72 CBJ 215. Significant Developments in Criminal Law 1996-1997.

• Author: By SUSAN C. MARKS (fn*)

Connecticut Bar Journal

Volume 72.

72 CBJ 215.

Significant Developments in Criminal Law 1996-1997

215Significant Developments in Criminal Law 1996-1997By SUSAN C. MARKS (fn*)I. CAPITAL PUNISHMENT

The Supreme Court, having considered and resolved numerous state and federal constitutional challenges to the state's capital felony statutes in recent years, turned its attention in the past year to questions of statutory construction arising from implementation of those statutes. State v. Hamrrell (fn1) for example, presented the court with the task of interpreting the term "murder" in the context of the capital felony statute. A unanimous court rejected the state's argument that "murder," as used in the statute, (fn2) includes unintentional as well as intentional murder.

The defendant had been charged with arson, arson murder, and capital felony pursuant to General Statutes Section 53a-54b(8), which proscribes the murder of two or more persons in the course of a single transaction. At the hearing in probable cause the state failed to prove that the defendant acted with intent to cause the two deaths. The trial court dismissed the capital felony count, concluding that only intentional murder could be a predicate murder to a capital felony charge under Section 53a-54b(8). The state appealed, contending that "murder" as used in the capital felony statute was a generic term that referred unambiguously to alternate methods for committing the crime of murder. (fn3)

The Supreme Court disagreed, concluding that application of principles of statutory construction led to the conclusion that the term "murder" was ambiguous at best and should be interpreted in favor of the defendant. The court characterized as "forceful" the state's argument that the enactment of a statutory mitigating factor, applicable if the defendant "could not reasonably have foreseen that his conduct in the course of commission of the offense of which he

216was convicted would cause, or would create a grave risk of ,causing, death to another person," contemplated a charge of capital felony predicated upon unintentional murder. Ultimately, however, the justices concluded that the defendant's argument was equally strong and that it could not be concluded, based on the language of the foreseeability-based mitigating factor, that the legislature unequivocally intended the term "murder" in the capital felony statute to include unintentional as well as intentional murder. (fn4)

The court had the opportunity to apply the Harrell ruling in a related context in State v. Johnson. (fn5) Rejecting the state's argument that Harrell should be limited to its facts, the court held that at least under the factual circumstances of Johnson, felony murder could not serve as the predicate murder for a capital felony conviction.

Duane Johnson, the defendant, was convicted of capital felony as the result of his involvement in the burglary of a sporting goods store that culminated in the shooting death of a state trooper. Because there was sufficient evidence to support a finding that the actual killing of the trooper by the defendant's brother Terry was an intentional murder, the state argued that Harrell was not controlling. (fn6)

The court was not convinced, noting that the requirement of an intentional murder "refers to the underlying murder that the defendant was convicted of and that served as the predicate offense for the capital felony conviction." (fn7) As the defendant was convicted of felony murder, not intentional murder or aiding an intentional murder, the court applied Harrell to conclude that under these circumstances felony murder could not be the predicate for capital felony.

Justice McDonald, dissenting, agreed with the state that Harrell was not controlling. Noting that history clearly supports a legislative intent to protect police officers acting within the scope of their duties, he concluded that the majority's narrow interpretation served to frustrate that intent and to limit unnecessarily the protections available to both police

217officers and the public. The court applied the Johnson holding in State v. Smal (fn8) vacating the defendant's capital felony conviction, which was predicated upon a conviction for felony murder.

State v. Solek (fn9) provided further opportunity for statutory construction of the capital felony statute, specifically the provision applicable to murder in the course of the commission of sexual assault in the first degree. (fn10) The state's theory of the case had been that Solek had sexually assaulted the victim and aided in the intentional murder, although it was the codefendant Smith who actually killed the victim by strangulation. (fn11) The trial court dismissed the capital felony count on the grounds that the facts as alleged in the information failed to satisfy the requirements of General Statutes Section 53a54b(7). The state brought a public interest appeal pursuant to General Statutes Section 52-265a after the trial court denied the state permission to appeal the dismissal.

The Supreme Court reversed. Applying long-established principles of accessorial liability, the court concluded that although the legislative history of the capital felony statute did not expressly signal whether "murder" encompassed acts by accessories as well as principals, such an interpretation must have been intended.

The court likewise rejected the defendant's claim that the finding of no probable cause to charge the codefendant with capital felony precluded the capital felony charge in his case as well. Finding no probable cause with respect to the purported principal, the court reasoned, simply had no effect with regard to Solek. It was not a determination that ' as a matter of law, the codefendant could not commit the offense of capital felony; nor did it preclude the state from attempting to prove, in its case against the defendant, that Smith had committed capital felony. (fn12) The Solek decision also made clear that a defendant is not entitled to a pretrial judicial determination of eligibility for the death penalty. Whether imposition

218 a death sentence ultimately would be barred by General Statutes Section 53a-46a(h) is a question to be determined in light of the evidence presented at trial. (fn13)

2. STATUTORY CONSTRUCTION

   An additional foray into statutory construction in the context of the affirmative defense of insanity led to reversal of a murder conviction in State v. Wilson. (fn14) The defendant at trial claimed that he was entitled to the affirmative defense because of his delusional belief that the victim and the victim's son were systematically destroying his life. His claim was rejected by the jury.

   On appeal the defendant argued that the trial court failed to give an instruction defining "wrongfulness" under General Statutes Section 53a-13(a). (fn15) The instruction sought by the defendant would have defined "wrongfulness" as comprising a moral element so that "an accused is not criminally responsible for his offending act, if, because of mental disease or defect, he believes that he is morally justified in his conduct - even though he may appreciate that his act is criminal."

   The matter first was argued before five justices. Subsequent to oral argument the court decided, supra note, to request reargument before an en banc panel. The parties were asked to address specifically whether assuming "wrongfulness" is defined to encompass moral justification, such moral justification is defined by generally recognized societal standards, or whether it could reflect the defendant's own subjective standards.

   Concluding first that "wrongfulness" does properly reflect a moral element, the court then considered the standards proposed by the state and by Wilson, ultimately re

   219jecting both. The defendant contended that morality should be defined in purely personal terms while the state proposed defining morality by societal standards, such that a defendant will not be held responsible for criminal acts if he, because of mental disease or defect, lacks substantial capacity to appreciate that his actions were wrong under society's moral standards.

   Melding the personal and societal approaches, the court fashioned a standard accounting for a delusional defendant's own distorted perception of society's moral standards: "Accordingly, we conclude that a defendant may establish that he lacked substantial capacity to appreciate the 'wrongfulness' of his conduct if he can prove that, at the time of his criminal act, as a result of mental disease or defect, he substantially misperceived reality and harbored a delusional belief that society, under the circumstances as the defendant honestly but mistakenly understood them, would not have morally condemned his actions." (fn16) In other words, a defendant who sincerely believes society would approve his conduct if it shared his understanding of the circumstances underlying his actions would be entitled to the affirmative defense, even though he may have been aware that the conduct in question was criminal.

   Applying this standard to the evidence presented at trial, the court concluded that an instruction properly defining "wrongfulness" in terms of societal morality was warranted and that the trial court's failure to have given such an instruction necessitated reversal of the conviction. justices Berdon and Katz concurred separately. justice Berdon, concurring in the result, read the legislative history as definitively...