Significant Developments in Criminal Law: 1999-2000

Publication year2021
Connecticut Bar Journal
Volume 74.






Capital cases occupied a significant and increasing portion of the Supreme Court's criminal docket during the past year. The Court saw some cases for the first time, while others returned following additional trial court proceedings.

For example, State v. Ross,(fn1) which first appeared in the reported cases in 1994,(fn2) returned to the Supreme Court last term as a consolidated appeal by both the state and the defendant. The state's appeal, brought on the granting of certification pursuant to General Statutes section 52-265a,(fn3) arose from the second penalty-phase hearing to determine whether the defendant would receive a sentence of death or life imprisonment. Ross argued in the trial court that although he was permitted, under General Statutes section 53a-46a(c),(fn4) to introduce at the penalty hearing mitigating evidence which might, under other circumstances, be excludable as hearsay, the state's presentation of evidence offered to rebut mitigation was restricted by the usual rules of evidence. The trial court agreed and the state appealed.

Reversing the trial court, the justices held that the plain language of section 53a-46a(c) permitted the state, as well as the defendant, to introduce testimony on the issue of mitigation that otherwise might be considered inadmissible hearsay. Furthermore, "[t]he defendant has pointed to no federal precedent requiring the state to shoulder a higher evidentiary standard to rebut the existence of a mitigating factor than


the defendant must satisfy to carry his burden of proof."(fn5)

The Supreme Court likewise rejected Ross's appeal from the trial court's denial of his motion to bar further prosecution and his motion for a new trial, both based on a claim that the state had failed to timely disclose to him certain exculpatory materials, in violation of Brady v. Maryland.(fn6) The Court concluded that the trial court's finding that disclosure had been made prior to the 1987 trial was not clearly erroneous and that, in any event, the information at issue, which involved conversations between the trial prosecutor and the state's psychiatric expert, was not material within the meaning of Brady because it was available to the defendant through other sources.(fn7) Dissenting from the majority opinion authored by Justice Peters, Justice Norcott reiterated his previously expressed view that imposition of the death penalty violates the Connecticut Constitution.(fn8)

Also returning to the Court was State v. Webb,(fn9) which had been remanded to the trial court for a hearing regarding the validity under the state constitution of lethal injection as a means of execution.(fn10) The trial court denied the defendant's constitutional challenge to General Statutes section 54-100, and the Supreme Court affirmed, concluding that lethal injection does not offend current standards of decency and is permissible under both the federal and state constitutions. Justices Norcott and Katz disagreed, writing separate dissenting opinions explaining why they believe that imposition of the death penalty violates the state constitution under all circumstances.(fn11)

In State v. Cobb,(fn12) a closely divided Court affirmed in all respects the death sentence imposed. The 236-page majority


opinion was authored by Justice Borden and joined by Chief Justice Callahan and Judge Edward Y. O'Connell of the Appellate Court. Justice Peters concurred in the portion of the majority opinion dealing with trial and sentencing issues, but concurred only as to the result with that part of the opinion that dealt with proportionality review.(fn13) Justices Berdon, Katz, and Norcott each dissented separately.

The forty-five challenges raised by the defendant touched on every facet of the proceeding from Cobb's confession, to his waiver of a jury trial, to the state's theory of aggravation. Among the more important capital issues addressed by the Court was whether Cobb's burden to prove a mitigating factor required him to prove only the underlying factual basis of the factor, or whether he also bore the burden of proving that the factor was mitigating in nature.

The defense argued that the sentencer's consideration of a proposed mitigating factor should be bifurcated; although a defendant must establish the underlying factual basis for the factor by a preponderance of the evidence, he should not be required to prove that the factor is mitigating in nature. Rather, the sentencer should simply apply its reasoned moral judgment. The Court disagreed, noting that neither the constitution nor the statutory language required the result suggested by the defendant. Although the Court acknowledged that the question of whether a non-statutory factor, once established, is mitigating in nature involves the exercise of reasoned moral judgment, it concluded "[t]hat does not mean however, as the defendant also suggests, that a burden of persuasion may play no useful role in that exercise of judgment. . . . [R]ather than leave the sentencer bewildered regarding the degree of certitude that it must have in order to find a mitigating factor, the statute gives the sentencer guidance."(fn14)

The Court also rejected the claim that Cobb was denied a fair penalty hearing when the trial court refused to require the state to file a bill of particulars regarding its aggravating factors. The Court concluded that, just as in non-capital matters, the denial of the motion for a bill of particulars was a


matter within the discretion of the trial court.(fn15)

Finally, the Court considered and rejected the claim that double jeopardy was violated when Cobb was convicted of two counts of capital felony in connection with the death of the same victim.16 Merger of these two counts prior to the penalty hearing was unnecessary, the Court reasoned, because the threat of multiple punishments is illusory: The defendant can be executed only once. "Furthermore, in that penalty hearing, one of the principal factors would be whether there were aggravating and mitigating factors involved in the nature and circumstances of the crime . . . presumably the panel would be confined to determining whether those factors applied only to the surviving capital felony conviction, and not to the violation that was combined therein."(fn17) Double jeopardy principles should not require such a restriction on the state's charging abilities.

The Supreme Court confronted jury selection issues in the capital context in State v. Griffin.(fn18) Although the jury ultimately found the existence of both aggravating and mitigating factors, thus sparing the imposition of a death sentence, Griffin claimed that the state improperly "death qualified" potential jurors prior to the guilt phase of the trial, depriving her of her state constitutional right to trial by an impartial jury.(fn19)

Recognizing that the United States Supreme Court had rejected this claim,(fn20) the Court concluded that article first, section 19 of the state constitution does not mandate a different result.(fn21) At the core of the Court's constitutional analysis was the conclusion that the state constitution incorporates the


standard of "impartial jury" provided by the federal constitution:

[A] jury that is: (1) composed of individuals able to decide the case solely on the evidence and in accordance with the court's instructions regarding the law; and (2) properly selected from a venire panel that is composed of a representative cross section of the community. Identification and excusal for cause, prior to the guilt phase of a capital felony trial, of venire-persons whose views concerning the death penalty preclude them from serving as jurors at the sentencing phase, but not at the guilt phase, of the trial does not violate the state constitutional guarantee of trial by an impartial jury.(fn22)

Justice Norcott, in an opinion joined by Justice Katz, dissented, concluding that the death qualification of a jury violates sections 8 and 19 of article first of the Connecticut Constitution.(fn23) Writing separately, Justice Berdon reached the same conclusion, and also reiterated his view that the death penalty itself is constitutionally impermissible. "I have pointed out in my dissents . . . that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution."(fn24)

State v. Hafford,(fn25) in which the capital felony defendant again received a sentence of life imprisonment without the possibility of parole, provided further opportunity for statutory construction in the capital context. Hafford had been convicted of capital felony, felony murder based on a predicate felony of sexual assault in the first degree, and murder. On appeal, he argued that the trial court lacked jurisdiction over the felony murder charge because probable cause was never found as to that charge, as required by General Statutes section 54-46a.(fn26) The Court rejected this claim, reasoning that in finding probable cause for capital felony arising out of


sexual assault, the trial court necessarily also found probable cause for the charge of felony murder arising out of a sexual assault. The Court concluded that the language "in the course of the commission of a sexual assault," as used in the capital felony statute, has the same meaning as "in the course of and in furtherance of" as used in the felony murder statute. Thus, in this case, the felony murder was a lesser included offense of the capital felony.


The Court made several forays into statutory...

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