author: Glass, J.

text:
    State of Connecticut v. James Y. Hope
    (13720)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued May 4
    decision released July 10, 1990

      Hubert J. Santos, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Glass, J.

The dispositive issue in this appeal is whether the state is barred by the double jeopardy clause from prosecuting the defendant for aiding and abetting murder after the defendant had been acquitted of conspiracy to commit capital felony murder and the lesser included offense of conspiracy to commit murder. Because an understanding of the facts of this case is necessary to examine its procedural history, we shall summarize the relevant evidence presented at the defendant’s first trial, prior to detailing the procedural history of the case.

Geraldine Burke wanted to have her third husband, Donald Burke, to whom she had been married for two years, killed because of his alleged maltreatment of her. In furtherance of this plan, Geraldine Burke asked her daughter, Tammy Pate, to find someone to commit the murder. In June, 1981, Tammy Pate began to date John McGann, and subsequently introduced McGann to her mother. In July, 1981, Geraldine Burke asked McGann whether he knew anyone whom she could pay to kill her husband. A few days later, McGann told Geraldine Burke that he had found someone to commit the murder and that it would cost $4000. Geraldine Burke then borrowed $3500 from a neighbor, which she gave to McGann with the understanding that McGann would advance the balance of $500 himself to make $4000.

McGann had spoken previously to an individual named George Rooney, an auto mechanic in Groton, in regard to having someone eliminated. After four or five meetings, Rooney told McGann that the job could be done by someone in Rhode Island for $3000. In July, 1981, McGann gave Rooney $1500 in cash saying he would return a few days later with the balance of $1500. At that time, McGann also gave Rooney a photograph of Donald Burke that had Burke’s vehicle registration number and the type of vehicle that he drove written on the back. Two or three days later, McGann saw Rooney again and paid him the outstanding $1500. After paying Rooney, McGann had a number of bills left over, which he put back in his pocket. Rooney then told McGann that the job would take two or three weeks to complete.

On July 20,1981, shortly after Geraldine Burke had given McGann the $3500, she entered the hospital for treatment of an ulcer. It had been planned that Donald Burke would be murdered while she was in the hospital. Towards the end of her stay, however, McGann told her that it looked as though Rooney might not have Donald Burke killed and, if that were the case, he would do the job himself. Upon leaving the hospital on August 6, 1981, Geraldine Burke went with Tammy Pate to a picnic at a friend’s house on Niantic River Road in Waterford. McGann and the defendant attended the picnic as well. Throughout June and July, 1981, McGann, a friend of the defendant, had told him of the situation at the Burke house and the plot to kill Donald Burke. While at the picnic, Geraldine Burke claimed that the defendant told her that he would rather kill Donald Burke himself because McGann would “screw it up” and because he (the defendant) could “kill [Donald Burke] with just one blow” as a result of his knowing some type of karate.

Later that day, McGann and Geraldine Burke left the picnic and walked across the street to the defendant’s house to use the phone. Tammy Pate and the defendant also walked over to the defendant’s house and arrived there just as McGann was getting off of the phone. McGann said that he did not think he could get the money back from Rooney, and added that, if he did not get the money back, he would do the job himself. That night, McGann mentioned to the defendant drugging, strangling or shooting Donald Burke.

On August 8,1981, at approximately 2:30 p.m., Geraldine Burke and Tammy Pate picked up McGann at his house and drove to Danny’s Cafe, a bar in Niantic. McGann said to Geraldine Burke that “[t]onight’s the night,” and a discussion was held about drugging Donald Burke with valium in order to kill him. Later, they returned to the Burke house where Geraldine Burke filled a capsule with four crushed tablets of valium with the intention of giving the capsule to Donald Burke. Tammy Pate then gave McGann a ride home. Donald Burke returned home from work around 5 or 5:30 p.m. and Tammy Pate gave him a large glass of wine and he soon fell asleep. At about 6 or 6:30 p.m., the defendant picked up McGann and went to Danny’s Cafe. At about 10 p.m., Tammy Pate joined McGann, the defendant and John Pate, Jr., Geraldine Burke’s son, at Danny’s Cafe.

McGann asked Tammy Pate to phone her mother from Danny’s Cafe. Geraldine Burke told Tammy Pate on the phone that Donald Burke had fallen asleep, and Tammy Pate then handed the phone to McGann. As a result of her telephone conversation with McGann, Geraldine Burke took her husband’s .22 caliber pistol from his truck, put it in the back seat of her car, and drove to the parking lot of Mitchell’s Grocery Store with her ex-sister-in-law, Carrol Pate. While inside Danny’s Cafe, McGann told the defendant that he was going to kill Donald Burke and asked if he would help move the body. The defendant, McGann and John Pate, Jr., then went outside Danny’s Cafe, where, according to John Pate, Jr., the defendant told him that he and McGann were going to his house to kill his stepfather, Donald Burke. McGann, the defendant and John Pate, Jr., then walked over to the parking lot of Mitchell’s Grocery Store to meet Geraldine Burke, where, according to Geraldine Burke, the defendant said to her: “I told your son Pm going to kill . . . your husband tonight. . . . He has the right to know.” McGann then got the pistol out of Geraldine Burke’s car and was driven by the defendant to the Burke house.

Geraldine Burke left the parking lot with Carrol Pate, stopped at a Burger King, and met the defendant and McGann back at her house. The defendant was waiting at the back door and entered the house with Geraldine Burke and Carrol Pate. According to Geraldine Burke, the following sequence of events then transpired. The defendant asked which room was Donald Burke’s, and Geraldine Burke said that it was down the hall. The defendant led Geraldine Burke down the hall and told her to go into the bedroom to see if Donald Burke was asleep. The defendant then told Geraldine Burke to get into the living room, and as she walked away she heard blows being struck in the bedroom. At that time, McGann went into Donald Burke’s bedroom and a shot was fired. McGann then left the bedroom to unjam the pistol, and Geraldine Burke once again heard the sound of blows being struck in the bedroom. McGann returned to the bedroom, and Geraldine Burke heard more shots and blows. Finally, Geraldine Burke heard McGann say “[s]top hitting him; he’s dead,” and the defendant say “[h]e died hard, didn’t he?” The defendant then ordered Geraldine Burke to get something to cover Donald Burke’s body, and she returned with an afghan and a plastic bag. The defendant and McGann put Donald Burke’s body into the plastic bag, covered it with the afghan, and dragged it outside and put it into Donald Burke’s truck. The defendant and McGann then proceeded to remove other incriminating evidence from the house.

The defendant, however, testified that he never told Geraldine Burke that he could or would kill Donald Burke, and that he never told John Pate, Jr., that he was going to kill Donald Burke, but rather told him only that Geraldine Burke and McGann were going to kill Donald Burke. In addition, the defendant testified that, although he went to the Burke residence knowing of the plan by McGann and Geraldine Burke to kill Donald Burke, he had no intention of committing murder. Instead, he claimed that he had actually offered Geraldine Burke money to forget her plan to have Donald Burke killed, and that he drove McGann to the Burke house in the hope of persuading him and the others not to kill Donald Burke. Thus, while the defendant admitted to being present at the Burke house when Donald Burke was killed, he denied beating Donald Burke or even being present in the room when Donald Burke was killed. Rather, he claimed that he was sitting at the kitchen table with Carrol Pate when he heard shots being fired. In sum, the defendant denied “that he assisted McGann in the killing of [Donald] Burke or directly participated in the killing or engaged in concerted action with McGann and [Geraldine] Burke to commit murder.” Moreover, the defendant explained his actions of moving Donald Burke’s body and of secreting evidence after the murder as ones of fear and panic.

To buttress further its theory that the defendant was a direct participant in the murder, the state called Henry Lee, chief of the Connecticut state police forensic crime laboratory. Lee testified that certain blood splatter patterns found on the back of the defendant’s blue jeans indicated that he was in close proximity to the body at the time of the murder. The defense countered Lee’s testimony with its own blood splatter expert’s testimony that the patterns indicated that the defendant was not near the body at the time of the killing. The state also called Catherine Galvin, then Connecticut’s chief medical examiner, who testified that bruises and contusions found on Donald Burke’s face were consistent with his being beaten before being murdered. The defense, however, countered this testimony with testimony from its own pathologist, who testified that the injuries to Donald Burke’s face were the result of gunshot wounds to the head. In addition, the defendant testified that he was intoxicated on the night of Donald Burke’s murder.

The jury was presented with all of this evidence as a result of proceedings that began on October 13,1981, when the state filed a two count indictment charging the defendant with the crimes of conspiracy to commit capital felony murder in violation of General Statutes §§ 53a-48 (a) and 53a-54b (2) and capital felony murder in violation of General Statutes §§ 53a-54b (2) and 53a-8. On October 19,1981, the defendant moved to dismiss both counts, claiming, inter alia, that the capital felony count was defective “for the reason that one cannot be guilty of capital felony murder on the basis of aiding and abetting capital felony murder.”

On December 21, 1981, the defendant filed his second motion to dismiss. Specifically, he argued that the conspiracy count, count one, failed to allege an overt act. In addition, he contended that count two, the capital felony count, was also defective. In particular, he noted: (1) that § 53a-54b (2) requires that a person commit the crime of murder after being hired to do so for pecuniary gain; (2) that count two alleged that his co-defendant, Geraldine Burke, hired John McGann, but that the murder was committed by Hope; and (3) that the count failed to allege that Geraldine Burke had hired him. Consequently, the defendant argued that the count failed to allege the offense of capital felony murder in violation of § 53a-54b (2). The trial court rejected the defendant’s claim as to count two, but dismissed count one, charging conspiracy, because of its failure to allege an overt act.

On July 15, 1982, however, the grand jury returned a new conspiracy indictment, alleging the following: “In furtherance of the conspiracy and to effect the objects thereof, one or more of the following overt acts were committed:

“1. In July, 1981, the exact date being to the Grand Jury unknown, Geraldine Burke borrowed three thousand five hundred ($3,500) dollars from a neighbor to pay for the murder of Donald C. Burke.

“2. Several days thereafter, the exact date being to the Grand Jury unknown, Geraldine Burke gave the money to John McGann.

“3. Near the end of July or early August, 1981, the exact date being to the Grand Jury unknown, James Y. Hope told Geraldine Burke how he would kill the victim, Donald Burke.

“4. On August 8, 1981, at the directions of John McGann, Geraldine Burke got the victim, Donald Burke’s, handgun from Donald Burke’s truck.

“5. On August 8,1981, in the night hours or the early morning of August 9, 1981, Geraldine Burke, James Y. Hope and John McGann met in downtown Niantic and John McGann got Donald C. Burke’s handgun from Geraldine Burke and the three parties arranged to meet at the Burke residence in the early hours of August 9, 1981.

“6. In the early morning hours of August 9, 1981, Geraldine Burke, James Y. Hope and John McGann entered the Burke residence, and the said Donald C. Burke was murdered by one or more of said persons, Geraldine Burke, James Y. Hope or John McGann, who with intent to cause his death, caused the death of said Donald C. Burke.”

The jury selection process commenced on May 3, 1983, and lasted for approximately five weeks. During that time period, defense counsel advised the court that he believed that both counts of the indictment were defective. In an attempt to resolve the ongoing dispute, the state filed, on June 1, 1983, a motion captioned: “Motion for Judicial Determination of Applicability of Section 53a-54b (2) in View of Offer of Proof by the State of Connecticut.” The motion sought a ruling from the court as to the culpability of a defendant for capital felony murder in violation of § 53a-54b (2) when that defendant was not hired to commit the murder, but acted as an accessory or coprincipal to the murder. The state conceded in its motion that it had no evidence that the defendant was hired to kill Donald Burke or that he hired anyone to do so. This was the precise issue the defendant had raised in his second motion to dismiss dated December 21, 1981. The trial court, however, took no action regarding the capital felony count at that time.

After the jury had been sworn, on June 29,1983, the defendant filed his third motion to dismiss the capital felony count and raised again the issue that he had raised in his pretrial motions to dismiss, to wit: That the capital felony count failed to allege that the defendant was hired to kill Donald Burke and that there was no allegation that the alleged hiree, John McGann, murdered Donald Burke. After receiving briefs from the parties, the trial court dismissed the capital felony count with prejudice on July 19, 1983, and advised the parties that a detailed memorandum explaining the basis of its decision would be filed at a later date. The defendant’s trial proceeded as to the first count, however, and on August 9,1983, the jury acquitted him of conspiracy to commit capital felony murder and the lesser included offense of conspiracy to commit murder. The trial court then filed its memorandum of decision on August 19, 1983, dismissing, with prejudice, the capital felony count, as well as the lesser included murder count. The state sought and was granted permission to appeal the dismissal of the capital felony count, but before the state’s appeal was heard this court decided State v. McGann, 199 Conn. 163, 506 A.2d 109 (1986). As a result of the court’s decision in McGann, the state’s appeal was dismissed as moot. See State v. Hope, 203 Conn. 420, 524 A.2d 1148 (1987).

On June 1, 1987, the state filed a substitute information charging the defendant with the crime of murder in violation of General Statutes §§ 53a-54a and 53a-8. Specifically, the state charged that the defendant “while acting in concert with Geraldine Burke and John McGann did, with intent to cause the death of another person, Donald C. Burke, cause the death of said Donald C. Burke.” On November 24, 1987, the defendant moved to dismiss the information on double jeopardy and collateral estoppel grounds and for the additional reason that the murder count had been dismissed with prejudice on July 19,1983. In response, on April 19, 1988, the state filed an amended substitute information, that again charged the defendant with murder in violation of §§ 53a-54a and 53a-8, but this time alleged: “JAMES Y. HOPE at Waterford, Connecticut, with intent that the death of another person, Donald C. Burke, be caused, intentionally aided Geraldine Burke and John McGann in the causing of the death of said Donald C. Burke.” On May 2, 1989, the trial court denied the defendant’s motion to dismiss, and the defendant then filed this appeal.

On appeal, the defendant argues that the trial court should have granted his motion to dismiss: (1) because aiding and abetting murder and conspiracy to commit murder are the same offense for double jeopardy purposes; (2) because his prosecution for aiding and abetting murder is barred by principles of collateral estoppel as embodied in the double jeopardy clause; and (3) because the murder count against him had previously been dismissed with prejudice. We agree with the defendant’s contention that the trial court should have granted his motion to dismiss because his prosecution for aiding and abetting murder is barred by principles of collateral estoppel as embodied in the double jeopardy clause.

I

The state maintains that the defendant is barred from asserting a claim of collateral estoppel because he did not move to dismiss the second count of the indictment until after the jury was sworn. See Lee v. United States, 432 U.S. 23, 31-34, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 607, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976). The crux of the state’s argument is that the defendant’s motion to dismiss on June 29,1983, after the jury had been sworn, was not based on the same grounds as the defendant’s earlier motions to dismiss that were filed prior to trial. We are not persuaded by the state’s contention.

Specifically, in his first motion to dismiss, dated October 19,1981, the defendant argued: “7. As to the Second Count, for the reason that one cannot be guilty of capital felony murder on the basis of aiding and abetting capital felony murder.” In his second motion to dismiss, dated December 21, 1981, the defendant argued: “3. As to count two for the reason that by its language Section 53a-54b requires that a person commit as a principal (and not as an aider or abetter) one of the eight substantive crimes listed. Specifically, Section 53a-54b (2) requires that the defendant commit murder after being hired to commit same for pecuniary gain. Count two alleges that co-defendant Burke hired co-defendant McGann to commit murder and that the actual murder was committed by ‘a person or persons, including James Y. Hope.’ There is no allegation that Burke hired Hope. Consequently, the count fails to allege the offense of capital felony murder.” Finally, in his third motion to dismiss, dated June 29, 1983, the defendant asserted: “1. Count two alleges a violation of Connecticut Gen. Stat. § 53a-54b (2), capital felony murder. The indictment alleges that Geraldine Burke hired John McGann for his pecuniary gain, for the purpose of causing the death of her husband, Donald C. Burke. The indictment fails to allege, however, that John McGann murdered Donald C. Burke. Section 53a-54b (2) requires that the ‘hiree’ commit the murder. The indictment alleges that Donald C. Burke ‘was murdered by a person or persons, including said James Y. Hope. . . .’

“The Defendant, of course, has taken the position that the person hired must be ‘a defendant,’ i.e. James Y. Hope, (see paragraph 3), a position rejected by the [trial] Court.

“2. Section 53a-54b (2) requires that the person hired be a ‘defendant.’ This is an essential element of the crime. The indictment fails to allege that McGann is ‘a defendant.’

“3. By use of the phrase ‘a defendant’ Section 53a-54b (2) requires that the person hired be the defendant on trial, i.e. James Y. Hope. The indictment fails to allege this element of the crime. Instead, it alleges that Geraldine Burke hired John McGann.”

Thus, the defendant’s position was consistent throughout. He argued that count two of the indictment did not allege that the murder was committed by the hiree. In short, the defendant contended prior to trial that the state had failed to allege the proper nexus between the hiree and the murder. Moreover, in its .memorandum of decision on the defendant’s motion to dismiss count two, the trial court wrote: “An essential element of the crime of capital felony murder under Section 53a-54b (2) is that the person who commits the murder be the one hired to commit it. In the present case, the second count of the indictment alleges that ‘Geraldine Burke hired John McGann for his pecuniary gain, for the purpose of causing the death of . . . Donald C. Burke, and . . . the said Donald C. Burke was murdered by a person or persons including said JAMES Y. HOPE.’ The indictment alleges no connection between the allegation that John McGann was hired for pecuniary gain to cause the death of the victim and the allegation that the defendant murdered the victim.

“An allegation which links pecuniary gain to the murder is required in an indictment under section [53a-54b (2)]. It must be alleged that John McGann, the hiree for pecuniary gain, actually participated in the murder or, at a minimum, that the person or persons who committed the murder did so as John McGann’s agents. Because of the absence of any allegation as to this essential element of the crime of capital felony murder, the second count of the indictment is defective.” (Emphasis added.)

The state’s argument therefore fails because the defendant did not wait to move to dismiss the second count of the indictment until after the jury had been sworn. Rather, the record fully sustains the defendant’s position that he had moved twice prior to trial to have the second count dismissed because the indictment failed to allege a proper nexus between the hiree and the murder.

II

Having concluded that the defendant is not barred from asserting a claim of collateral estoppel, we shall examine his claim on the merits. In a criminal case, collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). “ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id., 443. “Collateral estoppel applies in two ways: (1) it may bar prosecution or argumentation of facts necessarily established in a prior proceeding; or (2) it may completely bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the conviction the government seeks. United States v. Griggs, 735 F.2d 1318 (11th Cir. 1984).” United States v. DeMarco, 791 F.2d 833, 836 (11th Cir. 1986).

To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the government is attempting to relitigate those facts in the second proceeding. De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th Cir. 1987); United States v. Irvin, 787 F.2d 1506, 1515 (11th Cir. 1986). “A defendant who argues that Ashe is applicable to his case carries the burden of establishing that the issue he seeks to foreclose from consideration in the second case was ‘necessarily’ resolved in his favor in the prior proceeding. United States v. Seijo, 537 F.2d 694, 697 (2d Cir. 1976), cert. denied, 429 U.S. 1043, 97 S. Ct. 745, 50 L. Ed. 2d 756 (1977).” United States v. Castro, 629 F.2d 456, 465 (7th Cir. 1980). Furthermore, when a defendant is acquitted of conspiracy and then retried on the substantive offense, “if it can be determined that the first jury must have determined an ultimate fact common to the conspiracy and substantive crimes in the defendant’s favor, acquittal of conspiracy may prevent the government from introducing the evidence necessary to convict the defendant of the substantive offense in a subsequent trial.” United States v. Bollinger, 796 F.2d 1394, 1406 (11th Cir. 1986).

“The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a ,19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U.S. 575, 579 [68 S. Ct. 237, 98 L. Ed. 180 (1948)]. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.” Ashe v. Swenson, supra, 444.

“Moreover, in reviewing the earlier trial to determine the jury’s basis for the acquittal, a court ‘should not strain to dream up hypertechnical and unrealistic grounds on which the previous verdict might conceivably have rested.’ United States v. Jacobson, 547 F.2d 21, 23 (2d Cir. 1976), cert. denied, 430 U.S. 946, 97 S. Ct. 1581, 51L. Ed. 2d 793 (1977). See also United States v. Mespoulede, [597 F.2d 329, 333 (2d Cir. 1979)]. ‘ “[Unrealistic and artificial speculation about some far-fetched theory upon which the jury might have based its verdict of acquittal” is foreclosed.’ State v. Edwards, 310 N.C. 142, 145, 310 S.E.2d 610, 613 (1984), quoting United States v. Sousley, 453 F. Supp. 754, 762 (W.D. Mo. 1978).” Ferrell v. State, 318 Md. 235, 245-46, 567 A.2d 937 (1990); see United States v. Mespoulede, supra. Limited ambiguity that exists in a jury’s verdict should be “resolved, in accordance with the protections of the Double Jeopardy Clause, in favor of the defendant.” United States v. Hans, 548 F. Sup. 1119, 1126 (S.D. Ohio 1982).

In the present case, at the defendant’s trial for conspiracy to commit capital felony, for which he was acquitted, the state had the burden of proving beyond a reasonable doubt the following: (1) that the defendant intended that Donald Burke be murdered; (2) that the defendant agreed with John McGann and/or Geraldine Burke to “engage in or cause the performance” of the murder; and (3) that the defendant, McGann and/or Geraldine Burke committed an overt act in furtherance of the conspiracy to murder Donald Burke. In the state’s proposed second trial for aiding and abetting murder, the state will have to prove beyond a reasonable doubt the following: (1) that the defendant intended that Donald Burke be murdered; and (2) that the defendant “intentionally aided” McGann and/or Geraldine Burke in the murder of Donald Burke.

The defendant maintains that in acquitting him of conspiracy to commit capital felony murder, and the lesser included offense of conspiracy to commit murder, the jury necessarily determined that he lacked the intent that Donald Burke be murdered. The defendant thus argues that, since that same element of intent is necessary for him to be found guilty of aiding and abetting Donald Burke’s murder, the state is collaterally estopped from bringing the second prosecution for aiding and abetting murder.

Therefore, the seminal question that we must resolve is whether, in the defendant’s trial for conspiracy to commit capital felony murder, the jury could have acquitted the defendant, yet still, rationally and reasonably, have found that the defendant possessed the specific intent that Donald Burke be murdered. In other words, if the jury could have rationally and reasonably concluded that the state did not meet its burden of proving an agreement, but did meet its burden regarding the defendant’s intent, then the defendant’s collateral estoppel claim must fail. If, however, the jury could not have acquitted the defendant without necessarily determining that he lacked the specific intent that Donald Burke be murdered, then the defendant must prevail on his claim of collateral estoppel.

We conclude that the jury necessarily determined that the defendant lacked the specific intent that Donald Burke be murdered. For the jury to have acquitted the defendant, one of the following scenarios must have taken place. The jury might have believed the defendant’s version of what transpired on the night of Donald Burke’s murder, i.e., that he went to the Burke house with the intent of preventing the murder, that he did not beat Donald Burke and that he was not in the bedroom when Donald Burke was killed. If this were so, then logically the jury necessarily determined that the defendant lacked the intent that Donald Burke be murdered. Also, given that the jury received an instruction on the effect of intoxication on a defendant’s intent, the jury might have concluded that the defendant lacked the intent to kill Donald Burke as a result of his intoxication. Finally, the state argues that the jury could simply have found that there was no agreement between the defendant, McGann and/or Geraldine Burke. If the jury believed the state's version of the case, however, we cannot conceive of how the jury could have rationally and reasonably concluded that the defendant had the intent that Donald Burke be murdered, but did not “agree” with McGann “to engage in or cause the performance” of the murder.

Specifically, the jury received the following instruction on “agreement”: “For . . . persons to be guilty of the crime of conspiracy, it is not necessary that there should be a formal agreement among them. It need not be in any expressed form. It is not necessary for the State to prove that there was a formal or expressed agreement alone. It is sufficient if there is a meeting of the minds; that is, if the parties understand one another, whether they express themselves in so many words or not.” Thus, it is difficult to fathom how the jury could have rationally and reasonably concluded that the defendant did not agree with McGann “to engage in or cause the performance” of Donald Burke’s murder, yet still believed that the defendant drove McGann to the Burke house, walked into Donald Burke’s bedroom, began to beat Donald Burke, stopped beating Donald Burke while McGann shot him, and then started beating Donald Burke again until McGann told him to stop because Donald Burke was dead.

In sum, we conclude that the jury necessarily determined that the defendant lacked the specific intent that Donald Burke be murdered, and thus, since that same intent is an essential element of the state’s second prosecution, the state is collaterally estopped from proceeding with that prosecution. See United States v. DeMarco, supra, 836.

The ruling of the trial court is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      “[General Statutes] Sec. 53a-54b. capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (2) murder committedby a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain . . . .”

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

       In State v. McGann, 199 Conn. 163, 506 A.2d 109 (1986), this court held that McGann, who was alleged to have committed the crime of capital felony murder as a principal, could not be convicted of that crime. Thus, in State v. Hope, 203 Conn. 420, 524 A.2d 1148 (1987), this court ruled that the defendant could no longer be tried as an accessory to that capital felony murder, and dismissed the state’s appeal as moot.

       General Statutes (Rev. to 1981) 5 53a-54a, as amended by Public Acts 1980, No. 80-442, §§ 15, 28, provides in 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 or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       Recently, in Grady v. Corbin, U.S. , 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the United States Supreme Court held that double jeopardy precludes a subsequent prosecution with regard to the same underlying conduct for which a defendant has already been prosecuted. Since the state cannot prevail even under the more restrictive view of collateral estoppel and double jeopardy that predated Grady, this avenue of inquiry need not be pursued in this case.

       In Lee v. United States, 432 U.S. 23, 97 S. Ct. 2141, 52 L. Ed. 2d 80 (1977), the government’s information was dismissed because of its failure to provide adequate notice of the crime charged. The defendant was then retried and convicted of the same crime. The United States Supreme Court then rejected the defendant’s double jeopardy claim on the grounds: (1) that the dismissal was not a judgment on the merits; and (2) that the trial court was forced by the defendant’s late filing of the motion to rule upon it after jeopardy had attached. Justice Brennan, however, wrote in his concurring opinion: “I emphasize, however, that an entirely different case would be presented if the petitioner had afforded the trial judge ample opportunity to rule on his motion prior to trial, and the court, in failing to take advantage of this opportunity, permitted the attachment of jeopardy before ordering the dismissal of the information. In such a circumstance, the court’s action or inaction would effectively deprive petitioner of his ‘valued right’ to receive a factual determination from the first empaneled factfinder and would subject a defendant to the ‘embarrassment, expense and ordeal’ of a needless trial[.] Green v. United States, 355 U.S. 184, 187 [78 S. Ct. 221, 2 L. Ed. 2d 199 (1957)]. Even if the defendant renews his motion at trial, it would not be accurate in such a situation to argue that the defense has made the choice to forgo the right of presenting its case to the first fact-finder in order to attain a beneficial legal ruling. United States v. Dinitz, 424 U.S. 600 [96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976)]; United States v. Jorn, [400 U.S. 470, 485, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971)]. On the contrary, the defendant placed in this predicament by the trial judge would have done everything in his power to receive a fair adjudication of his legal claims without compromising his right to proceed with the first factfinder. Honoring his double jeopardy claim thus not only is in keeping with the policies and interests served by the Clause, but also would further the cause of efficient judicial administration by encouraging defendants to present, and judges to rule, on legal claims prior to the clamor and heat of trial.” Id., S5-S6 (Brennan, J., concurring).

       “Whether a person who is present at the commission of a crime aids or abets its commission so as to be criminally liable depends on the circumstances surrounding his presence there and his conduct while there. ‘ “The accessory statute, [General Statutes] § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. See LaFave & Scott, Criminal Law (1972), p. 505 n.53, § 64.” . . . State v. Harrison, [178 Conn. 689, 694, 425 A.2d 111 (1979)].’ State v. Haddad, [189 Conn. 383, 399, 456 A.2d 316 (1983)]. ‘A person acts “intentionally” with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.’ . . . Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual . . . .” (Emphasis omitted.) State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986).

       The state does not argue that the jury could have rationally and reasonably concluded that no, overt act in furtherance of the conspiracy was committed.

       The trial judge charged the jury on intoxication in the following manner: “Now, under the law of this state, a person may be so intoxicated from the voluntary consumption of alcoholic beverages that he may lack the specific intent to commit the crime charged. Intoxication is defined under the statutes as ‘a substantial disturbance of mental or physical capacities resulting from introduction of substance into the body.’... If, therefore, you have a reasonable doubt that the defendant possessed the specific intent required because of his intoxicated condition, you must find him not guilty of the charge of conspiracy to commit capital felony murder.”


source: Caselaw Access Project

author: Hull, J. Covello, J.,

license: Public Domain

text:
    Caldor, Inc. v. Mary M. Heslin, Commissioner of Consumer Protection, et al.
    (13754)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued April 12
    decision released July 10, 1990

      Eliot B. Gersten, with whom was Peter H. Lovell, for the appellant (plaintiff).

      Stephen R. Park, assistant attorney general, with whom were John M. Looney, assistant attorney general, and, on the brief, Clarine Nardi Riddle, attorney general, and Robert M. Langer, assistant attorney general, for the appellees (defendants).
   Hull, J.

This appeal involves a challenge to a regulation promulgated by the named defendant, the commissioner of the department of consumer protection, that established as unfair or deceptive certain acts or practices in the advertising of manufacturers’ rebates. The plaintiff, Caldor, Inc., instituted the present action seeking a permanent injunction staying the effectiveness and enforcement of the regulation. The case was tried to the court and judgment was rendered for the defendants. From this judgment the plaintiff appealed to the Appellate Court. We subsequently transferred the case to ourselves pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The trial court’s memorandum of decision reveals the following facts. The Connecticut Unfair Trade Practices Act (CUTPA) prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). The legislature did not codify a comprehensive list of “unfair or deceptive acts or practices,” but rather articulated its intent that, in construing the scope of the statutory prohibition, “the [named defendant] and the courts . . . shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)) [prohibiting ‘unfair or deceptive acts or practices’], as from time to time amended.” General Statutes § 42-110b (b). The legislature delegated to the named defendant the authority to “establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of [CUTPA].” General Statutes § 42-110b (c). The named defendant’s authority is limited, however, by the statutory requirement that her regulations “shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.” General Statutes § 42-110b (c).

Pursuant to § 42-110b (c), the named defendant promulgated § 42-110b-19 of the Regulations of Connecticut State Agencies, that provides in pertinent part: “It shall be an unfair or deceptive act or practice to . . . (e) Advertise the availability of a manufacturer’s rebate by displaying the net price of the advertised item in the advertisement, unless the amount of the manufacturer's rebate is provided to the consumer by the retailer at the time of purchase of the advertised item. A retailer will not be required to provide the purchaser of an advertised item with the amount of the manufacturer’s rebate if the retailer advertises that a manufacturer’s rebate is available without stating the net price of the item. For the purpose of this subsection, ‘net price’ means the ultimate price paid by a consumer after he redeems the manufacturer’s rebate offered for the advertised item.”

The plaintiff, a New York corporation engaged in the business of retail sales in Connecticut, instituted the present action, seeking a “permanent injunction staying the effectiveness of [Regulation § 42-110b-19 (e)] and its enforcement.” At trial, the plaintiff argued that the regulation is: (1) inconsistent with, and in excess of, the statutory authority granted to the named defendant; (2) in violation of substantive due process in that it is arbitrary and capricious; and (3) inconsistent with the protections that are afforded commercial speech pursuant to the federal and state constitutions.

In addressing these claims, the trial court made the following findings of fact with respect to manufacturers’ rebate programs. Such a program is a marketing technique that purports to return a portion of the purchase price to the consumer after purchase. The terms and conditions of a manufacturer’s rebate, including the amount of the rebate, are determined by the manufacturer. While the terms and conditions vary from manufacturer to manufacturer and from product to product, three basic conditions are common to each manufacturer’s rebate program. In order to obtain the rebate from the manufacturer, the consumer must deliver to a designated address: (1) a completed rebate certificate; (2) the original cash register receipt; and (3) a valid proof of purchase. The rebate certificate and the cash register receipt are obtained from the retailer and the valid proof of purchase is typically part of the package or container purchased by the consumer.

The language of the advertisement of a product for which a manufacturer’s rebate is offered is determined by the retailer. An important marketing tool used by retailers is the prominent advertisement of a product’s net price, i.e., the price of the product after subtracting the rebate allowance. Such net price advertising quickly “grabs” the attention of the consumer. Advertisements by the plaintiff of products included in a manufacturer’s rebate program display, in large type, the net price and, in small type, the regular price, the sale price and the amount of the manufacturer’s rebate. The following is an example of the plaintiffs net price advertising:

$1 after 50<P mfr. rebate reg. 2.99 sale 1.50

reg. 2.99 ea. sale 3/6.25 less 1.25 mfr. reb. 3/$5

The trial court noted that such advertising is factually untrue because the consumer necessarily incurs costs in obtaining the rebate from the manufacturer. At the very least, the consumer must incur the expense of mailing the required items to the address designated by the manufacturer. In the advertisement reproduced above, therefore, the consumer pays, at the time of purchase, $1.50 for the advertised product and then incurs the cost of obtaining the 50 cent rebate. The trial court determined that the net price advertising is likely to mislead a consumer into believing that the price of the product is $1, a belief likely to affect the consumer’s purchase decision.

The trial court concluded, therefore, that the plaintiff’s net price advertising of a product included in a manufacturer’s rebate program is “deceptive” as a matter of law. Accordingly, the court held that: (1) in promulgating the regulation at issue, the named defendant acted within the authority granted her by General Statutes § 42-110b (c); and (2) the advertising here at issue was not protected by the federal and state constitutions.

The plaintiff’s appeal to this court raises three issues. First, the plaintiff contends that because its net price advertising of products included in a manufacturer’s rebate program is not “deceptive” as a matter of law, the trial court improperly sustained the regulation. Second, the plaintiff claims that the trial court mistakenly determined that such net price advertising is not subject to constitutional protection. Finally, the plaintiff maintains that the trial court improperly refused to admit at trial certain evidence relevant to a determination of the statutory and constitutional validity of the regulation. We are unpersuaded.

I

We turn first to the plaintiffs claim that the challenged regulation is inconsistent with the statutory authority granted to the named defendant and, therefore, was improperly sustained by the trial court. The trial court determined that the plaintiffs net price advertising was “deceptive” as a matter of law. This finding served as the basis for the court’s conclusion that, in promulgating the regulation, the named defendant acted within the authority granted her by § 42-110b (c). The plaintiff claims that a proper application of the standards set forth by the federal trade commission compels a finding that its advertising is not “deceptive.” Accordingly, argues the plaintiff, the regulation of its advertisements pursuant to § 42-110b is invalid. We conclude that the trial court properly sustained the regulation; we rely on different grounds than did the trial court, however, in reaching this conclusion.

Initially, we note that the nature of the plaintiff’s advertising is not the focus of our inquiry, nor should it have been in the trial court. At issue in this appeal is the validity of the regulation promulgated by the named defendant. “ ‘Judicial review of the [named defendant’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, [707-708,] 372 A.2d 110 (1976) [cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]. Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [named] defendant.’ C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 [j]. ‘The court’s ultimate duty is only to decide whether, in light of the evidence, the [named defendant] has acted unreasonably, arbitrarily, illegally, or in abuse of [her] discretion.’ Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v. State Employees’ Retirement Commission, 178 Conn. 438, 441, 423 A.2d 87 (1979); see also Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983).” Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986); New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988); see also Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). It is with an awareness of these limitations that we review the challenged regulation.

Since the early 1980s the state department of consumer protection has received consumer complaints about manufacturers’ rebate programs. In response to these complaints, the named defendant conducted an investigation of these rebate programs. The trial court’s findings, discussed supra, detailed the relevant findings made during this investigation. The ultimate conclusion reached by the named defendant and affirmed by the trial court was that net price advertising of a product for which a manufacturer’s rebate is offered misleads the consumer about the price the consumer will pay for that product.

The federal courts have determined that an act or practice is deceptive if three requirements are met. “First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material—that is, likely to affect consumer decisions or conduct.” Figgie International, Inc., 107 F.T.C. 313, 374 (1986). Given the findings concerning the inherently misleading nature of net price advertising where a manufacturer’s rebate is involved, the named defendant, pursuant to § 42-110b (c), established by regulation that such advertising is in violation of CUTPA.

We conclude that in light of the evidence the regulation is consistent with the general statutory scheme that it is designed to implement. The limitations imposed on the named defendant’s authority by the express language of § 42-110b do not require a contrary conclusion. First, in accordance with the mandate of § 42-110b (c), the regulation is not “inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.” Although the federal authorities have not established the net price advertising here at issue to be “unfair or deceptive,” they have also not adopted rules, regulations or decisions with which the challenged regulation is inconsistent. Likewise, although § 42-110b (b) provides that courts and the named defendant shall be guided by the federal interpretations given § 5 of the Federal Trade Commission Act, they are not limited by such interpretations. “As originally enacted, [CUTPA] provided that state unfair or deceptive acts or practices were to be those ‘determined to be’ unfair or deceptive by the [Federal Trade Commission] or the federal courts. 1973 Pub. Acts 615, § 2 (a). However, the Act was amended in 1976 to provide only that courts in Connecticut [and the named defendant] were to be ‘guided by’ federal interpretations of § 5 of the [Federal Trade Commission Act]. The purpose of the change apparently was to permit . . . practices which had not yet been specifically declared unlawful by federal authorities to be nevertheless unlawful under CUTPA.” (Emphasis added.) Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 71 (D. Conn. 1982).

Further support for the conclusion that the regulation is consistent with the named defendant’s statutory authority derives from the fact that the regulation has received approval from the standing legislative regulation review committee as required by General Statutes § 4-170. Section § 4-170 provides in part that “[n]o adoption, amendment or repeal of any regulation . . . shall be effective until the original of the proposed regulation approved by the attorney general, as provided in section 4-169 . . . [has] been submitted to the standing legislative regulation review committee .... The committee shall review all proposed regulations and, in its discretion . . . may approve [or] disapprove . . . any such regulation.” “[Legislative ratification of a proposed regulation supports the position that the regulation is consistent with the general statutory scheme that the regulation was designed to implement.” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 600, 522 A.2d 771 (1987); see also Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 129-30, 527 A.2d 672 (1987); Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 144, 509 A.2d 1050 (1986).

The named defendant, therefore, acted within her statutory grant of authority in establishing net price advertising in the context of a manufacturer’s rebate program as “unfair or deceptive” in violation of CUTPA. That the named defendant did not eliminate the practice of net price advertising entirely, but rather chose to regulate the area more narrowly, does not render the regulation invalid. “The Commission is the expert body to determine what remedy is necessary to eliminate the unfair or deceptive trade practices which have been disclosed. It has wide latitude for judgment and the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist.” Jacob Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 612-13, 66 S. Ct. 758, 90 L. Ed. 888 (1946). The named defendant, relying on her expertise in the area, determined that an effective way to address the inherently misleading nature of net price advertising in the context of manufacturers’ rebate programs is to require those retailers who choose to use that type of advertising to make the rebate available at the time of purchase. We may not substitute our own judgment for that of the named defendant.

We conclude that, in promulgating § 42-110b-19 (e) of the regulations, the named defendant did not act unreasonably, arbitrarily, illegally, or in abuse of her discretion. The trial court, therefore, properly determined that the adoption of the regulation was consistent with General Statutes § 42-110b.

II

We turn next to the plaintiffs claim that the regulation violates its right to free speech under the first amendment to the United States constitution and article first, §§ 4 and 5 of the Connecticut constitution. As both the plaintiff and the defendants concede, the net price advertising here at issue falls within the classification of “commercial speech.” “The United States Supreme Court has ‘adopted a four-part test for determining the validity of government restrictions on commercial speech .... (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.’ Metromedia, Inc. v. San Diego, [453 U.S. 490, 507, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981)].” (Emphasis added.) Burns v. Barrett, 212 Conn. 176, 182, 561 A.2d 1378, cert. denied, 493 U.S. 1003, 110 S. Ct. 563, 107 L. Ed. 2d 558 (1989).

We need not go beyond the first of these criteria. As we discussed previously, the named defendant’s investigation yielded a finding that net price advertising of a product for which a manufacturer’s rebate is offered is inherently misleading. As such, the plaintiff’s advertising does not qualify for constitutional protection.

Ill

Finally, the plaintiff challenges the trial court’s refusal to admit into evidence examples of other retailers’ net price rebate advertising. In offering the evidence, the plaintiff stated that the evidence was relevant to the issue of “deception” as set forth in its statutory challenge to the regulation and the issue of overbreadth as set forth in its constitutional challenge to the regulation. The court rejected the offer, stating that the form and substance of an advertisement of a competitor of the plaintiff was irrelevant to the controversy. The plaintiff claims that the court improperly focused only on the plaintiff’s advertising. We do not agree.

“It is beyond dispute that the trial court has broad discretion in determining the relevancy and materiality of evidence. Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1981).” Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987). The plaintiff first offered the examples of other retailers’ advertising on the issue of “deception.” As discussed previously, the question properly before the trial court was not whether a particular advertisement was deceptive as a matter of law, but rather, whether the named defendant’s regulation was unreasonable, arbitrary, illegal, or in abuse of her discretion. The plaintiff also offered the evidence on its claim that the regulation was unconstitutionally overbroad. The United States Supreme Court has been reluctant, however, to apply the overbreadth analysis in the context of commercial speech. See Bates v. State Bar of Arizona, 433 U.S. 350, 379-81, 97 S. Ct. 2691, 53 L. Ed. 2d 810, reh. denied, 434 U.S. 881, 98 S. Ct. 242, 54 L. Ed. 2d 164 (1977). We conclude that the trial court did not abuse its broad discretion in precluding at trial examples of other retailers’ net price rebate advertising.

The judgment is affirmed.

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

Covello, J.,

dissenting. I respectfully disagree with the majority’s conclusion that “the advertising here at issue was not protected by the federal and state constitutions.” This conclusion is based upon the trial court’s factually unsupported determination that net price advertising, in the context of a manufacturer’s rebate program, was inherently “unfair or deceptive,” and that, therefore, pursuant to General Statutes § 42-110b (c), such advertising is in violation of the Connecticut Unfair Trade Practices Act (CUTPA). I submit that the defendants are required to make some showing of unfairness or deception beyond a mere conclusion, particularly when the first amendment guarantee of free speech is implicated.

Despite the implication to the contrary found in the majority’s opinion, I submit that “[t]he party seeking to uphold a restriction on commercial speech carries the burden of justifying it.” Bolger v. Youngs Drug Products Corporation, 463 U.S. 60, 71 n.20, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983). Here, there was simply no evidence in the record at trial to show that the defendants had received any complaints suggesting that net price advertising was deceptive because the consumer expected to receive the advertised net price from the retailer at the point of purchase. Michael Krauss, the plaintiffs director of consumer and government relations, testified that over the course of eight years he did not receive a single complaint regarding a consumer’s inability to receive the rebate amount in the store, or the net price. Krauss’ testimony was corroborated by Kathleen Curry, consumer affairs bureau chief for the defendants. Complaints from consumers about rebate offers related exclusively to the process involved in obtaining the rebate, not the advertising of the rebate itself As a threshold matter, the evidence on the record is wholly insufficient to support the conclusion that there is a likelihood or a fair probability that a reasonable consumer would be misled or deceived by the net price advertising format at issue here. See Figgie International, Inc., 107 F.T.C. 313, 373-74 (1986).

General Statutes § 42-110b (b) provides that the courts and the defendant shall be guided by the federal interpretations given § 5 of the Federal Trade Commission Act. Federal authorities have not established that the net price advertising here at issue is “unfair or deceptive,” and the Federal Trade Commission (FTC) in the past has declined the named defendant’s request that the FTC undertake a study, report or policy statement regarding rebates. The majority’s statement, that “although § 42-110b (b) provides that courts and the named defendant shall be guided by the federal interpretations given § 5 of the Federal Trade Commission Act, they are not limited by such interpretations” (emphasis in original) is an inappropriate attempt to justify the conclusory, unsupported and therefore clearly erroneous determination of the trial court. Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 498, 569 A.2d 32 (1990).

This regulation unconstitutionally restricts the dissemination of what I perceive to be truthful commercial speech. “ ‘Even though “commercial” speech is involved, [this kind of restriction] strikes at the heart of the First Amendment. This is because it is a covert attempt by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice. . . . [T]he State’s policy choices are insulated from the visibility and scrutiny that direct regulation would entail and the conduct of citizens is molded by the information that [the] government chooses to give them.’ ” Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 351, 106 S. Ct. 2968, 92 L. Ed. 2d 266 (1986) (Brennan J., dissenting), quoting Central Hudson Gas & Electric Corporation v. Public Service Commission, 447 U.S. 557, 574-75, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). “[N]o differences between commercial and other kinds of speech justify protecting commercial speech less extensively where, as here, the government seeks to manipulate private behavior by depriving citizens of truthful information concerning lawful activities.” Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, supra.

Accordingly, I dissent.

       The Connecticut department of consumer protection is also named as a defendant in this appeal.

      See clerk for details/limitations on all rebates & special offers.

       This court may rely upon different grounds from those relied upon by the trial court for the purpose of affirming the judgment. Rubin v. Rubin, 204 Conn. 224, 232, 527 A.2d 1184 (1987); Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987); Heffernan v. New Britain Bank & Trust Co., 175 Conn. 8, 14, 392 A.2d 481 (1978).

       General Statutes § 4-183 (j) as amended to take effect July 1,1989, provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person.appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . .”

       The parties focus solely on “deception” rather than “unfairness.”

       The plaintiff claims that a letter received by the named defendant in 1986 from a Federal Trade Commission staff employee is inconsistent with the challenged regulation. We find no such inconsistency. The letter merely declines to undertake a study or to make reports or policy statements regarding rebates. By this action, the Federal Trade Commission did not commence the most basic steps that could lead to the issuance of a rule, regulation or decision.

       In determining the protection afforded commercial speech by the state constitution, we are guided by the United States Supreme Court’s decisions in this area. Grievance Committee v. Trantolo, 192 Conn. 15, 23, 470 A.2d 228 (1984).


author: Callahan, J.

text:
    A. Dubreuil and Sons, Inc. v. Town of Lisbon
    (13779)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued April 5
    decision released July 10, 1990

      Richard S. Cody, for the appellant (plaintiff).

      David S. Williams, for the appellee (defendant).
   Callahan, J.

On June 3, 1986, the plaintiff, A. Dubreuil and Sons, Inc., a general contractor, and the defendant, the town of Lisbon, entered into a contract for certain additions and alterations to be made by the plaintiff to the town-owned Lisbon Central School in Lisbon. The plaintiff, claiming that it was entitled to compensation for extra work performed on the project, filed a demand for arbitration with the American Arbitration Association (AAA) on November 7, 1988. The defendant thereafter informed the AAA that the contract did not require the parties to arbitrate the plaintiffs claim and that it did not agree to arbitration. As a result, the AAA notified the parties by letter dated December 16,1988, that it “would hold this file in abeyance until such time as a court orders arbitration.”

In response to the AAA’s letter of December 16, 1988, the plaintiff, by complaint dated January 7,1989, instituted an action in the Superior Court requesting an order compelling the defendant to arbitrate their differences in compliance with what it contended was their agreement requiring arbitration on the demand of either party. Subsequently, the plaintiff filed a “Motion for Arbitration” that was heard on the short calendar and denied by the trial court. See General Statutes § 52-410 (c). Later, a motion to reconsider and reargue the same motion was also denied. From those decisions of the trial court denying its application for an order to compel arbitration, the plaintiff appealed to the Appellate Court. We transferred the appeal to ourselves, pursuant to Practice Book § 4023.

The agreement between the parties, as it concerns arbitration, is embodied in §§ 7.9.1, 7.9.2 and 7.9.3 of the standard American Institute of Architects’ (AIA) printed contract document A201. The relevant portion of § 7.9.1 in its original form in the standard printed contract provided: “All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to the Contract Documents or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.” (Emphasis added.)

Section 7.9.1 of the standard printed contract form, however, was amended by the parties, apparently at the instigation of the defendant, by a typewritten addendum to the printed contract to read in pertinent part: “All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof . . . may be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.” (Emphasis added.)

After the plaintiffs appeal was transferred to this court, the trial court, in response to the plaintiff’s motion for articulation, filed a written memorandum of decision articulating its reason for denying the plaintiff’s application for an order to compel arbitration. In its memorandum the trial court declared: “If one party could unilaterally compel the other party to resolve any disputes by arbitration, as the plaintiff contends, then the change in section 7.9.1 of the terms from ‘shall’ to ‘may’ would be meaningless.” The trial court could reasonably have reached such a conclusion.

“Arbitration is a creature of contract.” John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981); Gangemi v. General Electric Co., 532 F.2d 861, 865 (2d Cir. 1976); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977). It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law. John A. Errichetti Associates v. Boutin, supra; Hartford v. American Arbitration Assn., 174 Conn. 472, 480, 391 A.2d 137 (1978); Board of Education v. Bridgeport Education Assn., supra. “ ‘But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 [1967]; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 [1967] . . . .’ Marsala v. Valve Corporation of America, 157 Conn. 362, 365, 254 A.2d 469 (1969).” John A. Errichetti Associates s. Boutin, supra. No one can be forced to arbitrate a contract dispute who has not previously agreed to do so. Ginsberg v. Coating Products, Inc., 152 Conn. 592, 596, 210 A.2d 667 (1965). The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention. Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); First Hartford Realty Corpora tion v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402-403, 365 A.2d 1086 (1976). The intention of the parties is, in turn, a question of fact. Ginsu Products, Inc. v. Dart Industries, Inc., 786 F.2d 260, 262-63 (7th Cir. 1986); Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130, 523 A.2d 1266 (1987); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); First Hartford Realty Corporation v. Ellis, supra; Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 123, 492 A.2d 536 (1985); Novelly Oil Co. v. Mathy Construction Co., 147 Wis. 2d 613, 617, 433 N.W.2d 628 (1988); Peninsular Carpets, Inc. v. Bradley Homes, 58 Wis. 2d 405, 416, 206 N.W.2d 408 (1973).

It is therefore a question of fact in this instance whether the parties, in altering the printed contract by substituting “may” for “shall” in the contract’s arbitration provision, intended to modify the contract to provide for consensual arbitration, rather than mandatory arbitration upon the demand of a single party. Three S. Development Co. v. Santore, 193 Conn. 174, 178, 474 A.2d 795 (1984); First Hartford Realty Corporation v. Ellis, supra; see Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). The trial court’s finding on that issue is not reversible by this court unless it was a finding that the court could not reasonably have made. First Hartford Realty Corporation v. Ellis, supra; Heyman v. CBS, Inc., 178 Conn. 215, 227-28, 423 A.2d 887 (1979); Lar-Rob Bus Corporation v. Fairfield, supra. The plaintiff can prevail on appeal, therefore, only if it is able to demonstrate that the trial court’s interpretation of the amended contract was clearly erroneous. Ginsu Products, Inc. v. Dart Industries, Inc., supra; Practice Book § 4061; Rowe v. Cormier, 189 Conn. 371, 373, 456 A.2d 277 (1983); Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Friedlander v. Friedlander, 5 Conn. App. 1, 5, 496 A.2d 964 (1985).

The cardinal rule in construing contracts is to ascertain the intention of the parties. Finlay v. Swirsky, 103 Conn. 624, 634, 131 A. 420 (1925); McVay v. Anderson, 221 Ga. 381, 385, 144 S.E.2d 741 (1965). “[Interpretation of an agreement [by a court] is a search for the intent of the parties.” Lavigne v. Lavigne, supra, 428; Lar-Rob Bus Corporation v. Fairfield, supra. “A contract is to be construed [by the trier of fact] according to what is fairly to be assumed to be the understanding and intent of the parties.” Bridge-Mile Shoe Corporation v. Liggett Drug Co., 142 Conn. 313, 318, 113 A.2d 863 (1955); Bronx Derrick & Tool Co. v. Porcupine Co., 117 Conn. 314, 318, 167 A. 829 (1933). “Such a determination of what the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached.” Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, supra, 130. “ ‘The intent developed is alone material, and when that is ascertained it is conclusive.’ Whitney v. Wyman, 101 U.S. 392, 395 [25 L. Ed. 1050 (1880)]; Adams v. Whittlesey, 3 Conn. 560 [1821]; Ogden v. Raymond, 22 Conn. 379, 385 [1853].” Massaro v. Savoy Estates Realty Co., 110 Conn. 452, 458, 148 A. 342 (1930).

The trial court was confronted by a printed form contract containing arbitration provisions that originally included a provision that required that disputes arising under the contract “shall be settled by arbitration.” The use of the word “shall” denotes that the directive in the contract to arbitrate was mandatory. See United States v. White, 887 F.2d 705, 710 (6th Cir. 1989); Daily v. New Britain Machine Co., 200 Conn. 562, 572, 512 A.2d 893 (1986); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979); Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972); Ring v. Williams, 192 Ga. App. 329, 330, 384 S.E.2d 914 (1989); Trumka v. Moore, 376 S.E.2d 178, 181 (W. Va. 1988). The deliberate substitution of “may” for “shall” in the arbitration provision of the contract, on the other hand, is an indication that the parties expressly intended something other than mandatory arbitration. The word “may,” unless the context in which it is employed requires otherwise, is not normally used as a word of command. Morales v. Trinity Ambulance Service, 9 Conn. App. 386, 390, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987); Trumka v. Moore, supra; Black’s Law Dictionary (5th Ed.) The term “may” generally imports permissive conduct and the use of discretion. Seals v. Hickey, 186 Conn. 337, 345, 441 A.2d 604 (1982); Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980); Wye Community Club, Inc. v. Harmon, 26 Ark. App. 247, 254, 764 S.W.2d 55 (1989); Ring v. Williams, supra, 916; Black’s Law Dictionary (5th Ed.)

Because the command word “shall” was deliberately removed from the contract by the parties and replaced by the word “may,” it was not unreasonable for the trial court to have determined that the parties intended to modify their contract to provide for consensual rather than mandatory arbitration. See Shulman v. Zoning Board of Appeals, 154 Conn. 426, 429, 226 A.2d 380 (1967); Miller v. Phoenix State Bank & Trust Co., 138 Conn. 12, 16, 81 A.2d 444 (1951). We certainly cannot say that it was clearly erroneous for the court to have attributed such a meaning to the amended arbitration provision. See Rowe v. Cormier, supra, 373.

Further, “[wjhere there is a printed form of contract, and other words are inserted [in the printed form], in writing or otherwise, it is to be assumed that they take precedence over the printed matter.” Holland v. Brown, 15 Utah 2d 422, 425, 394 P.2d 77 (1964); Quinlan v. Bell, 189 Ga. App. 8, 9, 374 S.E.2d 823 (1988); Cale Development Co. v. Appeals Board, 94 App. Div. 2d 229, 234, 463 N.Y.S.2d 814 (1983), aff’d, 61 N.Y.2d 976, 463 N.E.2d 619, 475 N.Y.S.2d 278 (1984); Farmers Elevator & Mercantile Co. v. Farm Builders, Inc., 432 N.W.2d 864, 868 (N.D. 1988); Thiel Industries, Inc. v. Western Fire Ins. Co., 289 N.W.2d 786, 788 (N.D. 1980); Scogin v. Camp, 556 S.W.2d 850, 852 (Tex. Civ. App. 1977); 17 Am. Jur. 2d, Contracts § 271, pp. 679-80. In this instance, therefore, the replacement in the form contract of the words, “shall be decided by arbitration,” by the typed words, “may be decided by arbitration,” denoting consensual arbitration, could reasonably have been construed by the trial court to have been inconsistent with and to have superseded any residual wording of the printed form contract that might be compatible with binding arbitration. Otherwise, as the trial court stated, “the change in section 7.9.1 of the terms from ‘shall’ to ‘may’ would be meaningless.” See Bartlett & Co., Grain v. Merchants Co., 323 F.2d 501, 506 (5th Cir. 1963); Goodchild & Partners, Ltd. v. Ready Tool Co., 100 Conn. 378, 381, 124 A. 38 (1924); Allegheny Mutual Casualty Co. v. State, 176 So. 2d 362, 365 (Fla. App. 1965); S. & D. Petroleum Co. v. Tamsett, 144 App. Div. 2d 849, 850, 534 N.Y.S.2d 800 (1988); Farmers Elevator & Mercantile Co. v. Farm Builders, Inc., supra; see 17 Am. Jur. 2d, Contracts § 271, p. 680.

Finally, the plaintiff argues that even though the wording of the contract’s arbitration provision was changed to read “may” arbitrate, rather than “shall” arbitrate, there remains other wording in the printed portion of the contract in §§ 7.9.1, 7.9.2 and 7.9.3 indicative of mandatory arbitration. The plaintiff claims that the remaining language in the printed form creates an ambiguity that should be construed against the defendant, who authored the change in the contract. See, e.g., Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 145-46, 328 A.2d 711 (1973). To the extent that such an ambiguity exists, “the rule should be applied which says typed matter controls the printed instead of the rule which says that a contract will be construed against the author. Universal C.I.T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Leslie Lowry & Co. v. KTRM, Inc., [239 S.W.2d 898, 900 (Tex. Civ. App. 1951)]; 17A C.J.S. Contracts § 324, p. 217.” Innes v. Webb, 538 S.W.2d 237, 239 (Tex. Civ. App. 1976).

We cannot say that the trial court erred by concluding that arbitration, under the amended contract, required the consent of both parties. ****8

The judgment is affirmed.

In this opinion the other justices concurred.

       American Institute of Architects, Document A201, General Conditions of the Contract for Construction (13th Ed. 1976) §§ 7.9.1, 7.9.2 and 7.9.3 provide:
      “7.9 ARBITRATION.
      “7.9.1. All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, except as provided in Subparagraph 2.2.11 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. No arbitration arising out of or relating to the Contract Documents shall include, by consolidation, joinder or in any other manner, the Architect, his employees or consultants except by written consent containing a specific reference to the Owner-Contractor Agreement and signed by the Architect, the Owner, the Contractor and any other person sought to be joined. No arbitration shall include by consolidation, joinder or in any other manner, parties other than the Owner, the Contractor and any other persons substantially involved in a common question of fact or law, whose presence is required if complete relief is to be accorded in the arbitration. No person other than the Owner or Contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Any consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of any dispute not described therein or with any person not named or described therein. The foregoing agreement to arbitrate and any other agreement to arbitrate with an additional person or persons duly consented to by the parties to the Owner-Contractor Agreement shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
      “7.9.2 Notice of the demand for arbitration shall be filed in writing with the other party to the Owner-Contractor Agreement and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Subparagraph 2.2.12 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
      “7.9.3 Unless otherwise agreed in writing, the Contractor shall carry on the Work and maintain its progress during any arbitration proceedings, and the Owner shall continue to make payments to the Contractor in accordance with the Contract Documents.”

       Article 7 of the parties’ supplemental conditions, entitled “Miscellaneous Provisions,” provides:
      “7.9 arbitration—In Paragraph 7.9.1 modify wording of first sentence as follows:'. . . provided by Subparagraphs 9.9.4 and 9.9.5, may be decided by arbitration . . . .’ ”

       In support of its position the plaintiff cites a number of cases from the federal courts and courts of other states in which the use of the word “may” has been construed as mandating arbitration on the demand of a single party. None of those cases, however, is analogous to the present case because they do not implicate the specific factual situation encompassed herein, i.e., a modification from “shall” to “may” of the contract provision concerning arbitration. Absent the express change, the result in this instance might very well have been different. See, e.g., Bonnot v. Congress of Independent Unions Local #14, 331 F.2d 355, 359 (8th Cir. 1964); Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986).
      The Connecticut cases cited by the plaintiff for the proposition that “may” mandates arbitration under the facts of this case are inapposite. See Paranko v. State, 200 Conn. 51, 509 A.2d 508 (1986); East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn. App. 611, 525 A.2d 112 (1987), rev’d on other grounds, 206 Conn. 643, 539 A.2d 125 (1988).


author: Per Curiam.

text:
    State of Connecticut v. Scott Soltes
    (13905)
    Peters, C. J., Shea, Glass, Hull and Borden, Js.
    Argued May 31
    decision released July 17, 1990

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Michael J. Weber, deputy assistant state’s attorney, for the appellant (state).

      Elaine M. Scanlon, with whom, on the brief, was Howard T. Owens, Jr., for the appellee (defendant).
   Per Curiam.

The defendant was charged with the crimes of assault in the second degree, assault in the third degree, threatening, disorderly conduct, breach of the peace and reckless endangerment in the first degree, and was found guilty by a jury on all charges except the last. He did not dispute the facts underlying the state’s charges, but instead relied on a defense of mental disease or defect.

At trial, the defense sought to introduce testimony by the defendant’s mother concerning genetic, family illnesses that he claimed were medically linked to his mental condition. The trial court excluded the testimony. On appeal, the Appellate Court set aside the judgment and remanded the case for a new trial. State v. Soltes, 20 Conn. App. 342, 566 A.2d 1374 (1989). Because the trial court’s ruling appeared to have been based upon the order of testimony of the defense witnesses (the mother’s testimony initially preceded the defense expert’s testimony), we granted certification limited to the following issue: “Did the Appellate Court err in holding that the trial court abused its discretion by excluding the testimony of the defendant’s mother as to whether her ‘other children suffer from any physical ailments, any medical problems’ prior to any evidence that the defendant suffered from a genetic mental disorder?” Upon further review of the transcript, however, we have concluded that the trial court also ruled to exclude the testimony on the independent ground that the mother was a nonexpert witness. It is to this basis for the exclusion that the Appellate Court’s opinion is addressed. We are in agreement with the views expressed by the Appellate Court on that subject in its opinion, and it would serve no useful purpose to repeat that court’s discussion here. Thus, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.