Developments in Connecticut Criminal Law: 1988-89
| Publication year | 2021 |
| Pages | 63 |
64 CBJ 63. Developments in Connecticut Criminal Law: 1988-89
Over the past term, the Supreme and Appellate Courts embarked on few new departures in the area of criminal law and procedure. Instead, the courts exhibited caution and an interest in refining recent precedent.
Our courts' cautious approach was most evident in State v. Golding. (fn1) In Golding, the Supreme Court undertook a comprehensive reconsideration of the prevailing standard for reviewing unpreserved claims on appeal. The Golding decision, however, reflected merely a reiteration of the original principles underlying that standard. The Court's inclination to refine recent precedent was also apparent in State v. D'Ambrosia, (fn2) which continued the judicial erosion of the privilege safeguarding patient-psychiatrist communications.
Although slow to stir, the courts made it clear in State v. Williamson (fn3) that they are now willing to punish the state by barring testimony and ordering new trials if the police fail to preserve witnesses' taped statements. Ultimately, the signal decision of the past term may turn out to be State v. Breton, (fn4) which opened the struggle over the constitutionality of the state's death penalty statute.
Despite the term's relative conservatism, the Supreme Court laid the groundwork for major innovation by granting certification on two state constitutional law issues. In State v. Morrissey (fn5) and State v. Marsala, (fn6) the Court will decide whether article first, § 7 of the state constitution permits a good faith exception to the rule excluding illegally seized evidence. In State v. Lamme, (fn7) the Court will determine whether article first, § 9 of the state constitution, which mandates that detentions be "clearly warranted by law," obliges the police to have more than reasonable and articulable suspicion before conducting warrant-less investigative stops or detentions.
This article surveys the major decisions of the 1988-89 term. It first focuses on individual decisions of special significance. Next, cases affecting police practices and pretrial and trial proceedings are considered. Finally, cases concerning particular crimes and defenses are highlighted.
The prevailing standard for reviewing unpreserved constitutional claims on appeal, as set out in State v. Evans, (fn9) is that the record must adequately support a claim that the accused has been clearly deprived of a fundamental constitutional right and a fair trial. (fn10) The starting point for the Golding Court's reevaluation of this standard was the acknowledgement that Evans had been applied inconsistently since its promulgation. Rejecting a "pure plain error standard," the Court articulated "guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard ...." (fn11) In failing to employ a single standard for constitutional and non-constitutional claims that are unpreserved, the Court consigned the latter type of claims to plain error analysis.
The new guidelines require that an accused create an adequate record for review, allege a violation of a fundamental constitutional right, show that a constitutional violation clearly exists and resulted in an unfair trial, and demonstrate that the state could not prove the harmlessness of the constitutional violation beyond a reasonable doubt. (fn12) These guidelines do little more than stress what was forgotten in the original Evans standard, which is that appellate review for unpreserved claims is contingent upon a showing not only of an error of constitutional magnitude, but also that such an error would have rendered the entire trial unfair. The fact that a harmless error component has been added contributes nothing to the Evans standard, because if there is a demonstration that a constitutional error renders a trial unfair, such an error cannot be harmless.
Although litigants may touch upon all aspects of the Golding guidelines, the focus of their attention undoubtedly will be on the extent of the alleged prejudice to the accused. To do otherwise, the Supreme Court observed, and "delve deeply into the constitutional merits of a claim that can appropriately be resolved in accordance with the relevant harmless error analysis ... would be a waste of judicial resources ... and a pedantic exercise. . ." (fn13)
Our Supreme Court addressed a dilemma in D'Ambrosia that had not been resolved to its satisfaction in previous decisions: how can an accused, in seeking to make the necessary showing for an in camera inspection of a witness' privileged psychiatric records, demonstrate the relevancy and non-cumulative nature of those records without any knowledge of their contents? The D'Ambrosia Court resolved this dilemma by permitting an initial, partial breach of the privilege., D'Ambrosia furnishes defendants with access to some information from protected records and forces witnesses either to waive the privilege for limited purposes or be precluded from testifying. (fn15) After D'Ambrosia, what remains to be clarified is the scope of an accused's initial access to privileged psychiatric records and whether such access is a matter of right or must be predicated upon some as yet unspecified showing.
In reversing the Appellate Court, the specific error found by the Supreme Court was the failure to allow cross-examination of a key state witness on whether there were any psychiatric reasons for his hospitalization for alcoholism treatment and whether he had received a diagnosis during the hospitalization. (fn16) By forcing a witness to choose between testifying or maintaining the privacy of his psychiatric treatment so early in the inquiry into whether psychiatric records contain information bearing upon testimonial capacity, the defense has been handed a powerful means for discouraging the testimony of unfavorable witnesses.
After repeated warnings that Practice Book § 752 requires the preservation of a witness' tape recorded statements, State v. Williamson marks the first time a new trial has been ordered and a witness' testimony precluded because of police failure to save tapes. The Supreme Court agreed with the Appellate Court that a police department's deliberate erasure of the victim's tape-recorded statements probably affected the outcome of the trial. (fn18) The majority's unwillingness to deem the Practice Book violation harmless, based on the existence of a transcript of the destroyed tape-recording, was criticized by justice Shea, who argued in dissent that "common experience" would indicate only a remote possibility of "some significant discrepancy between" the account of crime on the tape and the transcription. (fn19) Seen in this light, the decision may reflect, more than anything else, the majority's determination to penalize a police department for failing to implement assiduously the Court's numerous opinions directing the preservation of witnesses'tape-recorded statements. (fn20)
The Supreme Court did, however, reject the Appellate Court's determination that the deliberate nature of the erasure alone demonstrated bad faith. The Court noted that the state had not attempted to thwart discovery and deprive the defense of information. (fn21) Nevertheless, the fact that evidence was destroyed deliberately prompted the Supreme Court to shift the burden to the state to prove the harmlessness of the Practice Book violation. (fn22) This burden shifting, as justice Shea points out, flies in the face of the general rule that an accused bears the burden of establishing prejudice resulting from Practice Book violations. (fn23) The Court did not resolve whether the state was required to prove the error harmless beyond a reasonable doubt because it found that the state bad not satisfied the less demanding standard of proving the error was probably harmless. (fn24)
The Breton Court turned back a vagueness challenge, under the eighth and fourteenth amendments to the United States constitution, to the aggravating factor "especially cruel" contained in Connecticut's death penalty statute. (fn26) While acknowledging that this term is "unconstitutionally vague standing alone," the Court undertook the task of furnishing it with a limiting construction. (fn27) The judicial gloss placed on the term requires "the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing." (fn28) The Court's construction of "especially cruel" rested on its perception of the legislature's intentions. (fn29) judgment was expressly reserved, and future litigation can be expected, on the questions of whether the state constitution provides greater relief than that afforded by its federal counterpart, and whether "the legislature may constitutionally broaden the definition of the term 'especially cruel.'" (fn30)
Justice Glass, in his dissent, "profess [ed] disappointment with the majority's summary dismissal" of the defendant's claim under the state constitution. (fn31) He suggested that any death penalty standard would not survive state constitutional scrutiny because there is always...
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