Developments in Connecticut Criminal Law: 2006

Pages161
Publication year2021
Connecticut Bar Journal
Volume 81.

81 CBJ 161. DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 2006


CONNECTICUT BAR JOURNAL
Volume 81, No. 2
June 2007
DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 2006

BY TIMOTHY H. EVERETT*

This article reviews some of the issues in criminal cases decided by the Connecticut Supreme Court and the Connecticut Appellate Court in 2006.(fn1) While no case garnered the popular attention given the Michael Ross case in 2005, the courts laid important groundwork in cases dealing with the definition of criminal law and its retroactive application, the reviewability of unpreserved claims of constitutional error, the impact of the code of evidence on the judiciary's common-law authority, the standard of harmfulness for evidentiary review, and the relation between hearsay and the confrontation clause. Five appellate cases particularly stand out: State v. Skakel, State v. Brunetti, State v. Sawyer,State v. Scruggs, and State v. Kirby. Each is discussed in its own section, along with mention of other cases that presented similar issues. The rest of the article reviews some of the other interesting criminal cases decided in 2006.

I. TURNING BACK THE CLOCK
STATE V. SKAKEL

In State v. Skakel,(fn2) the Supreme Court affirmed the state's successful murder prosecution of defendant, a 40-year-old adult, for a homicide committed in 1975 when he was a 15- year-old juvenile. In so doing the court grappled with thorny issues concerning the applicability of the juvenile and criminal law of 1975 to a prosecution begun in 2000. The defendant raised seven claims of error on appeal, chief among which were: that his case had been improperly transferred from the juvenile court docket to the adult criminal docket; that the prosecution was brought outside the statute of limi




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tations; that the prosecution engaged in misconduct in pretrial discovery and at final argument; and that the trial court erred in various constitutional and evidentiary rulings on the admissibility of evidence.(fn3)

The first major issue addressed by the Skakel court was application of the juvenile transfer law of 1975 to a juvenilebecome-an-adult in the 25 years that passed before the state commenced its prosecution. How does the law treat an accused who has outgrown the protected status(fn4) that he might have enjoyed if arrested when still a 15-year-old juvenile? The court found that the transfer of the case from juvenile court to the adult criminal docket was proper despite noncompliance with certain mandates in General Statutes Sections 17-60a and 17-66 (rev. 1975). The probation investigation prior to transfer omitted the statutorily required "examination of the `parentage and surroundings of the child, his age, habits, and history, and. . . also an inquiry into the home conditions, habits and character of his parents or guardians.'"(fn5) The court found such statutory noncompliance to be harmless, given that the statute's purpose, to consider whether there existed alternative state facilities for the juvenile "in preference to the facilities otherwise available for the treatment and punishment of adult offenders," was not accomplishable for a 40-year-old defendant, long out of childhood.(fn6) The court also rejected the defendant's claim that it was error to apply transfer regulations current in 2000 instead of 1975 state regulations that had permitted alternative placements for persons over 18.(fn7)




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The second major holding in Skakel was that the prosecution of the defendant was not barred by the five-year statute of limitations, Gen. Stat. §54-193 (rev. 1975), despite on-point precedent from 1983, State v. Paradise,(fn8) in which the court had held that the five-year statute of limitations applied to murders committed in 1975 and that the legislature's repeal of the statute of limitations for murder in 1976 applied only prospectively.(fn9) In Skakel the state argued that the court should overrule Paradise and repudiate its underlying premise that a change in a statute of limitation is presumed not to apply retroactively. The Skakel court agreed with the state:

Upon reconsideration, we are persuaded that Paradise was wrongly decided. In particular, we conclude that we were misguided in establishing a presumption that, in the absence of a contrary indication of legislative intent, an amendment to a criminal statute of limitations is not to be applied retroactively. . . . [W]e are convinced that, with respect to those offenses for which the preamendment limitation period has not expired, it is far more likely that the legislature intended for the amended limitation period to apply to those offenses. In view of the fact that the five year limitation period of the pre-1976 amendment version of § 54-193 had not expired with respect to the October, 1975 murder of the victim when the 1976 amendment to that statutory provision became effective, we conclude that P.A. 76-35, § 1, is the operative statute of limitations for purposes of this case.(fn10)

The precedential value of the statute of limitations holding in Skakel might, on first consideration, appear limited since few persons in the future are apt to be prosecuted for a murder committed prior to the 1976 amendment of the statute of limitations that is now understood to have retroactive, not just prospective, application. But the Skakel court announced an important, broader rule of statutory interpretation: changes in




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statutes of limitations laws are to be understood as "presumptively retroactive"(fn11) as long as the limitations period has not expired before the statutory change.(fn12) The court noted that "[i]n Paradise, we did not explain our conclusion that §54-193 is penal in nature, and therefore that that provision must be strictly construed."(fn13) The Skakel court held that the rule of strict construction of criminal statutes does not apply to statutes of limitation because a "statutory limitation period has nothing to do with the scope or reach of the substantive offense"(fn14) and "because criminal statutes of limitation do not define criminal conduct, establish the punishment to be imposed or otherwise burden defendants, such statutes are not truly penal at all."(fn15)

The Skakel court stated that its decision resolved "a tension between our mode of analysis in Paradise and the approach to the construction of statutes in the criminal realm that we have employed more recently" under which "provisions that, although a part of our system of criminal laws, nevertheless carry a presumption of retroactivity."(fn16) In a concurring opinion, Justice Katz agreed with the majority holding that Paradise should be reversed, but on alternate grounds.(fn17) In her view, Paradise was miscast as a retroactivity case in the first place.(fn18) Reviewing the history of mur




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der under the common law and the Penal Code, Katz found an unexamined premise in Paradise that was false: "the crime of murder was not subject to the statute of limitations in effect in 1975, and, indeed, there never has been a limitations period on the prosecution of murder."(fn19) II.

UNDERDEVELOPED RECORD DOES NOT SUPPORT GOLDING
REVIEW: STATE V.BRUNETTI(II)

In State v. Brunetti ("Brunetti (II)"(fn20)), an en banc panel of the Supreme Court issued a 4-3 decision affirming the defendant's conviction of murder. Brunetti (II) superseded the court's 3-2 decision issued in 2005 that had reversed the defendant's murder conviction ("Brunetti (I)").(fn21) The changed outcome reflects the Brunetti (II) majority's conclusion that the search and seizure argument upon which the defendant had prevailed in Brunetti (I) could not be reached on the merits because the trial record was not adequate to support review under the doctrine of State v. Golding,(fn22) which established the test that governs appellate review of unpreserved constitutional claims.(fn23)

In Brunetti (I) a plurality of the court had held that a "consent search" of the defendant's home which he shared with his parents had violated the state constitution because the police obtained consent from the defendant's father but were denied consent by the defendant's mother.(fn24) Brunetti (I) was




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especially interesting because Justice Katz concurred in the result on federal constitutional grounds that presaged the United States Supreme Court's subsequent decision in Georgia v. Randolph.(fn25) In Brunetti (I), Justice Palmer had strongly dissented,(fn26) arguing that the record was inadequate to support review under State v. Golding.

In Brunetti (II), Justice Palmer's analysis prevailed and the court held that the record for review was inadequate to sustain review under Golding. The court described the tension between the need to raise a claim at trial so that it may be addressed then and the need to avail defendants of a remedy on appeal for constitutional error that is evident in the record.(fn27) The Brunetti (II) court affirmed the vitality of Golding review, but emphasized that an adequate record is the sine qua non of such appellate review.(fn28)

The majority in Brunetti (II) held that it was inappropriate to use the court's appellate authority to review the defendant's gloss on consent search doctrine for two reasons: (1) the record did not clearly establish whether the defendant's mother had in fact disagreed with her husband's decision to consent to a police search of their home; and (2) the defendant in the trial court had not claimed that a husband's consent to search was legally deficient in the absence of express concurrence from his wife when present. The court found




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that the defendant's mother's refusal to sign a consent to search form did not necessarily mean that she objected to the police search. The undeveloped trial record made it impossible on appeal to disambiguate the...

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