Argued Jan. 2, 1990.
Harry Weller, Asst. State's Atty., with whom, on the brief, was John J. Kelly, Chief State's Atty., for appellant (state).
Hubert J. Santos, Hartford, for appellee (defendant).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.
[214 Conn. 658] CALLAHAN, Associate Justice.
The principal issue in this appeal is whether the trial court erred when it dismissed with prejudice the charge of bribe receiving in violation of General Statutes § 53a-148  that was pending against the defendant, Edward D. Bergin, Jr. Bergin was the mayor of Waterbury from January, 1976, until December 31, 1985. After his arrest on a warrant, the defendant requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The trial court determined, based on affidavits and an oral offer of proof, that the defendant was entitled to a full Franks hearing. After the [214 Conn. 659] hearing, the court ruled that the defendant had proven by a preponderance of the evidence that the "affiant deliberately omitted evidence and testimony from the warrant affidavit that is material to the finding of probable cause." It then found that had the omitted facts been included in the arrest warrant affidavit, probable cause to arrest the defendant would not have existed. The court thereupon granted the defendant's motion to dismiss concluding that the affiant's omission of material information from the warrant affidavit constituted "defects inherent in the initiation of the prosecution" that, if left unremedied, threatened the "integrity of the judicial system."  See Practice Book § 815(1).
The state promptly requested permission to appeal the dismissal, which request the trial court denied. Subsequently, the Appellate Court granted the state's motion for review of the trial court's denial and thereafter granted the state permission to appeal the dismissal. Pursuant to Practice Book § 4023, we transferred this appeal to ourselves. We find error.
On appeal the state claims that the trial court erred when it: (1) granted the defendant a Franks hearing; (2) ruled that if the omitted facts were included in the arrest warrant affidavit, there was no probable cause for the defendant's arrest; (3) limited the dates on which the state could attempt to prove the defendant received the money he allegedly obtained as a bribe and, subsequently, struck the state's information amending the date of the alleged offense; and (4) dismissed the charge against the defendant. The defendant argues that this court lacks jurisdiction. We must, therefore, address that question Before we reach the merits of the state's claims.
[214 Conn. 660] I
The defendant contends that this court lacks subject matter jurisdiction over the state's appeal and therefore urges us to reverse the Appellate Court's decision granting the state permission to appeal. The defendant asserts two bases for his claim. First, he argues that the trial court did not abuse its discretion when it denied the state permission to appeal because (1) both parties submitted briefs to the trial court addressing the issue, and (2) the trial court issued a four page memorandum of decision articulating its "considered reasons" for denying the state's motion. See State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311, 521 A.2d 1017 (1987). Second, he asserts that the state is now raising issues that were not raised in its memorandum seeking permission to appeal. We are unpersuaded.
As a general proposition General Statutes § 54-96 authorizes the state to appeal questions of law in a criminal case only if the trial court grants permission to
appeal.  Section 54-96, however, does not preclude an appeal by the state when the "denial was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. In such cases the statute's condition requiring the court's permission to appeal cannot serve to insulate a trial court from review by this court; rather, the statute as a whole remains operative to allow appeal by the state." State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). Although we accord great deference to the trial court's discretionary rulings on these matters, that does not mean [214 Conn. 661] that its decision is shielded from our scrutiny. State v. S & R Sanitation Services, Inc., supra, 202 Conn. at 312, 521 A.2d 1017. Section 54-96 does not deprive this court of jurisdiction simply because the trial court gave "considered reasons" when it denied the state permission to appeal.
In its memorandum of decision, the court set forth its reasons for refusing to grant the state permission to appeal. Its rationale, the trial court stated, was that the state was seeking to appeal questions of fact rather than questions of law. Since the state can appeal only questions of law, the court reasoned that it could not appeal the issues raised. See General Statutes § 54-96. The issues which the trial court, in its memorandum of decision, deemed factual were: (1) whether the date of the alleged bribe is a material element of the crime charged; (2) whether the alleged omissions from the arrest warrant affidavit were material to the crime of bribe receiving; and (3) whether probable cause existed if these omissions were included in the arrest warrant affidavit.
The underlying premise of the trial court's reasoning is unsound. The issues raised by the state are not purely factual but also involve questions of law that we have frequently reviewed on appeal. Our opinions provide abundant authority that all of the issues that the trial court deemed precluded from review present questions that we can and will consider. We have held that a judgment of dismissal with prejudice is an appealable issue within the provisions of § 54-96. State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983); State v. Audet, 170 Conn. 337, 341, 365 A.2d 1082 (1976). We also have often reviewed a trial court's probable cause determination; State v. Patterson, 213 Conn. 708, 717, 570 A.2d 174 (1990); State v. McPhail, 213 Conn. 161, 168, 567 A.2d 812 (1989); State v. Mitchell, 204 Conn. 187, 205, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. [214 Conn. 662] 293, 98 L.Ed.2d 252 (1987); see also State v. Boyd, 214 Conn. 132, 143, 570 A.2d 1125 (1990), (Shea, J. dissenting), and cases cited therein; State v. Middleton, 20 Conn.App. 321, 331, 566 A.2d 1363 (1989); and determined on appeal, whether the date of an alleged offense is a material element of the crime charged. State v. Evans, 205 Conn. 528, 535, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1292, 99 L.Ed.2d 502 (1988). Furthermore, whether an alleged omission in an arrest warrant affidavit is "material" to the crime charged involves a mixed question of law and fact and is reviewable on appeal. See United States v. Condo, 782 F.2d 1502, 1506 (9th Cir.1986); United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985).  In short, what the trial court labeled factual determinations are, under the governing precedents, appealable legal issues.
Those issues, moreover, are important both from a legal and public policy standpoint. Pretrial dismissal of criminal charges in any type of case is such a drastic remedy that it should not be resorted to
lightly. Further, the appropriateness of the dismissal of bribery charges, a crime that involves a violation of the public's trust in our elected officials, would seem to be particularly deserving of a full review by an appellate court. We are not persuaded that the facts of this case warrant a different conclusion. Confidence in our judicial system would be severely eroded if the trial court had the authority to dismiss charges against this defendant Before trial on an unsound premise, and could then [214 Conn. 663] insulate its decision from appellate review. This is especially true when the legislature has expressed its intent to prosecute such conduct; see State v. Ellis, 197 Conn. 436, 476, 497 A.2d 974 (1985); and when the issues raised by the state on appeal can be addressed without subjecting the defendant to a repeated determination of guilt or innocence. See United States v. Wilson, 420 U.S. 332, 345, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), overruled on other grounds United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) ("[a] defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial Before a second trier of fact"). These considerations should not evaporate through the erroneous classification of appealable issues as factual rather than legal. We conclude that the trial court abused its discretion in denying the state permission to appeal.  State v. Avcollie, supra, 174 Conn. at 111, 384 A.2d 315.
The defendant's second jurisdictional claim is wholly without merit. While the defendant correctly asserts that the state may appeal only those issues it has requested permission to raise; State v. Castonguay, 194 Conn. 416, 419 n. 5, 481 A.2d 56 (1984); the state fully set forth all of the issues in the current appeal in its memorandum of law in support of its motion for permission to appeal. In its memorandum, the state specifically raised the issue of whether a dismissal, based in large part upon an alleged Franks violation, was appropriate. We conclude that we have jurisdiction to decide the issues presented in this appeal.
On appeal, the state principally argues that the trial court erred when it dismissed the charge against the [214 Conn. 664] defendant. Before we can fully consider this argument, however, we need to address the state's subordinate claims of error. The state asserts that the underlying error in this case, which led to the eventual dismissal of the bribery charge against the defendant, occurred when the trial court granted the defendant an evidentiary hearing pursuant to Franks v. Delaware, supra, on the basis of its conclusion that time was a material element of the offense of bribe receiving. We agree.
The following facts are pertinent to this claim. The arrest warrant affidavit alleges that, during the defendant's tenure as the Mayor of Waterbury, he had the ultimate authority to determine who would be granted the right to tow for the city. In 1985, Christopher Hill, while working at a family-owned business, Executive Auto Towing and Sales (Executive Auto Towing), was contacted by Thomas Gahan, an aide to the mayor. As a result of a conversation with Gahan, Christopher Hill believed that if Executive Auto Towing wished to continue to tow for the city, the Hills would be required to make a "contribution." On June 14, 1985, Thomas A. Hill, Jr., president of Executive Auto Towing, cashed a check for $3000. He placed the cash in an envelope and gave it to Gahan that day. Thomas Hill believed that the money was a donation to the Democratic Party and that was required if his company wanted to tow for the city. Gahan confirmed that the defendant sent him to Executive Auto Towing sometime in June, 1985, to pick up a "donation." Gahan stated that Hill gave him the envelope and "he then turned over the envelope" to the mayor on a date not specified, and "told the Mayor, 'I picked
this up from the Hills.' " The cash "contribution" never appeared on the financial records of either the Waterbury Democratic Town Committee or the Committee to Re-elect Mayor Bergin. The warrant affidavit did not allege a date when the defendant actually received the envelope.
[214 Conn. 665] The defendant filed a motion for a bill of particulars on April 25, 1988. In response, the state filed a bill of particulars in which it alleged that the defendant, through Gahan, had received a bribe in consideration for his decision to grant Executive Auto Towing the towing contract for the city of Waterbury. The state further alleged that "the defendant committed such crime on or about June 14, 1985." Unsatisfied with this response, the defendant sought a court ruling to limit the date of the alleged offense.  The state objected, arguing that the bill of particulars was sufficient and that the state was not required to be more specific about the date. Despite the state's objection, the defendant renewed his request for a specific date. On the third such occasion, the trial court ruled that "on or about June 14, 1985" meant that the defendant received the money on "June 14, 15, 16 or 17, 1985." Immediately thereafter the defendant disclosed that he had been in Anchorage, Alaska from June 13 to June 19, 1985, and that the state knew this, but nevertheless had failed to disclose it in the arrest warrant affidavit. On the basis of this alleged omission from the arrest warrant affidavit, the trial court granted the defendant's motion for a full Franks hearing because it concluded that the defendant had made a "substantial preliminary showing of a material omission by the fact that the defendant was in Anchorage, Alaska from June 13, 1985 to June 19, 1985."  On appeal, the state challenges the trial court's ruling: (1) that the date of the offense was a material element of the charge of bribe receiving; and (2) that the defendant was therefore entitled to a hearing pursuant to Franks v. Delaware.
[214 Conn. 666] When reviewing whether a Franks hearing is warranted, we recognize that there is a "longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant." State v. Dolphin, 195 Conn. 444, 457, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S.Ct. 103, 88 L.Ed.2d 84 (1985). In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant  at a Franks hearing, he must: (1) make a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit"; and (2) show that the allegedly false statement is necessary to a finding of probable cause. Franks v. Delaware, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676. If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary. Id., 171-72, 98 S.Ct. at 2684. Although the Franks decision referred only to false statements in the affidavit, we have held that "material omissions from such an affidavit also fall within the rule...." State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984).
Not all omissions, however, even if intentional, will invalidate an affidavit. People v. Stewart, 105 Ill.2d 22, 43, 473 N.E.2d 840, 85 Ill.Dec. 241 (1984), cert. denied, 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 283 (1985). In fact, an affiant may omit facts that he believes to be either immaterial or unsubstantiated. Id. Thus,
Before a defendant is entitled to a Franks hearing for an alleged omission, he must make a substantial preliminary showing[214 Conn. 667] that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause. United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986); People v. Stewart, supra, 105 Ill.2d 44, 473 N.E.2d 840, 85 Ill.Dec. 241. Even if the affiant "picks and chooses" the information that he includes in the affidavit, there is no Franks violation if, ...