Developments in Connecticut Criminal Law: 2005

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 80 Pg. 185
Connecticut Bar Journal
Volume 80.


VOLUME 80, NO. 2



In the winter and spring of 2005 the central topic in criminal law in the Bar and in public discourse was the Michael Ross case. Before Mr. Ross's execution on May 13, 2005, there had not been an execution in Connecticut since 1960.(fn1) The attention of the Bar and the public was now drawn to the difference between debating capital punishment and actually imposing it. The previous debates on capital punishment had occurred politically and philosophically, sporadically and abstractly. But now startling events awakened the entire state to the imminent reality of Ross's execution.(fn2)

To function according to its constitutional and common law design, the criminal law depends on a trial and appellate process that is adversarial, not congenial. After multiple trial and appellate proceedings in his case over two decades, Ross had no interest in authorizing further adversarial testing of the legality of his death sentence. His personal decision unified the prosecution and Ross together against would-be "interested parties" who opposed his decision and feared its implications

* Clinical Professor of Law, University of Connecticut School of Law.

1 The last person executed in Connecticut before Michael Ross was Joseph Taborsky in 1960. The Connecticut State Law Library web-site contains a number of useful legal and historical materials on capital punishment in Connecticut history, including a list of the executions in Connecticut since 1894. See

2 Of course, the courts, prosecutors and defense counsel who had dedicated years of labor to the Michael Ross case had already long understood the extremely difficult issues of fairness and justice and finality that a capital case poses. The defendant's underlying capital convictions were affirmed in 1994, at which time the Supreme Court found error in the penalty phase of the trial and ordered a new sentencing hearing. State v. Ross, 230 Conn. 183 (1994), cert. denied, Ross v. Connecticut,513U.S. 1165,115S.Ct. 1133,130L.Ed.2d1095(1995). Thedefendant's appeal after the new penalty hearing again resulted in multiple sentences of death and was denied by the Supreme Court on June 1, 2004. State v. Ross, 269 Conn. 213 (2004). The public defender's office's first efforts to override Ross's decision to abandon further challenges to the judgment was heard and decided expeditiously in December, 2004, and January, 2005. State v. Ross, 272 Conn. 577 (2005) (on Dec. 1, 2004 trial court denied public defender office's motion for "next friend" status under Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990); on Jan. 14, 2005 Supreme Court affirmed, finding Ross not shown to be incompetent to appear in court and make his own decisions).

for capital punishment in Connecticut. There followed a blitz of state and federal legal challenges to Ross's competence in choosing to terminate post-conviction challenges in his name.(fn3) This article cannot do justice to the legal issues and the stalwart efforts of all the jurists, lawyers and others who exhausted their professional and personal energies in fulfilling their allotted roles in the case. The narrative of the Ross case needs to be fully chronicled and sufficiently reflected upon, but not here. The purpose of this year in review article is to direct the reader to a goodly number of the more interesting and important cases decided in Connecticut criminal law in 2005.


The biggest decision of the year in search and seizure law was State v. Brunetti,(fn4) a murder case raising the question whether the police may search a home when one occupant gives his consent to do so in the presence of another occupant who withholds her consent.(fn5) By a split (3-2) decision, the

(fn3)See, e.g., In re Application for Writ of Habeas Corpus by Dan Ross and Office of the Chief Public Defender [as next friend on behalf of Michael B. Ross], 272 Conn. 653,655-61 (2005); Dec. 27,2004 habeas petitions by defendant's father and public defender office challenging Ross's competence to waive further post-conviction review; heard by trial court on Jan. 3, 2005 and dismissed; appeals taken Jan. 18, 2005, appeals argued Jan. 21, 2005 and decided by Jan. 25, 2005 affirmance on grounds that res judicata barred relitigation of challenge to Ross's competence to make decision, thus undermining "next friend" standing to proceed in lieu of Ross under Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990)), aff'd, 272 Conn. 676; Missionary Society of Connecticut v. Board of Pardons & Paroles, 272 Conn. 647 (2005) (Jan. 4,2005 petition for commutation of Ross's death sentences rejected by Board of Pardons and Paroles, appeal to Superior Court dismissed for lack of standing; Chief Justice granted expedited appeal under CONN. GEN. STAT. Section 52-265a; appeal argued Jan. 22, 2005 and dismissal affirmed in decision issued Jan. 24, 2005); Dan Ross v. M. Jodi Rell, 392 F. Supp. 224 (Jan. 10, 2005) (father's motion to proceed as next friend in Section 1983 challenge to lethal injection method of execution denied); Ross v. Lantz, 2005 US. Dist. LEXIS 908 (Jan. 25, 2005) (Conn. Dist. Court) (granted Chief Public Defender Office next friend status to pursue federal writ of habeas corpus, ordered hearing on Ross's competence, and ordered stay of Ross's execution set for Jan. 26, 2005); appeal and motion to vacate stay denied, 396. F.3d 512 (Jan. 25, 2005); application to vacate stay of execution granted, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1091 (Jan. 27, 2005) (by 5-4 vote); State v. Ross, 273 Conn. 684 (May 9, 2005) (reviewing legal events beginning in late January, 2005, involving possible conflict of interest on part of attorney assisting Ross in seeking execution and culminating in state trial court's appointment of special counsel to investigate and present evidence of Ross's incompetence).

4 276 Conn. 40 (2005)

5 The disharmonious owners were the father and mother of the murder suspect, Nicholas Brunetti, who lived with them. Both parents were in the waiting room at

court held that the trial court erred in denying the defendant's motion to suppress because the police may not act on the consent to search a home if two co-occupants are at odds, with one consenting and the other refusing consent.(fn6) At this writing, the case is undergoing reconsideration en banc, with Justice Borden and Judge Lavery joining the original panel of five made up of Chief Justice Sullivan and Justices Vertefeuille, Katz, Palmer, and Zarella. Meanwhile, the United States Supreme Court has heard and decided a state case on its docket, Georgia v. Randolph,(fn7) which raised the federal constitutional issue reached by only one of the five justices who decided Brunetti the first time around. The court held that one cotenant's consent to search a home does not trump the refusal by a second present co-tenant who refuses consent.(fn8) The United States Supreme Court was also split, with a five justice majority opinion and three dissenting opinions.(fn9)

While the Connecticut Supreme Court reconsiders its Brunetti decision en banc and in light of Georgia v. Randolph, its original decision remains important and interesting on a number of grounds. The three justices voting to reverse Brunetti's conviction were split in their reasoning. Justice Vertefeuille wrote the plurality opinion in which Chief Justice

5 (cont.) the West Haven police department when the father signed a consent to search form and the mother refused to do so. The son was in the interrogation room at the police department, though not formally under arrest at the time that his father gave consent. On the authority of the father's consents, the police searched the Brunetti home and found in the laundry area recently washed items of clothing, including a towel and sweat pants with "'bleach-like stains'" and two tank tops, one with "reddish brown blood-like stains." The police then informed the suspect that they had discovered and seized the items, at which point the suspect requested a Bible, was given Miranda warnings, and made statements inculpating himself in the murder. Thereafter, he was formally arrested. Id. at 43-45.

6 Id. at 41-65 (Vertefeuille, J., plurality opinion); 66-86 (Katz, J., concurring); 86-143 (Palmer, J., dissenting, joined by Zarella, J.).

7 126 S. Ct. 1515, 164 L. Ed.2d 208 (March 26, 2006).

8 The majority wrote: "Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all." 126 S. Ct. at 1523.

9 Justice Souter wrote the majority opinion, in which Justices Stevens, Kennedy, Ginsburg, and Breyer joined. Justices Stevens and Breyer also filed concurring opinions. Chief Justice Roberts and Justices Scalia and Thomas each wrote dissenting opinions. Justice Alito did not participate in the decision.

Sullivan joined, finding the search of the defendant's home unconstitutional based on a new state constitutional rule that would require the consent of bothco-occupants, if both are present, before the police may conduct search their home. Concurring, Justice Katz recognized the same rule but on federal, not state, constitutional grounds. Applying the Golding test(fn10) for reviewing unpreserved claims of constitutional error, the Court found the record sufficient to support review of the defendant's appellate claim and reversal of his conviction...

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