Significant Developments in Criminal Law 1995-1996

Publication year2021
Connecticut Bar Journal
Volume 71.





The tale of turbulence told in last year's survey(fn1) has been replaced by relative calm. The landmark revisions to Connecticut's death penalty and the juvenile justice system have yet to appear in the reported cases, the stirrings of the Connecticut Supreme Court in state constitutional cases are quelled and, with a few important exceptions, the cases are less dramatic than those discussed in last year's survey. This more traditional tone has allowed subtle issues of criminal law to emerge from the shadows, illuminating important developments in capital litigation, state constitutional law, police practices, substantive offenses, and evidence.


A death sentence has been affirmed by the Connecticut Supreme Court. State v. Webb (fn2) presented the first opportunity for the court to consider a death penalty case en banc, recent cases having required the disqualification of one or more of the justices. A majority of the court laid to rest once and for all a litany of federal and state constitutional challenges to the state's capital felony scheme.(fn3) The 162-page majority opinion was authored by justice Borden and joined by justices


Callahan, Palmer and Chief justice Peters. justices Katz and Norcott joined in the dissenting opinion of justice Berdon although, as will be seen, justice Norcott's disagreement with the majority is based more on the application of capital punishment than on the philosophical arguments voiced by Justice Berdon.

Webb challenged the state's death penalty law on grounds previously rejected in State v. Ross (fn4) and State v. Breton.(fn5) The court summarily dispatched the core of these claims again by holding that "the imposition of the death penalty does not violate the prohibition against cruel and unusual punishment derived from the due process clauses of article first, §§8 and 9, of the state constitution."(fn6) The defendant's novel "social compact" theory, however, drew more extended consideration by the justices. According to Webb, the social compact clause of article first, §1 "incorporates social contract theory into the state constitution, requiring [the court] to declare invalid those acts of the legislature that exceed the scope of the social compact," namely, "an absolute natural right to life" and that no citizen would consent to a social compact in which the government would be permitted to deprive them of their lives. The court was not convinced by Webb's argument, noting that unenumerated rights exist, if at all, "only if they are grounded in or derived from the constitutional text or Connecticut's unique constitutional record." Further, the court was unpersuaded that the interpretation of the state charter "within the context of the times" requires the invalidation of the death penalty to meet the modem expectations of the state's citizens because, as the court held in State v. Ross, "the enactment of the death penalty statutes by our elected representatives provides the strongest evidence of the contrary proposition." (fn7)

Although State v. Webb touched myriad trial and penalty phase issues ranging from the right of self-representation to jury selection to jury instructions, three points are worthy of


particular comment. First, the court held that the trial court's broadened definition of the "especially heinous, cruel or depraved" aggravating factor was erroneous because it permitted the jury to find the murder "especially cruel" where "a person receives pain from repeated striking or mental distress from the anticipation of impending pain or death" contrary to the court's previous judicial gloss on the term "especially cruel" to include only "the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying
killing."(fn8) Noting that the judicial gloss had been applied to cure the term's facial vagueness, the court nonetheless accepted the state's argument that the en-or was harmless beyond a reasonable doubt, at once avoiding reversal of the death sentence in the case and acknowledging the general proposition that the harmless error doctrine applies to capital cases. Here, the court relied on federal precedent in finding the instructional error harmless because: (1) evidence of the aggravating factor was properly before the jury; (2) the trial court's definitions of "heinous" and "depraved" were correct and each could independently support the jury's finding of the aggravating factor; (3) the mandatory nature of appellate review of death sentences rendered harmless error analysis appropriate; (4) the application of harmless error analysis was consistent with the court's prior applications of the rule; and (5) there was overwhelming evidence to support the jury's finding of another aggravating factor, namely that the defendant had committed the murder during the course of an attempted sexual assault or during the flight from that crime, of which previously he had been convicted

Second, the court examined for the first time the boundaries of proportionality review and concluded, consistent with Pulley v. Harris,(fn9) that this review was not constitutionally required, but nonetheless was statutorily intended "as protection against the wanton and freakish imposition of the death penalty by an aberrant jury."(fn10) The court also was of the view that the burden of proportionality review is one that rests solely on the shoulders of the justices, irrespective of "notions


of burdens of persuasion" by the parties. Discussing at length the practices of other death penalty states which utilize comparative proportionality review, generally classified as either the "frequency method" and the "precedent seeking method,"(fn11) the court opted for the latter, noting that, had the legislature contemplated the statistical model, it would be impossible to implement, because the fifteen cases within the universe of comparison are far too small to produce statistically significant data. Further, only one of the twenty-seven death penalty states utilizes the frequency method. That being said, the court concluded that the pool of "similar cases" for comparison consists only of capital felony convictions in which there was a penalty phase hearing, including such cases currently on appeal and, "absent exceptional circumstances wholly undermining the fundamental reliability of the fact finding process," those that have been reversed on appeal, where the conduct of the defendant is substantially similar to the case under review. Applying this standard, the court rejected the defendant's state and federal constitutional challenges, painstakingly compared Webb's conduct to that of other capital cases either decided by the court or pending before it, and ultimately held that "[t]here is nothing freakish, arbitrary, wanton or aberrational about the sentence in this case."(fn12)

Third, the court considered and agreed with the defendant that the General Assembly's 1995 amendment of the statute specifying the means of execution, from electrocution to lethal injection, necessitated a remand of the case solely to permit him to present his claim that lethal injection constitutes cruel and unusual punishment under the state constitution. The factual issues raised by the two forms of execution were sufficiently distinct, the justices held, so that Webb's failure to challenge lethal injection did not operate as a waiver. (fn13)

Justice Berdon's dissent reiterates his view that capital punishment violates the Connecticut constitution's prohibi


tion against cruel and unusual punishment. Lamenting that the majority's decision "prevents Connecticut from joining those humane and enlightened states and nations that continue to ban the penalty of death," Justice Berdon concludes that the "only remaining issue in this case is how Mr. Webb will be put to death." (fn14) The dissent expressed concern that the court "continues to evade the issue of whether racism exists with respect to the death penalty" and that the universe of cases for proportionality review is too small to assess adequately a death sentence, and should include all cases involving death eligible homicides.

The racial concerns expressed by justice Berdon were echoed in the separate dissent of justice Norcott, who clarified his view that, although the state constitution may permit the penalty of death for certain crimes, its application nonetheless "admits of an unacceptable opportunity for arbitrariness and the influence of racial discrimination to operate in the determination of who shall die at the hands of the state." (fn15) In justice Norcott's estimate, "[a]s long as racial prejudice is a factor in our lives, and it is an undeniable f-actor in every fiacet of American life, there can be no place for a capital penalty in our society." (fn16)

State v. Ross (fn17) appeared in the reported cases yet again last term, this time presenting reserved questions of law regarding a proposed stipulation between the state and the PM se defendant to expedite the penalty phase proceedings on remand. A spectrum of questions reserved, ranging from the defendant's right to waive the presentation of mitigating evidence to the elimination of proportionality review of his death sentence, prompted understandable caution from the Supreme Court, which was concerned that "the applicability of the reserved questions of law to the rights of the parties depends upon contingencies that might never arise." The reserved questions, in the court's view, asked for what was akin to an advisory opinion and, as such, not a proper part of the


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