dissenting. I dissent for two reasons. First, the retrial of the defendant Latone James for felony murder as an accessory violates principles of fundamental fairness and his state constitutional right to due process of law. Second, although I do not decide the issue substantively, I find that the majority’s double jeopardy analysis is insufficient for the reasons I set forth herein.
I
The retrial of the defendant for felony murder as an accessory violates principles of fundamental fairness and the defendant’s state constitutional right to due process of law.1 By permitting the retrial, the majority effectively reverses this court’s decision in State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), and adopts the view articulated by the dissent in that case (Callahan, J., with whom Covello, J., joined) without acknowledging that it does so.
I begin by briefly restating the facts of the present case. The state charged the defendant in an information, *681as made more specific by a bill of particulars,2 with the crimes of felony murder, robbery and two counts of assault as a principal offender. At trial, the defendant conceded that he participated in the robbery by serving as the lookout, but testified that he never fired his pistol. Although the state sought to have the jury instructed that it could find the defendant guilty as either a principal or an accessory, the trial court, Fasano, J., correctly refused to do so based on the decision of Steve, because the defendant testified in reliance on being charged only as a principal. The jury found the defendant guilty of robbery, but deadlocked on the remaining three counts. Thereafter, the trial court sentenced the defendant on the robbery count and declared a mistrial on the three remaining counts. The state then sought to retry the defendant for felony murder, but charged him in a revised substitute information as both a principal and an accessory. The trial court denied the defendant’s motion to dismiss that information, and this appeal ensued.
Prior to this court’s decision in Steve, the Appellate Court in State v. Steve, 11 Conn. App. 699, 707-708, 529 A.2d 229 (1987), pointed out the following: “ ‘Due process requires that a criminal defendant be given notice of the specific charge against him and an opportunity to defend against that charge.’ State v. Franko, 199 Conn. 481, 491-92, 508 A.2d 22 (1986). Where a defendant is prejudiced by being charged with a substantially different crime after the commencement of trial, his due process rights are violated. See id., 492. Where a defendant is charged with an offense, he is on *682notice that he may be convicted as an accessory and a charge on accessory liability under General Statutes § 53a-8 does not ordinarily constitute a substantially different offense. See, e.g., State v. Crump, [201 Conn. 489, 495, 518 A.2d 378 (1986)]. In a case such as this, however, where the state’s pleadings affirmatively indicated that the defendant was being prosecuted as the principal and the issue of accessory liability arose only after the defendant had presented his case in obvious reliance upon the fact that he was being tried as a principal, we find that the jury was instructed to consider a theory of liability of which the defendant had no fair notice and which was beyond the scope of the state’s pleadings. See State v. Belton, 190 Conn. 496, 501-502, 461 A.2d 973 (1983) (where information charged that defendant ‘entered a building unlawfully,’ it was error of constitutional dimension for the court to instruct that he could be found guilty if they found he entered ‘or remainfed] unlawfully’ in the building). The state, therefore, bears the burden of proving that the error was harmless beyond a reasonable doubt. State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); State v. Belton, supra, 503-504.” I agree with the Appellate Court that a defendant’s state constitutional rights are violated when a court allows a jury to consider a charge of which the defendant has had no notice. State v. Steve, supra, 11 Conn. App. 706.
Although, on appeal from the Appellate Court, the majority of this court in Steve did not reach the constitutional issue, it made clear that principles of fundamental fairness and our rules of practice cannot allow to stand a conviction that is at variance with the offense charged by the state. State v. Steve, supra, 208 Conn. 47-48. The court consequently affirmed the reversal of the defendant’s conviction. Id., 48.
*683The present case differs only procedurally — not in principle — from Steve. In State v. Steve, supra, 208 Conn. 46, the defendant’s conviction was reversed because, although the information, as made more specific by a bill of particulars, charged him only as a principal, the trial court instructed the jury that it could find the defendant guilty either as a principal or as an accessory. Likewise, in the present case, the trial court should not be allowed to charge the defendant as an accessory in the retrial. The original information in the present case, as made more specific by a bill of particulars, charged the defendant with felony murder only as a principal. The jury was unable to decide on the defendant’s guilt or innocence on that count, and a new trial has been ordered in which the revised substitute information charges the defendant as either a principal or an accessory.
Surely, under the principles enunciated in Steve, the defendant can be retried for felony murder as a principal. But the rub in the present case is that the state seeks to retry him both as a principal and as an accessory, even though the defendant testified in his first trial in reliance on the fact that he was charged only as a principal. The majority evades the problem that Steve raises by stating merely that “[u]nlike [the defendant in] Steve, the defendant in the present case has the opportunity to formulate his defense in accordance with the knowledge of charges in the revised substitute information.” Such an opportunity, however, is merely fictive. The defendant cannot erase his testimony in the prior trial. His admission in that trial that he was an accessory to felony murder — an admission that he made in reliance on being charged with felony murder as a principal only — is carved in stone. Moreover, the defendant’s testimony will be admissible at the retrial.
This is true regardless of whether the defendant testifies in the second trial. For example, the defendant *684cannot testify at the second trial that he was not an accessory, because that would constitute perjury in violation of General Statutes § 53a-156.3 Indeed, even if the defendant does not testify, his testimony at the first trial is admissible as an evidentiary admission. See Bredow v. Woll, 111 Conn. 261, 263-64, 149 A. 772 (1930) (prior judicial admissions admissible as evidential admissions in subsequent proceedings); Hope v. Valente, 86 Conn. 301, 307, 85 A. 541 (1912) (party’s testimony in prior trial may be admitted in subsequent trial even if party does not testify in subsequent trial); see generally 1 C. McCormick, Evidence (4th Ed. 1992) § 159, pp. 643-44. Accordingly, I am unable to understand (and the majority is unable to explain) how the defendant could possibly modify his defense during the retrial. Therefore, I would hold that a retrial of the defendant on the charge of felony murder as an accessory violates principles of fundamental fairness and his state constitutional right to due process of law.
II
I cannot join the majority’s treatment of the defendant’s double jeopardy claim because it lacks an adequate substantive analysis. First, State v. Boyd, 221 Conn. 685, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992),4 upon which the majority relies, does not determine whether the principles of double jeopardy are violated in the present case. In Boyd, we based our decision to allow a retrial on *685the fact that the “[two] theories, known as ‘waiver’ and ‘continuing jeopardy,’ enable the state to retry a defendant who has appealed and has had a felony murder conviction set aside, even though a conviction for the predicate offense remains intact.” Id., 692. The majority’s attempt to analogize Boyd to the present case ignores the significance of the appellant’s waiver in Boyd, an aspect that is wholly absent from the present case, wherein retrial is predicated on a mistrial, not reversal upon an appeal.
Second, the majority claims that a mistrial on the greater offense, when the defendant is convicted on the lesser offense that is a predicate for the greater offense, does not terminate jeopardy, and therefore, a retrial on the greater offense does not violate the principles of double jeopardy. In other words, the majority claims that jeopardy does not attach when there is a mistrial on felony murder because the retrial is merely a continuing prosecution, even though an element of felony murder has already been decided by the jury in the first trial. But see Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (“[w]hen, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbeiy with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one”); Brown v. Ohio, 432 U.S. 161, 168-69, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (immaterial whether original conviction was for greater or lesser crime when applying double jeopardy principles that bar successive prosecutions). In an attempt to bolster its conclusion, the majority in the present case cites cases that allow a retrial, subsequent to a mistrial, for a single offense that does not involve a conviction of a lesser included offense. See, e.g., Illinois v. Somerville, 410 U.S. 458, 462, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. *686165 (1824); State v. Van Sant, 198 Conn. 369, 377, 503 A.2d 557 (1986). The precedent of these cases, however, cannot reach beyond a retrial that implicates only a single charge. Furthermore, the majority’s analysis overlooks the fact that a subsequent conviction of felony murder as either an accessory or a principal is a foregone conclusion in this case because of the robbery conviction. Such a situation distinctly implicates the guarantee of the double jeopardy clause, which protects defendants from subsequent prosecutions for the same offense after conviction. See generally North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (explaining guarantees of double jeopardy clause), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 802, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).
Nevertheless, because I find the majority’s analysis insufficient with respect to the issue of double jeopardy, I leave it for another day.
“In all criminal prosecutions, the accused shall have a right ... to be informed of the nature and cause of the accusation .... No person shall ... be deprived of life, liberty or property without due process of law . . . .” Conn. Const., art. I, § 8.
“The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise. State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). A bill of particulars limits the state ‘to proving that the defendant has committed the offense in substantially the manner described.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).” State v. Steve, supra, 208 Conn. 44-45.
General Statutes § 53a-156 (a) provides: “A person is guilty of perjuiy if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true.”
The Second Circuit Court of Appeals, in a subsequent decision affirming the denial by the Unité3 States District Court for the District of Connecticut of a petition for habeas corpus, left open the question of whether “Boyd’s burglary conviction and felony murder charge constitute^] the ‘same offense’ for purposes of double jeopardy.” Boyd v. Meachum, 77 F.3d 60, 64 (2d Cir.), cert. denied, 519 U.S. 838, 117 S. Ct. 114, 136 L. Ed. 2d 66 (1996).