Argued Oct. 10, 1989.
John M. Massameno, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert G. Appleton, Asst. State's Atty., for appellant (state).
Michael J. McClary, with whom, on the brief, were Hugh F. Keefe, John J. Keefe, and Charles E. Tiernan III, New Haven, for appellee (defendant).
Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, COVELLO and HULL, JJ.
[213 Conn. 709] CALLAHAN, Associate Justice.
The issue in this appeal, taken by the state with permission of the trial court; see General Statutes § 54-96;  is whether the trial court erred in [213 Conn. 710] dismissing charges of conspiracy to commit murder and conspiracy to commit capital felony pending against the defendant. 
The record reveals that the defendant, Bryan D. Patterson, was arrested on July 23, 1987, pursuant to a warrant charging him with two counts of accessory to murder under General Statutes §§ 53a-54a(a)
and 53a-8,  one count of accessory to capital felony under [213 Conn. 711] §§ 53a-54b(8)  and 53a-8, two counts of conspiracy to commit murder under §§ 53a-54a(a) and 53a-48  and one count of conspiracy to commit capital felony under §§ 53a-54b(8) and 53a-48. On May 26, 1988, the state filed a substitute information charging the defendant with two counts of accessory to murder, with accessory to capital felony, with conspiracy to commit murder and with conspiracy to commit capital felony. That same date the state submitted the substitute information to the trial court, Kaplan, J., for a determination of probable cause in accordance with General Statutes § 54-46a.  After a hearing, the trial court found that [213 Conn. 712] the state had failed to establish probable cause to continue the prosecution of the defendant on either the accessory counts or the conspiracy counts.
More particularly, the trial court found that the state had failed to present sufficient
evidence to enable it to find probable cause to believe that the defendant knew that an alleged coconspirator, Eric Steiger, planned or intended to kill the two victims in this case, William Price and Daniel Seymour. The trial court concluded, therefore, that the state had not demonstrated probable cause of the defendant's intent to cause death, a prerequisite to the continuation of the prosecution under both the accessory to murder and the conspiracy to commit murder statutes. State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986); State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 (1976).
After the trial court announced its decision, the state protested the trial court's ruling on the conspiracy counts arguing that, because those charges did not carry possible penalties of death or life imprisonment, they did not require a determination of probable cause under § 54-46a in order for the state to continue their prosecution. The trial court, however, opined that it [213 Conn. 713] had been asked to make a probable cause determination as to all the counts in the information, conspiracy as well as accessory, that it had done so, and that the state was bound by its finding. 
The state thereafter filed an information against the defendant dated June 14, 1988, charging him with two counts of accessory to murder and one count of accessory to capital felony and moved for another hearing in probable cause under § 54-46a as to those charges only. The requested hearing was held by the trial court, Kline, J., on July 27, 1988. After the hearing, Judge Kline found no probable cause to continue the prosecution of the accessory charges.
On that same date, July 27, 1988, the state filed another information against the defendant, charging him only with the two conspiracy counts. In response, the defendant filed a motion to dismiss the conspiracy counts under § 54-56,  claiming that, [213 Conn. 714] because in both earlier proceedings the trial court had failed to find probable cause of an intent to cause death on the part of the defendant, the state should be foreclosed from continuing the prosecution of the conspiracy counts against him.
A hearing was held on the defendant's motion to dismiss on August 8, 1988. Subsequent to the hearing, Judge Kaplan rendered an oral decision in which he concluded that, even if unnecessary, the state had submitted the conspiracy charges to him for a determination of probable cause in the initial § 54-46a hearing and that he had correctly found that there was no probable cause to continue their prosecution. He also noted that Judge Kline had refused to find probable cause to continue the prosecution of the accessory charges at the second § 54-46a hearing because of a lack of evidence of the requisite intent to cause death on the part of the defendant. This was the same reason, he stated, that there was insufficient ...