriate inquiries into the identity of the person who interviewed Bielik and thereafter eliciting details about the statement in the affidavit from that person. For these reasons, we conclude that the trial court’s limitation of Valerio’s cross-examination cannot be faulted.

Ill

The defendant claims finally that he should have been permitted to elicit testimony from his witness, Trooper James Blais, about the nature of the crimes for which Avis had been arrested in Seattle, Washington. Blais testified that he had undertaken a prolonged nationwide search for Avis after Avis’ flight from this jurisdiction. Avis’ whereabouts came to light when, on June 27,1980, Connecticut authorities received a teletype notification from the Seattle police department that they had arrested Avis. Pursuing this line of questioning, the defendant then asked Blais “for what” Avis had been arrested. The state objected on the grounds of hearsay, relevance and immateriality. The objection was sustained despite the defendant’s claim that the jury should have been allowed to hear that Avis had been arrested for kidnapping and assault with a firearm in order to impeach Avis’ credibility and to show that he was the type of person who would have committed the crimes with which the defendant had been charged.

On appeal, the defendant renews his claim that the defense should have been allowed to introduce evidence about the underlying crimes for which Avis was arrested in Seattle. He argues that the evidence was offered, “not . . . for the truth of the matter, but only to show the arrest did happen.” That information was, however, provided the jury. In reality, the defendant wanted the grounds of the arrest before the jury to bolster his argument that Avis was the kind of person who would have robbed and killed the victim in this case. Even if such information was relevant to bolster the defendant’s theory of the case, the record fails to disclose that Blais had any personal knowledge of the reasons for Avis’ arrest or of the reliability of the grounds that led the Seattle police to proceed as they did. At best, he could have testified about a statement made by the Seattle authorities. Such testimony is hearsay, and the court properly sustained the state’s objection to its admissibility. See State v. Silveira, supra; State v. Packard, supra; State v. Barlow, supra.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “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 . . . . ”

       General Statutes § 53a-54e provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime ... he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       The state’s brief indicates that James Avis has been prosecuted and convicted of the crime of felony murder.

       The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution confer upon a defendant in a criminal case the right to be confronted with the witnesses against him. A significant aspect of the right of confrontation is the cross-examination of adverse witnesses to expose to the jury whatever facts might bear upon the reliability of their testimony. State v. Weidenhof, 205 Conn. 262, 270, 533 A.2d 545 (1987); State v. Jarzbek, 204 Conn. 683, 692-93, 529 A.2d 1245 (1987), and cases there cited.

       At oral argument the defendant claimed that Blais had personal knowledge concerning the circumstances surrounding the arrest. He had failed, however, to raise this possibility as a basis for admitting the arrest in the trial court.


source: Caselaw Access Project

author: Hull, J. Arthur H. Healey, J.,

license: Public Domain

text:
    State of Connecticut v. Luis Laracuente
    (13165)
    Healey, Callahan, Glass, Covello and Hull, Js.

      (One justice dissenting)

      Argued October 9
    decision released December 15, 1987

      Thomas J. Ullmann, assistant public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was David Gold, assistant state’s attorney, for the appellee (state);
   Hull, J.

The defendant appeals from the judgment of conviction after a jury trial of risk of injury to a child by doing an act likely to impair her morals in violation of General Statutes § 53-21 and of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). He claims that: (1) the trial court erred in refusing to order the state to specify the particular date on which the sexual assault occurred; (2) there was insufficient evidence from which the jury could have convicted him of doing an act likely to impair the morals of a child; and (3) the court’s instruction to the jury on the charge of risk of injury to a child created a conclusive presumption as to one of the essential elements of the crime or shifted the burden of proof to the defendant.

The first claim of error relates to both counts of the information. The second and third claims relate only to the charge of doing an act likely to impair the victim’s morals.

The victim’s mother was the only witness to testify at the trial. The defendant did not cross-examine her. The jury could reasonably have found the following facts. In June or July of 1984, the victim, who was six years old, lived with her mother and the defendant, her mother’s boyfriend, in a one bedroom apartment in New Haven. There were two beds in the bedroom separated by two dressers between them. On a night in June or July of 1984, the defendant and the victim’s mother went to sleep together in one bed and the victim in the other. The victim’s mother woke up during the night to find that the defendant was not in bed with her. She walked over to the victim’s bed and found the defendant lying on his back beside her. He was fondling the victim’s vagina, had an erection, and was masturbating. The victim was sleeping at the time. The victim’s mother asked the defendant what he was doing and he got up. The next day she informed someone “in their professional capacity” about the incident but she did not inform the police. Sometime later she told her sister of the incident and moved into the sister’s house.

The substitute information charged that the defendant during June or July, 1984, impaired the morals of the victim and subjected her to sexual assault in the fourth degree. The defendant argues that in view of his hospitalization for two to three weeks during this two month period the lack of a more specific date of the alleged crime prevented him from preparing an adequate defense. He claims that had the crime allegedly occurred when he was in the hospital he would have had a “very strong” alibi. The defendant on three separate occasions moved for a bill of particulars setting forth a specific date or dates of the occurrence, all of which motions were overruled by the court. The state in response to oral argument said that it would attempt to narrow down the time period. When it filed the final substitute two count information, it fixed the date of the incident alleged to the months of June or July, 1984.

I

The defendant claims as error the trial court’s refusal to order the state to specify the particular date of the alleged incident.

The sixth amendment to the United States constitutution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. State v. Cates, 202 Conn. 615,625-26, 522 A.2d 788 (1987); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). “[That] the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial . . . are principles of constitutional law [that] are inveterate and sacrosanct.” State v. Sumner, 178 Conn. 163, 166, 422 A.2d 299 (1979); State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987); State v. Franko, supra; State v. Stepney, supra. If the defendant seeks a more precise statement of the offense charged in the information, he may file a motion for a bill of particulars requesting reasonable notice of the date, time and place of the commission of the crime charged. Practice Book §§ 831, 832; State v. Stepney, supra, 240-41. The defendant has the burden of showing why the particulars are necessary to the adequate preparation of his defense. State v. Stepney, supra. The denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. State v. Frazier, 194 Conn. 233, 237, 478 A.2d 1013 (1984); State v. Stepney, supra.

“The state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8 of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” State v. Stepney, supra, 242.

The test is that of reasonableness. People v. Morris, 61 N.Y.2d 290, 295, 461 N.E.2d 1256, 473 N.Y.S.2d 769 (1984), citing United States v. Cruikshank, 92 U.S. 542, 566, 23 L. Ed. 588 (1876). “[W]here time is not of the essence or gist of the offense, the precise time at which it is charged to have been committed is not material.” State v. Hauck, 172 Conn. 140,150,374 A.2d 150 (1976). The defendant admits that time was not an essential element of the crimes charged against him. State v. Ramos, 176 Conn. 275, 277, 407 A.2d 952 (1978). The defendant claims, however, in reliance on dicta in State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945), that time may become an essential factor if “the date should become material in some way, as where a defense of alibi is to be made.” See State v. Ferris, 81 Conn. 97, 100, 70 A. 587 (1908); State v. Bowman, 3 Conn. App. 148,155, 485 A.2d 1343 (1985).

The defendant claims actual prejudice in the preparation and presentation of his defense because of the lack of specificity of the date of the crimes charged against him. State v. Orsini, 187 Conn. 264, 274-75, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). In State v. Stepney, supra, 240, the trial court faced a similar claim concerning an alibi defense, where the bill of particulars stated that the crime of murder was committed within a seven hour time frame. This court found no error in the trial court’s denial of the defendant’s motion for a further bill of particulars. This court stated: “That a defendant may offer an alibi defense is a factor to be considered by the court in deciding whether to grant a motion under Practice Book § 832, but an alibi defense does not create a per se requirement that the state limit the times in the information more narrowly than the evidence available warrants. Whether the evidence available to the state has shown beyond a reasonable doubt that the defendant was at the scene of the crime at a time when it could have been committed is an issue for the jury to determine.” Id., 241 n.4.

The defendant states in his brief that defense counsel offered the hospital records to the trial court if the court wished to view them. The record reflects no action by the court on this offer. No finding was made by the court or requested by the defendant as to the dates claimed to be contained in the proffered material. No specific offer of proof was made. Nor did the defendant seek to make the proffered evidence an exhibit for identification so that we could examine it to determine the claimed dates of the defendant’s hospitalization. The defendant did not offer any alibi evidence at trial.

It is the appellant’s burden to furnish a record adequate to raise a claimed error. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Kaplan v. Kaplan, 186 Conn. 387, 388, 441 A.2d 629 (1982). The defendant has failed to show that the court’s decision denying his motion for a bill of particulars alleging a more specific date for the crimes charged was clearly prejudicial. State v. Frazier, 194 Conn. 233, 237, 478 A.2d 1013 (1984).

II

The defendant claims that the evidence of impairing the morals of a child was insufficient since the child was asleep when the act was committed.

The defendant was charged in count one with “engaging] in conduct likely to impair the morals of a child under the age of sixteen, to wit: the said defendant laid in bed with six year old M., fondled her genital area and masturbated himself, such conduct being in violation of section 53-21 of the Connecticut General Statutes.” Following the jury’s verdict, the defendant filed a motion for judgment of acquittal pursuant to Practice Book §§ 897 and 899 claiming insufficiency of the evidence that the act in question was likely to impair the victim’s morals. The court denied this motion.

On appeal we must determine whether “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .’” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890,100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). It is within the province of the jury to draw reasonable and logical inferences from the facts proven. State v. Carter, 196 Conn. 36, 44,490 A.2d 1000 (1985). Nor must we or the jury abandon common sense. The state had to prove the following elements: (1) that the victim was less than sixteen years old; (2) that the defendant had perpetrated an act upon the victim; (3) that this act was likely to impair her morals; and (4) that the defendant had a general criminal intent to perform such act. See State v. Martin, 189 Conn. 1, 8, 454 A.2d 256, cert. denied, 461 U.S. 933,103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). The defendant concedes that the evidence supported a finding that an act occurred upon a minor child and that inferences could be drawn from the defendant’s conduct concerning his general intent to commit the act. He also concedes that the state does not have to prove that the morals of the child were impaired but only that the conduct or acts of the defendant were such that the morals of the child were likely to be impaired. See State v. Palozie, 165 Conn. 288, 292, 334 A.2d 468 (1973). The defendant makes only the narrow claim that where the minor victim was asleep at the time of the act involved, no reasonable trier of fact could conclude that the act committed upon the child was “likely to impair her morals.” He claims that likelihood of impairment of morals requires consciousness and that the mere touching of a sleeping child, without any additional evidence, is insufficient to sustain the state’s burden of proof.

Neither the defendant nor the state can cite any authority concerning this precise issue.

The jury may appropriately base upon the defendant’s acts a conclusion that the morals of the child were likely to be impaired. State v. Pickering, 180 Conn. 54, 66, 428 A.2d 322 (1980). Although the defendant in his brief adverts to the touching of the victim’s genitals, the witness described the act as “fondling” of the genital area. The defendant does not challenge the court’s instructions to the jury on the definition of the key terms involved. The court instructed the jury that “likely” means “probable” or “in all probability;” that the term “impair” means “to weaken, to make worse, to lessen in power, diminish or otherwise affect in an injurious manner,” and that the term “morals” means “good, moral living, acting and thinking in accordance with those principles and precepts which are commonly accepted among us as right and decent.” The defendant did not except to the court’s instructions because of the court’s failure to instruct the jury that the victim must have been aware of his acts but only claims error on the grounds of insufficiency of the evidence.

“This court’s opinions pursuant to Sec. 53-21 make it clear that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of that statute.” State v. Pickering, supra, 64. It was not necessary for the state to prove the child’s awareness of the act. It was well within the jury’s province to draw reasonable inferences from proven facts that it was likely that the child would waken fully or partially during the act with resultant impairment of her morals. The court did not err in denying the defendant’s motion for judgment of acquittal.

Ill

The defendant’s third claim of error attempts to magnify a single statement in the court’s charge into an error of constitutional dimensions.

The defendant claims that by instructing the jury that the act itself is determinative of whether the child’s morals were apt to be impaired, the trial court unconstitutionally created a conclusive presumption or shifted the burden of proof to the defendant in violation of Sandstrom v. Montana, 442 U.S. 510, 521-23, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). State v. Williams, 199 Conn. 30, 34, 505 A.2d 699 (1986); State v. Theriault, 182 Conn. 366, 378-79, 438 A.2d 432 (1980); State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979).

A party is not entitled to a charge which is beyond criticism in every particular. State v. Harman, 198 Conn. 124,134, 502 A.2d 381 (1985). The charge should not be “critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). This court must determine whether in light of the charge as a whole it is reasonably possible that the jury was misled. State v. Jones, 193 Conn. 70, 90, 475 A.2d 1087 (1984).

The language objected to is as follows: “Under this part the defendant need not have specifically intended to impair the morals of the child. It is the act itself which determines whether or not there has been a violation of the statute.” An examination of the charge reveals that the court on four separate occasions instructed the jury that the state must prove that the defendant did an act which was likely to impair the morals of a child. It stressed repeatedly the doing of the act and the concomitant requirement that such act be likely to impair the morals of a child. The portion of the charge objected to is preceded by the statements: “I would further point out to you that the requirement is not for a specific intent. It does not have what we call a specific intent requirement, merely a general intent.” It thus becomes clear that the statement that “[i]t is the act itself which determines whether or not there has been a violation of the statute” is meant to point out to the jury that no specific intent to impair the morals of a child is required. This one statement in isolation did not unconstitutionally create a conclusive presumption or shift the burden of proof to the defendant. It is not reasonably possible the jury was misled.

There is no error.

In this opinion Callahan, Glass and Covello, Js., concurred.

Arthur H. Healey, J.,

dissenting. I agree that the trial court did not err in refusing to order the state to specify the particular date on which the sexual assault occurred. I do not agree that there was sufficient evidence from which the jury could legally reach its verdict of guilty on the charge that the defendant did an act likely to impair the morals of a child in violation of General Statutes § 53-21.

There is no problem with the statement of the majority that, in determining the sufficiency of the evidence claim, “we must determine whether ‘ “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .” ’ (Emphasis in original.) State v. Scielzo, 190 Conn. 191,197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).” It is also the jury’s prerogative to draw reasonable and logical inferences from the facts found proven. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). “A reasonable inference is a conclusion arrived at by a process of reasoning. This conclusion must be a rational and logical deduction from facts admitted or established by the evidence, when such facts are viewed in the light of common knowledge or common experience.” Samora v. Bradford, 81 N.M. 205, 207, 465 P.2d 88 (1970). We have acknowledged, as we must, that “ ‘[jjurors are not “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted.)’ ” State v. Scielzo, supra, 198 n.11, quoting Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981); see State v. Little, 194 Conn. 665, 673-74, 485 A.2d 913 (1984).

The child in this case was admittedly asleep throughout this bizarre episode. There is not one word of evidence in this case that she was ever anything but asleep. There is, therefore, not even a scintilla of evidence upon which the jury could base any reasonable inference that the child was aware in any fashion of her “victimization” by the defendant. This is so no matter how much common sense is factored into the deliberations of the trier of fact. In the Connecticut cases cited by the majority and those construing this statute which are not cited, the victim has actually been a victim because he or she has been aware of the reprehensible conduct of the defendant involved. Therefore, under the majority opinion, we are left with the “victimization” of a child who was obviously unaware at all relevant times of the defendant’s conduct. The § 53-21 count of the substitute information charged specifically that the defendant “engaged in conduct likely to impair the morals of a child under the age of sixteen,” and it specifically named that child. No amount of judicial gloss can alter the lack of any basis in the evidence for a reasonable inference that this conduct was likely to impair this child’s morals. No amount of judicial gloss can analytically supply a legislative intent that a child’s morals are likely to be impaired under the circumstances of this case.

Even though the child was only six years old at the time and perhaps could well not have comprehended the nature of the defendant’s action had she been awake, she would have, at the very least, been aware of his actions. Was § 53-21 ever intended to apply to such circumstances? I think not.

The defendant was also found guilty of the second count of the information of that charge that should have been the charge. That was one of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). In its instructions, the trial court charged the jury that “[sjexual contact . . . means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor and that is pleasure, satisfaction or delight of the actor or in this instance, the defendant.” No error is assigned to this instruction. The conviction under that statute does not depend on whether the victim is sleeping. The second count of sexual assault in the fourth degree was that charge that was adapted to the law and the evidence in this case.

It can fairly be said that few, if any, acts overcome reasonable persons with more disgust and abhorrence than the sexual abuse of children. That, however, does not bar enforcing the rule of law in such a case, as it is here, where the evidence is patently insufficient to sustain a conviction on the first count in violation of § 53-21. I would, therefore, find error on the conviction of the charge under § 53-21 and direct a judgment of acquittal on that charge. I would, however, find no error on the count charging the violation of § 53a-73a (a) (1) (A).

Therefore, I dissent.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       “[General Statutes] Sec. 53a-73a. sexual assault in the fourth degree: class a misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       The defendant did not brief the claim made in his statement of this issue that expert testimony was necessary concerning acts perpetrated upon sleeping minor children. This element of claimed error is deemed abandoned.

      I agree with the majority that the state had to prove the four elements essential for a guilty conviction under General Statutes § 53-21 which it sets out in its opinion citing State v. Martin, 189 Conn. 1, 8, 454 A.2d 256 (1983).
      I seriously question the majority’s analysis of the defendant’s claim that the trial court’s jury instructions on the risk of injury “created a conclusive presumption [as to one of the essential elements of the crime] or shifted the burden of proof to the defendant.” The majority’s conclusory declaration that in context “[i]t thus becomes clear that the statement that ‘[i]t is the act itself which determines whether there has been a violation of the statute’ is meant to point out to the jury that no specific intent to impair the morals of a child is required” at least inadvertently overlooks the formulation of the four essential elements of § 53-21 required by State v. Martin, supra. It is not the act itself that determines whether there has been a violation of the statute; it is proof of each of the four essential elements. “Instructions should be reviewed, inter alia, in terms of their effect upon the jurors who heard them . . . and so are to be read ‘to convey normal meanings to the jurors in the context of the case in which they are given’ . . . and‘as the jury might reasonably understand. . . [them].’” State v. Corchado, 188 Conn. 653, 666, 453 A.2d 427 (1982). Common sense suggests that this instruction could reasonably be understood, at the very least, to blur the individuality of two of the four essential elements: that the defendant had perpetrated an act upon the victim and that this act was likely to be injurious to her morals. See State v. Martin, supra.


author: Glass, J. Covello, J.,

text:
    State of Connecticut, v. William Evans
    (12968)
    Healey, Callahan, Glass, Covello and Hull, Js.

      (One justice dissenting)

      Argued October 9
    decision released December 15, 1987

      Michael E. O’Hare, assistant state’s attorney, with whom were John M. Massameno and Frank D ’Addabbo, assistant state’s attorneys, for the appellant (state).

      Hubert J. Santos, for the appellee (defendant).
   Glass, J.

The state has appealed from a decision of the trial court granting the defendant’s motion to dismiss a substitute information. Specifically, the state claims that the trial court erred when it held that the inability of the state to allege the specific date of the occurrence of the crimes charged warranted a dismissal. We agree.

According to the affidavit in support of the warrant for the defendant’s arrest, Sharon K. of Manchester came to the Glastonbury police department on December 14, 1984, and reported that her son, J, then fourteen years old, had been sexually abused by the defendant. She stated that while attending a family counseling session in New Hampshire on December 11, 1984, she had learned about the incident from her son.

According to Sharon K. the incident occurred at Evans House at 203 Williams Street, Glastonbury. Evans House is an alcoholic half-way house and the defendant, William Evans, was the executive director of the program. He resided at the house until his resignation in mid-October, 1984. Sharon K. described her family’s relationship with the defendant as a close friendship. J attended Evans House during the summer of 1984 for counseling for alcohol abuse. On December 17,1984, J was interviewed by Glastonbury police officer S. MacKinnon. J told MacKinnon that on a weekend in July, 1984, he was in the Evans House television room with the defendant and the defendant asked him if he “had ever done it with a man before?” J said “No” and ignored the defendant. The defendant suddenly grabbed J by the upper arm, pulled him to his feet and pushed him into the defendant’s bedroom upstairs. In the bedroom the defendant took his clothes off and then undressed J. J stated that the defendant began feeling and nibbling his body and forced him to submit to fellatio for about ten minutes. The defendant then made J perform fellatio on him, and after doing so for a short time the defendant abruptly released him and went into the bathroom. J dressed and went back downstairs. J also recalled that the defendant later told him not to say anything about the incident because he, the defendant, was an important person in the community and it would hurt many people if anything was said about the matter. From other interviews MacKinnon was informed that the defendant terminated work at Evans House in mid-October, 1984, and his resignation was effective November 1, 1984. After his resignation at Evans House the defendant became a referrals counselor in New Hampshire until he resigned on December 19, 1984, after he had been confronted with the allegations of Sharon K. that he had sexually abused her son.

Initially the defendant was charged in an undated six count information with several sexual offenses arising out of the alleged incident. In counts one and two of the information he was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a). In counts three and four he was charged with sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l). In count five he was charged with unlawful restraint in violation of General Statutes § 53a-95 (a). In count six he was charged with risk of injury to a minor in violation of General Statutes § 53-21. The original information alleged that the offenses were committed “on or about July, 1984,” in Glastonbury. On April 24,1985, the defendant filed a motion for a bill of particulars requesting specifically the “date and time of the offense.” On February 4, 1986, a substitute information was filed changing count two to the charge of an attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a), and changing count four to an attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-71 (a) (1). The allegation as to the time of the offense and the allegations in all of the other counts remained the same as charged in the original information.

In response to the defendant's motion, on February 10,1986, the state filed a bill of particulars alleging that the offenses occurred “during the late afternoon, early evening hours, on one of the last two weekends in July, 1984.” This response restricted the occurrence of the offenses to one of four possible dates, July 21, 22, 28 or 29, 1984. Prior to trial on February 10, 1986, the defendant filed a motion to dismiss the information on the ground that “as to date and time” the information was “not specific enough for him to assert an alibi defense, to confront his accuser, and in general to adequately present a defense.” On the same day the trial judge denied this motion..

On February 13, 1986, after the jury had been selected and sworn, the defendant filed another motion requesting further particulars and in the alternative to dismiss the charges. In this motion he renewed his request for a more specific date of the offenses. The defendant also alleged that he had evidence to support an alibi defense for three of the four days disclosed by the state’s response to his motion for a bill of particulars. After oral argument the trial court again denied the motion to dismiss.

On the following day, February 14,1986, counsel for the defendant provided the court with the affidavits of three alibi witnesses. The affiants ostensibly provided the defendant with alibis for July 22, 28 and 29,1984. No alibi witness or affidavit was offered for July 21, 1984, one of the days disclosed by the state as a possible date of the offenses. The trial court then reconsidered the defendant’s motion to dismiss, reversed its prior decision and granted the defendant’s motion to dismiss on February 14,1986. The case was dismissed before the presentation of any evidence. In rendering its decision the trial court stated: “I want it completely understood that [this decision] is in no way related to my opinion as to whether or not the defendant is guilty or not guilty of these charges. That is not my function . . . [this decision] is not to be considered by anyone [as] an opinion by me that I think that the defendant is innocent of these charges. My decision is not to be given any weight with regards to innocence or guilt.”

Immediately the state excepted to this ruling and requested permission to appeal. At the request of the defendant the case was dismissed with prejudice and over the exception of the defendant the court granted the state's request for permission to appeal. After the appeal had been filed in the Appellate Court the defendant moved to dismiss the appeal, claiming that the state's appeal was barred by double jeopardy. After oral argument the Appellate Court denied the motion without an opinion on April 10,1986. Thereafter, pursuant to Practice Book § 4028 this court transferred the appeal to itself.

The basic claim of the state on appeal is that the trial court erred in granting the defendant’s motion to dismiss the substitute information. We agree. We reject the defendant’s claim that the state’s appeal be dismissed on the ground of double jeopardy, or in the alternative that the action of the trial court be affirmed.

I

It is undisputed that the jury had been sworn but that the state had presented no evidence before the motion to dismiss was granted. Moreover, in its oral memorandum of decision the trial court went to great pains to disclaim any factual finding of the defendant’s guilt or innocence. Nonetheless, the defendant claims that “ ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ” United States v. Scott, 437 U.S. 82, 97, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977). In support of his claim the defendant asserts that it is the general rule in Connecticut that “[t]ime is not an essential ingredient of the crime of rape and it can be proved to have been committed at any time before the date of the information and within the period of the Statute of Limitations unless the date should become material in some way, as where a defense of alibi is to be made.” State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945).

The defendant claims that his defense is alibi and the date of the alleged crime is material to his defense. Generally, any time that an alibi is asserted as a defense to a criminal charge the precise time that the offense is alleged to have been committed is material to the defense. But the effectiveness of the alibi claim is a factual question that is best left to the trier for determination after all of the evidence has been presented. Moreover, we have never held that when the charges are sex related and alibi is the defense asserted that the trial court should dismiss the charges unless the state, in response to a request, can allege the precise date of the offenses. We particularly decline to go that far in this case because the state has specified that the offenses were committed on one of four possible days on two consecutive weekends. The fact that the defendant has proffered affidavits of three persons who support his alibi for three of the four days is of no benefit to the defendant at this stage of the proceedings. We decline to hold that as a matter of law affidavits submitted in support of an alibi defense are irrefutable and the charges against a person asserting such a defense under these circumstances must be dismissed. The defendant has proffered three affidavits in support of his alibi, one affidavit for each day of three of the four days specified by the state as being the possible date of the offenses. Since the state has not pinpointed the date that the offenses allegedly occurred the defendant claims that his alibi defense is prejudiced. There is no claim, nor is there any evidence that the state knows the precise date of the alleged offenses and is deliberately withholding it from the defendant. We recognize that “[t]he state has a duty to inform a defendant, within reasonable limits of the time when the offense charged was alleged to have been commited. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment to the United States constitution nor article first, § 8 of the Connecticut constitution requires that the state choose á particular moment as the time of an offense when the best information available to the state is imprecise. If [there was evidence that] the state had known to a reasonable certainty that the [sexual offenses were] committed within a narrower time frame than that provided in the bill of particulars, then the defendant’s claim- . . . would be more convincing.” State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084,104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). We also recognize that because the state has been unable to be more precise the defendant’s presentation of his alibi defense may be more burdensome and difficult. The burdens and difficulties, however, suffered by the defendant under these circumstances are not of the kind and magnitude to warrant dismissal of the charges.

' Moreover, the dismissal of the substitute information is contrary to the law which governs at this stage of the case. “On a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state.” State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). It is undisputed that prior to the dismissal of the substitute information the trial judge had before him for consideration only the record pleadings (the substitute information and motions) and the three affidavits submitted by the defendant for consideration in support of his motion to dismiss. At this stage of the proceedings the affidavits were not evidence. The affidavits are not evidence any more than the substitute information and bill of particulars filed by the state alleging that the offenses occurred on one of four possible dates of two consecutive weekends. The trial judge is obliged to evaluate.the state’s allegations in the substitute information and bill of particulars and the three affidavits submitted by the defendant in the light most favorable to the state. Id. Thus, the trial judge was required to assume that the state could prove the defendant guilty beyond a reasonable doubt of having committed the offenses on one of the four days specified in the substitute information despite the testimony, if any, of the defendant and the testimony of his witnesses in support of his alibi. Additionally, “[a]libi evidence, although commonly called a defense, is merely a rebuttal of the state’s evidence. State v. Bill, 146 Conn. 693, 696-97, 155 A.2d 752 (1959). 'The burden is upon the accused in the first instance to produce evidence in support of the alibi. Whenever the defense is so far proved that upon the whole evidence a reasonable doubt as to the guilt of the defendant is caused, he is entitled to an acquittal.’ Id., 697.” State v. Davis, 192 Conn. 739, 745-46, 474 A.2d 776 (1984).The trial court erred in granting the defendant’s motion to dismiss the substitute information.

II

Finally, the defendant claims that the dismissal of the information is the functional equivalent of an acquittal, and that the state’s appeal is barred by double jeopardy. While there is no comparable state constitutional provision to the double jeopardy provision of the fifth amendment to the United States constitution, we have nonetheless in large part “adopted the common-law rule against it as necessary to the due process guaranteed by [article first, § 8,] of our Constitution.” Kohlfuss v. Warden, 149 Conn. 692, 695,183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). Also, the double jeopardy provision of the fifth amendment has been made applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

To support his double jeopardy claim the defendant asserts that regardless of the label placed on the action of the trial court; United States v. Scott, supra, 97; in dismissing the substitute information after the jury was sworn, the judge implicitly made a factual finding that the state could not prove the date the offenses were committed, and under the Horton exception the date of the offense is material to his defense. State v. Horton, supra, 277. Thus, according to the defendant, the dismissal of the substitute information is functionally equivalent to an acquittal. This argument is attractive but not persuasive. The trial court in dismissing the substitute information specifically disclaimed making a factual determination of whether the defendant is guilty or innocent of the charges. We note that the dismissal was made not only over the exception of the state but at the persistent request of the defendant. We conclude, therefore, that the defendant has not presented any cognizable double jeopardy claim that would bar an appeal by the state to challenge the dismissal. “We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the [state] is permitted to appeal from such a ruling of the trial court in favor of the defendant.” United States v. Scott, supra, 98-99. The Scott court in reviewing double jeopardy implications when a trial is aborted on the initiative of the judge as contrasted with a trial verdict reversed on an appeal stated that: “ ‘[I]n the [second] situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his “valued right to have his trial completed by a particular tribunal.” ’ ” United States v. Scott, supra, 99-100, quoting United States v. Jorn, 400 U.S. 470, 484, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). The Scott court concluded that: “We think the same reasoning applies in pari passu where the defendant, instead of obtaining a reversal of his conviction on appeal, obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence. He has not been ‘deprived’ of his valued right to go to the first jury; only the public has been deprived of its valued right to ‘one complete opportunity to convict those who have violated its laws.’ Arizona v. Washington, [434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1975)].” United States v. Scott, supra, 100. Because the motion to dismiss was granted at the request of the defendant, and because no evidence has been presented to enable the trier to make any factual determination in this case, we conclude that the dismissal of the substitute information is not the functional equivalent of an acquittal, and the state’s appeal is not barred by the legal restraints of the law pertaining to the defendant’s double jeopardy rights.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion to dismiss and for further proceedings according to law.

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

Covello, J.,

dissenting. I respectfully disagree with the position adopted by the majority.

It is certainly true that an information is not ordinarily fatally flawed by its failure to set forth with absolute particularity the date and time of the offense alleged. See State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983); cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). This is especially so in cases involving youthful victims of sexual assaults who may be subconsciously repressing the details of such a traumatic incident or who by reason of their age do not think in terms of dates or time spans.

The fact remains, however, that an accused has a right to be informed of the nature and cause of the accusations against him and the absence of definite allegations may have constitutional implications. See State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987). Further, the rules of practice require that the state, upon motion by the defendant, shall disclose the date, time and place of the offense charged. See Practice Book § 832;

The majority resolves the uneasy tension between these competing social and legal interests by simply declaring that the state “does not have a duty . . . to disclose information which the state does not have.” State v. Stepney, supra. Further, “the burdens and difficulties” created by this absence of information are assigned to the defendant without explanation.

I submit that a fairer resolution is achieved by balancing these competing interests on a case-by-case basis by considering the many relevant factors. Both New Jersey and New York have used such a procedure in similar cases. See State in Interest of K.A.W., 104 N. J. 112, 515 A.2d 1217 (1986); People v. Morris, 61 N.Y.2d 290, 461 N.E.2d 1256, 473 N.Y.S. 2d 769 (1984).

Relevant factors in this analysis may include (1) the age, intelligence and. possible infirmities of the victim; (2) whether the crime charged is a single incident offense; (3) the length of time between the alleged offense and the defendant’s arrest; (4) compliance with the rules of practice; (5) whether there is an offer of an alibi defense; (6) the time frame within which the offense is ultimately claimed to have occurred; and (7) the adequacy of the investigatory process.

In the present case, the victim was fourteen years old at the time of the alleged assault. He was just three months short of his sixteenth birthday at the time of trial. The offense involved only a single incident and was alleged to have occurred in July, 1984, It was not reported until five months later. Although the original information is undated, it is fairly inferable that the prosecution commenced in early 1985, approximately six months after the alleged offense.

On April 24, 1985, the defendant filed a motion for a bill of particulars pursuant to Practice Book § 830 et seq. requesting the specific date and time of the offense. The state did not comply with the motion until the commencement of trial on February 10, 1986. The defendant then learned for the first time that the state contended that the offense occurred on either July 21, 22, 28 or 29, 1984.

On February 13, 1986, the state filed a motion for disclosure of the names of alibi witnesses pursuant to Practice Book § 763. In stark contrast to the state’s nine and one-half months delay in answering the defendant’s motion for a bill of particulars, the defendant responded the very next day with the names of these alibi witnesses, annexing sworn affidavits containing the content of their testimony. The affidavits placed the defendant elsewhere on three of the four days in issue.

The alleged victim here was a teenager, not a preschooler with an undeveloped sense of time. He had been in counseling for alcohol abuse and, for unknown reasons, failed to report the alleged offense for four and one-half months. The state, when asked for a bill of particulars, inexplicably and indefensibly sat on the request for nine and one-half months, thereby removing even further the victim’s apparently limited recollection from the time of the alleged offense. We can only speculate as to what he might have been able to remember if he had been promptly asked.

Having weighed all of these factors, the court below reached the correct result in dismissing the information. I would find no error.

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not susfendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-71. sexual assault in the second degree: class c felony: nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under [fifteen] years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in the custody of law of detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
      “(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances vhich expose the latter to a substantial risk of physical injury.
      “(b) Unlawful restraint in the first degree is a class d felony.”

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In the pleadings and briefs, the parties refer to this substitute information as an amended information. In this opinion, we will refer to this information as a substitute information.

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”


author: Shea, J.

text:
    Heather Struckman v. J. William Burns, Commissioner of Transportation
    (13136)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued October 8
    decision released December 15, 1987

      Eugene A. Cooney, with whom, on the brief, was Joseph A. LaBella, for the appellant (defendant).

      Ross T. Lessack, with whom, on the brief, was Edward T. Dodd, Jr., for the appellee (plaintiff).
   Shea, J.

The principal issue in this appeal is whether medical reports and bills may be admitted into evidence under General Statutes § 52-174 (b) without testimony from the medical practitioner who prepared them where the medical practitioner resides outside of this state, and, therefore, cannot be subpoenaed for a trial in Connecticut. We conclude that such reports and bills are admissible under the statute and find no error in the trial court’s ruling to that effect.

A jury verdict was returned in favor of the plaintiff in this action under General Statutes § 13a-144, the defective highway statute, against the defendant, J. William Burns, commissioner of transportation of the state of Connecticut. The jury could reasonably have found that the plaintiff was driving her car on Route 64 in Middlebury on the night of December 23, 1981. The plaintiff, the sole occupant of the vehicle, lost control and ran off the road after skidding on a patch of ice. The plaintiff in her complaint asserted that the defendant failed in various respects to maintain Route 64 in a reasonably safe condition. On appeal, the defendant does not challenge the jury’s finding that he did not properly maintain this section of Route 64 on the night of the accident.

The defendant does dispute in this appeal the amount of the damages awarded to the plaintiff. The jury returned a verdict in the amount of $35,000. Aside from the testimony of the defendant, the only evidence concerning the extent of her damages consisted of medical reports and bills from several out-of-state medical practitioners. During the trial the defendant objected to, and now challenges the admission of medical reports and bills from three chiropractors and two dentists, who resided in Florida, Georgia and New Jersey.

. On January 17, 1984, the plaintiff filed an offer of judgment in the amount of $14,250. Practice Book § 345. Following the verdict, the court awarded prejudgment interest in the amount of $13,716.47 under the authority of General Statutes § 52-192a. The defendant on appeal claims that the trial court erred in awarding prejudgment interest to the plaintiff because the state is not included within the general interest statute, and because the legislature has not otherwise agreed to waive the state’s sovereign immunity in this regard. We conclude that the trial court erred in assessing prejudgment interest against the state.

I

A

The defendant claims that the trial court erred in interpreting the scope of General Statutes § 52-174 (b) which provides: “In all actions for the recovery of damages for personal injuries or death, pending on October 1,1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist and that the report and bill were made in the ordinary course of business.” The defendant maintains that the statute applies only to the reports and bills of medical practitioners residing in this state, who are within the subpoena power of our courts, but not to those of nonresident medical practitioners who cannot be compelled to testify at a trial in this state.

In support of his argument, the defendant cites subsection (c) of the statute, which provides as follows: “This section shall not be construed as prohibiting either party or the court from calling the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist as a witness.” The defendant maintains that subsection (c) indicates that subsection (b) was meant to apply only to resident medical practitioners who are within our court’s subpoena authority. The defendant contends that subsection (b) must be read in light of subsection (c) because this court is obligated to read a statute as a whole. State v. Parmalee, 197 Conn. 158, 161-62, 496 A.2d 186 (1985).

The language of the statute does not restrict it to resident medical practitioners. Rather, it applies “[i]n all actions” and to “any treating physician.” General Statutes § 52-174 (b). This court does not have to look further than the statute for the legislative intent. “If the words of a statute are clear, the duty of a reviewing court is to apply the legislature’s directive since where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended, but what intention it expressed by the words that it used. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153,159, 454 A.2d 1258 (1983); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980).” Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983). If the General Assembly intended to require the actual availability of the treating physician in the jurisdiction as a prerequisite to the admissibility of his medical report and bill for treatment, it could have explicitly so stated. Courts may not “ ‘read into clearly expressed legislation provisions which do not find expression in its words.' ” Brunswick Corporation v. Liquor Control Commission, 184 Conn. 75,81, 440 A.2d 792 (1981), quoting International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974).

We agree with the defendant that a statute should be read as a whole. Subsection (a) of § 52-174 allows medical reports and bills to be admitted even if the medical practitioner or engineer who prepared them is beyond the effective subpoena power of our courts and is unable to testify at trial where that person is deceased, or is disabled, either mentally or physically. In light of subsection (a) it cannot be said that subsection (c) necessarily requires us to construe subsection (b) as excluding nonresident medical practitioners simply because they are not subject to a subpoena in this state.

The defendant also argues that the legislature clearly intended when it passed No. 77-226 of the 1977 Public Acts, which created General Statutes § 52-174 (b) in its present form, to give defendants or the court a right to subpoena the treating medical practitioner under subsection (c). Representative Ernest Abate stated: “In no event, however, if the report is in fact admitted without testimony of the physician, is the attorney precluded in fact from calling the physician in a different stage in the trial.” 20 H.R. Proc., Pt. 8, 1977 Sess., p. 2994.

Immediately after Representative Abate made this statement, however, Representative Vincent Villano clarified how this bill would apply to medical practitioners who no longer resided in the state. He said: “There’s a lot of miscarriage of justice [that] occurs in civil action cases where the doctors who have treated a patient, move out of the state or move out of the town. Some are staff doctors in hospitals. They spend two or three years and they’re gone, and their personal reports, while the hospital record is there, their personal reports are not, not . . . to be introduced in evidence. And I say this will remedy a great deal of injustice that occurs when the doctor moves and his testimony cannot be introduced in the trial.” Id. The clear implication of Representative Villano’s remarks was that the reports and bills of a medical practitioner would be admissible even if the medical practitioner had moved outside of the state and, therefore, was beyond the subpoena power of our courts. No one in the legislature raised any objection to Representative Villano’s remarks, and the house voted immediately thereafter in favor of the bill. The legislative history of subsection (b) supports the conclusion that it was meant to apply to nonresident medical practitioners.

There is additional evidence that § 52-174 (b) is meant to include nonresident treating medical practitioners. The General Assembly by enacting Public Acts 1978, No. 78-140, removed from an earlier version of § 52-174 (b) a provision which required the clerk of the court upon motion of a party or the court to subpoena the medical expert whose written report was being offered under the terms of the statute. Further, § 52-174 (b) characterizes such medical reports as “business entries” and the legislature in General Statutes § 52-180 (b) has provided that such business entries ought not be rendered inadmissible either by a party’s failure to produce the person or persons making the writing or by a party’s failure to show that such persons are unavailable as witnesses.

In view of its legislative history and wording, we hold that § 52-174 (b) permits the admission of the medical reports and bills of nonresident treating medical practitioners even if they are beyond the subpoena power of our courts, and cannot be called to testify at a trial.

B

The defendant contends that if General Statutes § 52-174 (b) allows plaintiffs to submit into evidence the medical reports and bills of nonresident medical practitioners then the statute violates the defendant’s right of cross-examination under the United States and Connecticut constitutions. We find no violation of either our federal or state constitution.

As the defendant maintains, the right of cross-examination does have a constitutional basis in the confrontation clauses of our federal and state constitutions. U.S. Const., amend. VI; Conn. Const.; art. I, § 8. These provisions, however, are expressly limited to criminal prosecutions. U.S. Const., amend.- VI; Conn. Const., art. I, § 8. In the context of a civil case this court has said: “The right of cross-examination is not a privilege but is an absolute right and if one is deprived of a complete cross-examination he has a right to have the direct testimony stricken.” Gordon v. Indusco Management Corporation, 164 Conn. 262, 271, 320 A.2d 811 (1973). The court in Gordon, however, appears to have been referring to a common law right rather than a constitutional right. We need not decide in this case, however, whether the provisions of our federal and state constitutions against depriving a person of his property without due process of law afford some protection against legislative restriction of cross-examination in civil cases. U.S. Const., amend. XIV, § 1; Conn. Const., art. I, §§ 8, 10. Without reaching the constitutional issue, we conclude that § 52-174 (b) does not significantly curtail the right of cross-examination because it does not preclude taking the deposition of a nonresident medical practitioner whose report or bill may be offered into evidence at a trial.

In enacting § 52-174 (b), the legislature undoubtedly considered the prevailing evidentiary treatment of hospital records. Hospital records have been considered business records for many years in Connecticut and are admissible when the three requirements for business records under General Statutes § 52-180 are satisfied. Kelly v. Sheehan, 158 Conn. 281, 284-85, 259 A.2d 605 (1969); D'Amato v. Johnston, 140 Conn. 54, 58-62, 97 A.2d 893 (1953). The records of hospitals receiving state aid may be admitted into evidence under General Statutes § 4-104 upon certification of three requirements by the record-keeper. State v. Jeustiniano, 172 Conn. 275, 280-81, 374 A.2d 209 (1977).

Both of these statutes allow hospital records containing expert opinions concerning diagnosis to be admitted without the in-court testimony of the treating medical practitioner. Section 4-104 provides in part: “Any and all parts of any such record or copy, if not otherwise inadmissible, shall be admitted in evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of the record room of the hospital or his authorized assistant indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter.” Section 52-180 (b) provides: “The writing or record shall not be rendered inadmissible by (1) a party’s faitee to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.” We have held that hospital records, including medical opinions contained therein relevant to diagnosis; D’Amato v. Johnston, supra, 61; may be admitted into evidence without the testimony of the persons who made the entries even in a criminal proceeding, and have held that this procedure does not violate a defendant’s right of cross-examination. State v. Jeustiniano, supra.

The defendant contends that there is a significant difference between the procedures we have approved pursuant to § 4-104 and § 52-180 compared to those set forth in § 52-174 (b). Section 52-180 has been interpreted to require the proponent to show: (1) that the document was made in the regular course of business; (2) that it was the regular course of business to make such a record; and (3) that the record was made when the act, transaction or event occurred or shortly thereafter. C. Tait & J. LaPlante, Connecticut Evidence (1976) § 11:14, p. 227. Section 4-104 imposes the same three requirements. Section 52-174 (b) permits medical reports and bills to be “admitted into evidence as a business entry,” but does not require that these three prerequisites be established.

The defendant argues that § 52-174 (b) violates his right of cross-examination because the statute does not require that a foundation be established for the reliability of the evidence in the medical reports and bills. He maintains that § 4-104 and § 52-180 do not infringe upon a defendant’s right of cross-examination because the reliability of the evidence in hospital records is guaranteed by the three-pronged requirement. He concedes that the bills admitted as exhibits would qualify as business records. The defendant, nonetheless, contends that the medical reports were not prepared in the ordinary course of business, but for litigation. The same objection could be raised with respect to § 52-174 (a), however, which allows the report of a deceased or disabled physician or engineer to be admitted into evidence even when a party is unable to call the person who wrote the report into court to testify. State v. Piskorski, 177 Conn. 677, 731-33,419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Despite the impossibility of cross-examining dead or disabled witnesses to whom the statute applies; the statute permits their reports to be introduced.

Section 52-174 (b) does not deprive a defendant of his right of cross-examination. While it is true that the defendant does not have the power by subpoena to force an out-of-state witness to travel to Connecticut for trial, General Statutes § 52-148c allows a party to apply to the court for a commission to take the deposition of an out-ofrstate witness. Once the commission is granted by the court in this state, a subpoena can be obtained in the proposed deponent’s state to force the deponent to attend a deposition in his state.

The defendant recognizes that his right of cross-examination may be implemented by the use of a deposition, but is concerned with the costs associated with deposing an out-of-state witness. If the plaintiff had chosen to depose the nonresident medical practioners rather than introduce their reports at trial, the defendant could hardly have objected on the ground that he would be obliged to incur additional expenses for travel in order to exercise his right of cross-examination. At least for one in the position of the defendant, to whom as an agent of the state its ample resources are available, the additional expense involved in taking a deposition is not a matter of constitutional concern.

II

The defendant argues that even if the reports of nonresident medical practitioners are admissible, the trial court erred in this case by admitting such reports where it had no evidence that the persons whose opinions the reports contained were in fact competent experts.

Ordinarily a trial court must determine the qualifications of a proposed expert before he may testify. See McKiernan v. Caldor, Inc., 183 Conn. 164,167-68,438 A.2d 865 (1981). The legislature, however, may allow the introduction of the opinion of an expert without the need to lay a detailed foundation as to qualifications. Hospital records can be admitted into evidence without any live testimony about whether the persons who prepared or signed the records were qualified to render the expert opinions therein if the three requirements for business records are met. General Statutes §§ 52-180 and 4-104.

The medical reports at issue were on the letterhead of each medical practitioner or had some other identifying mark and were each signed by a medical practitioner. Section 52-174 (b) states: “[I]t shall be presumed that the signature on the report is that of the treating [medical practitioner] . . . and that the report and bill were made in the ordinary course of business.” The legislature has determined that all that is needed to comply with the statute is the signature of the treating medical practitioner. No requirement exists concerning qualifications. A defendant may, however, challenge the qualifications of an out-of-state medical practitioner at a pretrial deposition, and, therefore, his right of cross-examination is not abridged by this provision of the statute.

Ill

The defendant argues that even if the reports of nonresident medical practitioners can be admitted, the trial court erred in this case by admitting these reports when they contain expert opinions that are not stated with the requisite standard of reasonable medical probability. In his brief, the defendant focused on the reports of two medical practitioners, Milo E. Hermann and Keith D. Werner. Hermann, a Florida dentist, stated in his report: “In my opinion, although not all the disease presently found in this patient’s dentition is a direct result of the car accident, it was the predisposing factor in the resultant inability to provide the necessary care needed for prevention of what has occurred dentally.” Werner, a New Jersey chiropractor, gave the following opinion: “Mrs. Struckman received cervical and lumbosacral myofascitis from the accident and with her long history of back surgery, etc. there is no way of telling the extent of the damage but I certainly believe that there is some permanent ligamentous damage in her back.” In a subsequent medical report, Werner wrote: “Her back was still giving her pain in the areas that were injured at the time of the automobile accident. Unfortunately, there has been very little improvement which could indicate this problem could be one that could continue for the duration of her life.” (Emphasis added.)

Section 52-174 (b) in no way eliminates a plaintiffs burden of establishing the relevancy of the expert opinions expressed therein. “To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which he claims resulted from it. Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562 [1923]. This causal connection must rest upon more than surmise or conjecture. Witkowski v. Goldberg, 115 Conn. 693, 696,163 A. 413 [1932]; Green v. Stone, 119 Conn. 300, 306,176 A. 123 [1934]. A trier is not concerned with possibilities but with reasonable probabilities. Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669, 672, 30 A.2d 919 [1943]. The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question. Bates v. Carroll, supra, 679.” Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953).

Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. Healy v. White, 173 Conn. 438, 443-46, 378 A.2d 540 (1977). To be reasonably probable, a conclusion must be more likely than not. Id., 444. Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45,46, 502 A.2d 952 (1986); see also Ralph v. Mr. Paul’s Shoes, Inc., 572 S.W.2d 812, 814 (Tex. 1978). When reports are the substitute for testimony, the entire report should be examined, not only certain phrases or words. Aurora v. Miami Plumbing & Heating, Inc., supra.

The defendant contends that an expert in his testimony or in a report must employ the “magic words” that his opinion was “reasonably probable.” We reject the proposition that certain formulaic words are essential when an expert renders an opinion. Id. “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372 (1918). As long as it is clear that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for a jury’s consideration. See Slep-ski v. Williams Ford, Inc., 170 Conn. 18, 22-23, 364 A.2d 175 (1975).

It is not necessary for this court to determine whether the disputed portions of the reports met the standard of reasonable probability. The defendant during the trial simply objected to all but one of the reports offered by the plaintiff and'failed to make more specific objections. The party opposing the admission of a medical report must make a specific objection to exclude a particular portion of that report. “The defendants also press their claim that it was error to admit the entire record without excluding those parts which were irrelevant to a determination of the issues in the case. Though this court has recognized that it may be necessary to exclude parts of an otherwise admissible record; Marko v. Stop & Shop, Inc., 169 Conn. 550, 561, 364 A.2d 217 [1975]; Temple v. F.W. Woolworth Co., 167 Conn. 631, 633,356 A.2d 880 [1975]; Ianni v. Daily, 153 Conn. 445, 217 A.2d 707 [1966]; the principle is not relevant to this case since counsel failed, at trial, to designate the portions of the record he found objectionable. For this court now to rule parts of the record inadmissible would require us to lay down a rule that the trial court is under a duty to sift through the record and, acting on its own, exclude objectionable evidence.” State v. Jeustiniano, supra, 279-80. An opposing party must explain why he believes a particular passage in a medical report is irrelevant, is speculative, or is otherwise inadmissible. Id.; Ianni v. Daily, supra, 449.

IV

The defendant’s final claim is that the trial court erred in awarding the plaintiff prejudgment interest. The defendant argues that our statute, allowing inter-ést where a defendant has failed to accept an offer of judgment equal to or less than the amount recovered; General Statutes § 52-192a; does not apply to the state because the legislature has not expressly waived the state’s sovereign immunity in this area. We agree.

General Statutes § 13a-144 allows “[a]ny person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway . . . to recover damages sustained thereby against the commissioner in the superior court.” The statute specifically excludes the imposition of “costs or judgment fee[s]” against the state. The plaintiff argues that the legislature has waived its sovereign immunity in this variety of civil action for all types of damages except costs or judgment fees. The plaintiff contends that the legislature would have expressly mentioned interest along with costs and judgment fees if it meant to exclude that type of damages from its waiver of sovereign immunity. Section 52-192a allows an offer of judgment to be filed “[ajfter the commencement of any civil action.” The plaintiff argues that when these two statutes are read together the clear implication is that the legislature has waived its sovereign immunity to exempt the state from interest awards.

It is a matter for the legislature, not this court, to determine when our state’s sovereign immunity should be waived. “The question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination. Rogan v. Board of Trustees, 178 Conn. 579, 582, 424 A.2d 274 (1979); Bergner v. State, 144 Conn. 282, 286-87,130 A.2d 293 (1957).” Duguay v. Hopkins, 191 Conn. 222, 228, 464 A.2d 45 (1983). Sovereign immunity may be waived only through a statute. Id. Any statutory waiver of immunity must be narrowly construed. Id. “The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed ‘by the use of express terms or by force of a necessary implication.’ Baker v. Ives, [162 Conn. 295, 298,294 A.2d 290 (1972)]; Murphy v. Ives, [151 Conn. 259, 262-63, 196 A.2d 596 (1963)].” Id.

At best, the plaintiff has shown that there is some ambiguity concerning whether the “damages” referred to in § 13a-144 include interest. The fact that the legislature specifically excluded costs and judgment fees but not interest may suggest that it meant to waive the state’s sovereign immunity for interest under this statute. It is also quite possible that the legislature thought that interest could be awarded only if it were specifically mentioned in the statute, or that the legislature simply failed to consider whether interest should be awarded. In the absence of clear legislative intent, this court will not interpret a statute as waiving the state’s sovereign immunity.

Section 52-192a permits an offer of judgment in “any civil action.” A literal reading of this statute might suggest that any plaintiff may collect prejudgment interest from the state. When a generalized statute allows plaintiffs to collect certain varieties of damages in particular types of civil actions, however, it does not waive a state’s sovereign immunity in that area unless there is an express waiver. In State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978), the issue was whether General Statutes § 52-257, which allows costs to be taxed against civil parties, applied to the state. We said: “In the absence of a specific statutory provision allowing the taxation of costs against the state, this court is required to adhere to the widely recognized principle that statutes relating to costs and authorizing the imposition of costs in various kinds of actions or proceedings, or under various prescribed circumstances, which do not in express terms mention the state, are not enough to authorize imposing costs against the state. State ex rel. Foote v. Bartholomew, 111 Conn. 427,150 A. 308 [1930]; annot., 72 A.L.R.2d 1399, § 9. We conclude that the general language of § 52-257 governing taxable costs does not apply to the state.” Id.

Courts in many other jurisdictions have held that a statute that generally allows interest awards does not waive a state’s sovereign immunity unless there is an express provision to that effect in the statute. McKee-Berger-Mansueto, Inc. v. Board of Education, 626 F.2d 559, 566 (7th Cir. 1980) (applying Illinois law); Department of Health & Social Services v. Crossan, 424 A.2d 3, 5 (Del. 1980); Brown v. State Highway Commission, 206 Kan. 49, 51-52, 476 P.2d 233 (1970); 81A C.J.S., States § 268 (1977); 72 Am. Jur. 2d, States § 89 (1974); annot., 24 A.L.R.2d 928, 974 (1952). We agree with this view.

There is error in part, and the case is remanded to the trial court with direction to modify the judgment so as to eliminate the award of $13,716.47 in prejudgment interest.

In this opinion the other justices concurred.

       General Statutes J 51-la (b) limits the jurisdiction of our state courts to the boundaries of this state: “The territorial jurisdiction of the supreme court, the appellate court, and the superior court shall be coextensive with the boundaries of the state.”

       “[General Statutes] Sec. 52-174. admissibility of records and REPORTS OF CERTAIN EXPERT WITNESSES AS BUSINESS ENTRIES, (a) In all actions for the recovery of damages for personal injuries or death, (1) if a physician, dentist, chiropractor, osteopath, natureopath, podiatrist, professional engineer or land surveyor has died prior to the trial of the action, or (2) if a physician, dentist, chiropractor, osteopath, natureopath, podiatrist, professional engineer or land surveyor is physically or mentally disabled at the time of the trial of the action to such an extent that he is no longer actively engaged in the practice of his profession, the party desiring to offer into evidence the written records and reports of the physician, dentist, chiropractor, natureopath, osteopath or podiatrist concerning the patient who suffered the injuries or death and the reports and scale drawings of the professional engineer or land surveyor concerning matter relevant to the circumstances under which the injuries or death was sustained shall apply to the court in which the action is pending for permission to introduce the evidence. Notice of the application shall be served on the adverse party in the same manner as any other pleading. The court to which the application is made shall determine whether the person is disabled to the extent that he cannot testify in person in the action. Upon the court finding that the person is so disabled, the matters shall be admissible in evidence as a business entry in accordance with the provisions of section 52-180 when offered by any party in the trial of the action.”

       The defendant did not object to the admission of a report by Dr. P. G. Batson, an orthopedic surgeon, dated December 29,1983, and does not challenge its relevancy in this appeal.

       “[General Statutes] Sec. 52-192a. offer of judgment by plaintiff, acceptance by defendant, computation-of interest, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the 'offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”