Developments in Criminal Law 1993-1994

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 69 Pg. 293
Connecticut Bar Journal
Volume 69.

69 CBJ 293. Developments in Criminal Law 1993-1994


Developments in Criminal Law 1993-1994


The Connecticut Supreme Court confronted a number of significant criminal cases during the 1993-1994 term, including the first comprehensive interpretation of the state's death penalty since its adoption in 1973. The court's willingness to confront state constitutional issues is alive and well, but it is tempered by an increasing insistence upon comprehensive briefing of such claims by the defendant. Having boldly explored the state constitutional universe for over a decade, a majority of the court now clearly expects counsel to substantiate c aims under the Connecticut constitution before it will venture into the unexplored reaches of the state charter. (fn1) Even when it considers constitutional claims, the road to resolution is seldom smooth. As in past years, dissents by Justices Berdon and Katz are the rule, not the exception, and the debate between the Justices has become acrimonious at times. A majority of the court, usually Chief Justice Peters, Justice Callahan and Justice Borden, has been occasionally moved to respond to the strong dissents of Justice Berdon, with a directness virtually unknown prior to this decade.(fn2) The dissenting opinions of Justice Berdon sometimes are too pointed, but they also have shaped the contours of the law. Probing and goading, his dissents have, at the least, illuminated the decision-making process of Connecticut's highest court.

I. STATE v. Ross

By far the most significant criminal case of the last term was State v. Ross. (fn3) In a decision spanning 103 pages, Chief Justice Peters authored a landmark majority opinion of the court turning back virtually every state and federal constitutional challenge


raised by the defendant, Michael Ross, who had been sentenced to death in1987. The standards enunciated by the court in Ross greatly narrow the available constitutional bases for challenges to the state's capital punishment scheme and will guide 'all future capital cases in Connecticut.

Clearly cognizant of its obligation to provide guidance in this analytically difficult area of the criminal law, Chief Justice Peters's opinion for the 4-1 majority is a model of clarity. Addressing the validity of the state's death penalty under federal standards, the court concluded that Connecticut's three-tiered capital sentencing procedure, in which the class of death eligible defendants is progressively narrowed by (1) discrete categories of capital felonies, (2) aggravating factors and (3) mitigating factors, the court found that the statutory scheme satisfied Eighth Amendment standards both facially and as applied in the case. "The multi tiered pyramid meets the prerequisite of consistency and reliability by guiding the capital sentencer's discretion with clear and objective standards that narrow the class of defendants eligible for the death penalty and by providing a meaningful basis for distinguishing between those cases in which the death penalty is imposed and those in which it is not. " (fn4)

The court was equally unpersuaded that Connecticut's death penalty violated the Connecticut constitution, either facially or as applied. Applying the standard for state constitutional analysis adopted by the court in State v. Geisler, (fn5) the court observed that the text of the state constitution contains repeated references to the death penalty, that the historical underpinnings of capital punishment in the state date back to 1620, and that the most telling indication of contemporary values as to the, death penalty was found in the enactments of the state legislature. Cognizant of the fact that thirty-seven states had adopted the death penalty, the court concluded, consistent with the decisions of other state courts, that "[w]hen, in the course of a decade, thirty-seven states call for the death penalty, the probability that the legislature of each state accurately reflects its community's standards approaches certainty." (fn6)


While the defendant's systemic challenges to Connecticut's death penalty scheme were rejected, the court nonetheless found harmful error in a crucial evidentiary ruling, at the penalty phase hearing in the case. The trial court excluded a letter sent by a court-appointed psychiatrist to the prosecutor which revealed the psychiatrist's change of position as to the mitigating role of the defendant's psychopathology. While the state argued that the letter was properly excluded because it was not relevant to any mitigating factor in the case and was in any event unreliable, the defendant argued that its exclusion impaired his ability to present" [a]ny information relevant to any mitigating factor ... regard less of its admissibility under the rules governing admission of evidence in trials of criminal matters . . . ." (fn7) The court agreed that the psychiatrist's letter "corroborated the defense psychiatric experts' opinions that the defendant suffered from sexual sadism" and therefore the exclusion of such "unique evidence was more likely than not to have affected the result of the sentencing hearing." (fn8) The court therefore affirmed the defendant's convictions of capital felony, but reversed his death sentence and ordered a new penalty hearing in the case. In an unusual postscript to its decision, remarkable both for its brevity and grasp of the essential controversy, the court succinctly states:

The defendant kidnapped and killed four young girls, and sexually assaulted three of them, in a manner that was especially cruel, heinous or depraved. Imposition of the death penalty requires more, however. Even a defendant who has offered no persuasive legal excuse for his felonious conduct is entitled to have a sentencing jury consider extenuating circumstances that may explain his behavior and mitigate his moral culpability and may therefore counsel against the ultimate sanction of death. (fn9)

Justice Berdon's dissent is at once a visceral and eloquent rejection of the death penalty. It addresses nearly every aspect of the majority opinion and goes to lengths to graphically describe death by electrocution, lethal injection, and anecdotal accounts of public reaction to executions, all in support of the Justice's view that capital punishment debases human dignity.(fn10) Drawing


upon the "evolving standards of decency that mark the progress of a maturing society" first announced in Trop v. Dulles, (fn11) Justice Berdon discount the majority's deference to the state legislature or public opinion in support of the death penalty, and would instead apply a six-part analysis as a barometer of community standards. The test, which in its application suggests its conclusion in capital cases, asks: whether the punishment is degrading to the dignity of the human being; whether, in the past, the punishment has been administered in an arbitrary and capricious manner; whether the punishment has been imposed in a discriminatory fashion; whether the punishment serves any legitimate purpose; and whether the punishment is so final and complete that error cannot be corrected. (fn12) Apparent disregarding the frequent references to capital punishment in the state constitution, Justice Berdon instead concludes that "[I]nextricably interwoven into the fabric of [Article First, §8 and Article First, §9] is the right of every person to be free from such punishment no matter what the crime that person has committed". This is especially true, according to Justice Berdon, where the mental capacity of the defendant is in question, noting Swifts conclusion in 1823 that "it would be cruel to punish him for his acts." (fn13) Perhaps the most notable aspect of the dissent is Justice Berdon's view that the case should have been deferred by the Supreme Court because, of the seven Justices of the court, only three could decide the case because Of the disqualifications of the other four. (fn14) This prompted an unusually strong rebuke by the Chief Justice who, in response, chastised Justice Berdon for urging the cruelty of the death penalty because of the delay in its implementation while, at the same time, urging "indefinite extension of the uncertainty and anxiety of a criminal defendant who is presently improperly being held on death row." (fn15) Justice Berdon summarizes his forty-nine page dissent as succinctly as that of the majority opinion authored by Chief Ju


stice Peters. In his view, "[n]otonly does the death penalty degrade the individuals who are sentenced to die, but it also degradesand dehumanizes a society that permits it to be imposed, calling into question the morality of every one of us." (fn16)


State v. Ross dwarfs other substantive offenses considered by the Supreme Court last term, but the court's consideration of one of Connecticut's less serious crimes - disorderly conduct -- provides, an equally fascinating case study of statutory interpretation. The statute, General Statutes §53a-182, (fn17) was challenged in State v. Indrisano, (fn18) where the court squarely confronted the defendants claim that the statute was vague, both facially and as applied, under the state and federal constitutions. In a lengthy and well-reasoned opinion for the majority, Justice Borden concluded that §53a-182(a)(1) was not facially vague nor was it vague as applied to the defendant, but nonetheless held that §53a-182(a)(2) was facially vague and remanded for anew trial. (fn19) But the court went on to apply a judicial gloss to the statute, preserving its constitutionality by rendering "it sufficiently clear for future cases. " (fn20) Cognizant of the strikingly similar circumstances presented in Colten v. Kentucky, (fn21) where the United States Supreme Court considered...

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