Significant Developments in Criminal Law 1994-1995

Publication year2021
Connecticut Bar Journal
Volume 70.

70 CBJ 113. Significant Developments in Criminal Law 1994-1995


Significant Developments in Criminal Law 1994-1995


Familiar contours of the criminal law have changed. Driven by a groundswell of public concern over crime, time-worn features of the criminal justice system were swept away last year. Left in the wake of a probing legislative session is a landscape which includes a significantly revised death penalty and a watershed reconfiguration of the juvenile system. It remains to be seen how these and other legislative initiatives will weather the rigors of the Connecticut judiciary.

The tremors of last year's legislative enactments are stronger than those of the Connecticut Supreme and Appellate Courts. The most striking example of this is the death penalty. The General Assembly did not hesitate to ease the stringency of the state's capital punishment scheme, even though the Supreme Court had just affirmed the constitutionality of the procedure in State v. Ross. (fn1) Much of that settled by Ross is now open to question as the Supreme Court must apply a new constitutional calculus to assess the ebb and flow of the legislative response to capital crimes. As the justices navigate this new terrain, a volatile mix of elements will come into play - the court's deference to the legislature as a barometer of contemporary support for capital punishment, its reticence to decide state constitutional issues without adequate analytical justification, and its sensitivity to the development of the state constitution in criminal cases.

The philosophical differences between the justices may ignite these elements. Regular dissenters, justices Berdon and Katz have become increasingly isolated from Chief justice Peters, justice Callahan and justice Borden in criminal cases. The divergent paths of the justices continue to animate a dynamic period of development for Connecticut's criminal law.


A. State v. Breton

Connecticut's death penalty, always a contender for crimi


nal law issue of the year, again dominated the landscape. The Supreme Court reaffirmed the state's death penalty scheme in State v. Breton. (fn2) Yet, like State v. Ross, the court reversed Robert Breton's sentence of death for an error in the penalty phase of the trial. The defendant claimed, inter alia, that the special verdict form used at trial failed to require a unanimous jury verdict on mitigating factors and further failed to inform the jury that its verdict on aggravating and mitigating factors would determine whether the defendant would be sentenced to death. The court agreed that, because of ambiguities in the verdict form, "the record fails to demonstrate that the jury's finding of 'no mitigating factor' was the product of a unanimous vote." (fn3)

The confusion in the jury's verdict stemmed from its two answers to questions concerning the existence of a mitigating factor, one related to whether Breton had proven by a preponderance of the evidence that his mental capacity was impaired at the time of the crime, and the other pertaining to his character, background and history or the nature and circumstances of the crime. As to each question, the jury found no mitigating factor by checking a box next to the following statement: "No, we the jury do not unanimously agree that the Defendant proved this mitigating factor by a preponderance of the evidence." (fn4)

That was all the Supreme Court needed to hear. The syntax of the two questions resulted in reversal of Breton's death sentence. As justice Palmer explained for the majority of the court, -[t]he literal meaning of the response 'we the jury do not unanimously agree that the defendant proved [the] mitigating factor' is plain: the jury was unable to reach unanimous agreement that the defendant had proved the existence of the mitigating factor. Thus, the affirmance of that statement in response to the two questions on mitigating factors, definitively established only that one or more of its members had not found the existence of those factors; the answers do not necessarily establish that the jury had unanimously rejected any of the mitigating factors." (fn5) The trial court's instructions on the form also tended to underscore the error. (fn6)


The defendant in Breton also argued with some success that Connecticut's death penalty scheme unconstitutionally fails to assign the responsibility of imposing the death penalty upon the jury. Emphasizing the compartmentalized functions of the jury and judge in a capital felony sentencing proceeding, the defendant urged that neither entity takes responsibility for the imposition of the death sentence; the jury simply determines whether aggravating or mitigating factors exist and the judge then mechanically imposes sentence based upon those findings. The Supreme Court demurred resolution of this difficult issue in light of its reversal of the case on other grounds, but nonetheless conveyed its concern that, without clarification, the defendant may be denied his eighth amendment right to a capital sentencing jury that recognizes the gravity of its task and the "truly awesome responsibility" imposed upon it in a death penalty case. (fn7)

The Supreme Court did not hesitate to remove any lingering doubt that the jury, not the judge, decides whether a capital defendant is put to death or is imprisoned for life.

"It is imperative .... that the jury instructions in a capital case clearly and unequivocally explain to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release. We therefore caution the trial court at the new hearing to refrain from the use of any language suggesting that the judge's responsibility extends beyond merely implementing the jury's findings .... the responsibility for deciding whether the defendant will receive a sentence of death or life imprisonment without the possibility of release rests with the jury." (fn8)

The court further used its supervisory authority to require the inclusion of a prefatory statement to this effect in every special verdict form in all future capital cases. (fn9)


Predictably, justice Berdon dissented, adhering to his view that "the imposition of the death penalty constitutes cruel and unusual punishment under our state constitution and is therefore prohibited." (fn10) As he did in Ross, justice Berdon reiterated his opinion that, because the entire Supreme Court has yet to decide the constitutionality of the death penalty, the precedential effect of Ross and Breton is questionable until the remaining justices - Borden, Norcott and Katz - consider a death case. (fn11) The dissent also is notable for its reliance on "disturbing preliminary data" suggesting to justice Berdon, as it did in Ross, that "defendants who are convicted of murdering whites are much more likely to be sentenced to death than those convicted of murdering African-Americans." (fn12) Acknowledging that the data "is preliminary and that additional research, as well as mathematical analysis, must be conducted in order to determine whether these results are statistically significant," justice Berdon nonetheless concludes that he has "no reason to believe that the administration of the death penalty will prove any less discriminatory in Connecticut than it has been throughout the rest of the country." (fn13)

B. State v. Cobb

The amoebic law of proportionality review (fn14) received close scrutiny by the justices in a death penalty case yet to be decided


on its merits. In State v. Cobb, (fn15) the defendant sought to enlarge the class of cases to compare with his death sentence to include "all cases prosecuted in Connecticut after October 1, 1993, in which a capital felony could have been charged" as a capital case and which resulted in a homicide conviction, whether by plea or trial. (fn16) The gist of the defendant's argument, that expansion of the pool of cases was necessary "in order to present evidence that the death penalty scheme has been disproportionately applied to black defendants or to defendants whose victims were white," (fn17) received a lukewarm response by the court. The court was willing to forgive the defendant's failure to follow the technical requirements of Practice Book § 4066A given the "serious nature" of his claim, (fn18) but ultimately it concluded that the legislature did not intend proportionality review under General Statutes § 53a-46b(b)(3) to include all homicide cases prosecuted since 1973 in which a capital felony could have been charged. (fn19)

The court also was troubled by the defendant's presentation of "preliminary data" supporting an inference of racial disparity in the application of the death penalty. Although justices Berdon, Katz and Norcott, who dissented, would have permitted the expansion of the universe of cases immediately to evaporate "a dark cloud over the courts and the integrity of our judicial system," (fn20) the remaining justices (Chief justice Peters, justice Callahan and justice Borden, writing for the majority) disagreed, holding that such raw data must be viewed with caution. "Thus, the alarm expressed by the dissent is premature, because it assumes that the raw data have a degree of statistical significance that has not yet been established." (fn21) The court concluded, however, that it was appropriate to permit this defendant to present his statistical claim via a postappeal habeas corpus petition, in light of the "nature of the defendant's claim of systemic racial

or not the death penalty has been imposed ...." Conn Prac. Bk. §4066A. Expansion of the universe oT cases is permitted in particular cases upon an a publication...

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