Developments in Connecticut Criminal Law: 2007
| Publication year | 2021 |
| Pages | 173 |
82 CBJ 173. DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 2007
Volume 82, No. 2, Pg. 173
June 2008
This article reviews some issues of procedural and substantive criminal law that arose in appellate cases decided by the Connecticut Supreme and Appellate Courts in 2007. In 2007 the Connecticut Supreme Court decided a total of 47 criminal appeals, the vast majority of which were direct appeals from judgment after criminal trials, with just a few cases involving collateral review and other post-judgment issues such as habeas corpus petitions, motions to correct an illegal sentence, and new trial petitions. The Supreme Court issued 36 full opinions and 11 per curiam opinions. The court sat en banc seven times.(fn1) One of the en banc cases, State v. Lawrence,(fn2) generated the year's sole dissent and also one of the year's two concurring opinions.(fn3) The Supreme Court docket comprised 12 cases brought directly to the court, 10 cases transferred from the Appellate Court(fn4) and 25 cases in which the court certified issues for appeal following decision by the Appellate Court. In the certified appeals, the Supreme Court affirmed the Appellate Court decisions 19 times and reversed six times.
In 2007 the Appellate Court decided 129 direct appeals in criminal cases and another 53 appeals of claims made for collateral relief stemming from criminal cases (primarily petitions for writs of habeas corpus). Altogether there were 13 dissenting opinions and seven concurring (or partially concurring) opinions. The Appellate Court sat en banc only once, in State v. Flanagan.(fn5) In Flanagan, the court granted the defendant's motion for reconsideration and reargument following a first, split decision by a regular three-judge panel affirming the judgment.(fn6) In its en banc review, the court again affirmed, this time in a decision, split 5-4, rejecting the defendant's claim that the trial court had violated his constitutional right of self-representation.(fn7) Chief Judge Flynn and Judge Rogers (joined by Judges DiPentima and McLaughlin) each dissented, with Flynn's opinion commencing with the most catching topic sentence of the season: "We are heirs of Connecticut colonists who distrusted lawyers because so many from the profession were aligned with King George."(fn8) Not surprisingly, the Supreme Court has granted certification to review the split decision of the en banc court in Flanagan.(fn9)
This article attends to some of the more important appellate cases decided in 2007 and also calls attention to cases involving issues of continuing currency in criminal practice. A number of the "cutting edge" criminal law issues from past years remain so. For example, the Connecticut Supreme Court has yet to settle the issue left open in State v. Sawyer,(fn10) i.e., whether the adoption of the Connecticut Code of Evidence in 2000 removed or left intact the court's common- law authority to change rules of evidence.(fn11) Connecticut courts continue to grapple with novel applications of confrontation clause doctrine based on the United States Supreme Court's paradigm-shifting decision in Crawford v. Washington(fn12) in 2004.(fn13) The state Supreme Court in State v. Bell(fn14) applied the paradigmatic principles set forth in Apprendi v. New Jersey(fn15) and held that the defendant had a Sixth Amendment right to have a jury decide the statutory facts which mandate an enhanced sentence for a persistent serious felony offender.(fn16)
A general review of criminal appellate practice in 2007 would be incomplete without mention of personnel changes on the Supreme Court. Appellate Court Judge Chase Rogers was sworn in as Chief Justice of the Supreme Court, Justice David Borden reached the age of mandatory retirement from the Supreme Court, and Appellate Court Judge Barry Schaller was appointed to the Supreme Court. Justice Borden's retirement bears special recognition. Justice Borden served as a justice on the Supreme Court from 1990 until 2007 and prior to that served as an original member of the Appellate Court from the time it was constituted as a constitutional court in 1983. In his last year on the Supreme Court, Justice Borden continued his career-long drive to clarify legal doctrine, often doctrine articulated with less than ideal precision in previous cases.(fn17) Borden's intellectually keen presence has been a "given" on the appellate scene in Connecticut for so long that the vast majority of criminal lawyers have no experience that pre-dates his elevation from the Superior Court and some of us are surprised to find no textual support for our assumption that the Constitution requires his presence on a reviewing court.(fn18) Thankfully, like other retired justices of the Supreme Court, Borden now sits on panels of the Appellate Court deciding cases and clarifying legal doctrine where appropriate.(fn19 )
Reviewing courts in 2007 decided confessions cases involving due process, Miranda, and right to counsel constraints on police interrogation of criminal suspects and defendants. In the leading due process case, State v. Lawrence,(fn20) the Supreme Court rejected the defendant's argument that his confession to ownership of cocaine seized by the police during a search of his home was coerced from him by a police threat to have the Department of Children and Families remove his children and grandchildren from his home unless he confessed.(fn21) Justice Borden wrote the opinion of the court, rejecting the defendant's argument that his confession was inadmissible under the federal constitution and affirming the trial court's conclusion that the state had proven by a preponderance of evidence that the defendant confessed voluntarily despite the defendant's insistence in his testimony at the suppression hearing that the police had threatened him.(fn22) On appeal the defendant's second constitutional argument was that the court should overrule its decade- old holding, in State v. James,(fn23) in which the court had held that the state constitutional standard for establishing the voluntariness of confessions is the same as the federal preponderance standard.(fn24) The court rejected the defendant's invitation to overrule James and to adopt a state constitutional rule that would have required the government to prove voluntariness beyond a reasonable doubt.(fn25)
Justice Katz dissented in Lawrence on the state constitutional issue,(fn26) declaring that the stare decisis strength of James could not withstand the "`lessons of experience'"(fn27) to be derived from numerous instances of exoneration of persons by DNA evidence and by other means, many of which were attributable to false confessions and police coercion.(fn28) Katz pointed out that the underlying concern in modern federal constitutional voluntariness doctrine is to determine whether a confession was coerced, but that the singular concern with coercion represents a narrowing of purpose from previous federal doctrine which also represented "the notion that the purpose of a voluntariness hearing was to enhance the reliability of jury verdicts."(fn29) In a brief concurrence in which he joined the majority opinion, Justice Palmer declared strong reasons why the legislature would be well- advised to change the law governing police interrogation in Connecticut, especially when a suspect is young or suffers from a mental disability:
I write separately wrote only to underscore that, to the extent that false confessions have led to a number of wrongful convictions across the United States, our legislature is free to enact legislation requiring police to videotape confessions whenever it is reasonably feasible to do so. Although valid reasons may exist not to impose such a requirement on the police, there can be little doubt that recording confessions would dramatically reduce, if not eliminate, any possible likelihood of an erroneous conviction predicated on an involuntary confession. Indeed, videotaping confessions would greatly aid both the trial court and the jury in evaluating the voluntariness and, ultimately, the reliability, of those confessions.(fn30)
Justice Palmer agreed with Justice Katz that "the risk of a false confession is appreciably greater in cases of juveniles and persons with mental disabilities."(fn31) Because such persons are "especially vulnerable to police overreaching" and may be "more likely than others to confess falsely" even without police coercion, Palmer declared that "videotaping confessions by such persons would serve an especially salutary purpose."(fn32)
In State v. Britton,(fn33) an en banc Supreme Court upheld the trial court's determination that the defendant's statements to the police in the absence of Miranda warnings were admissible at trial because he was not in custody when he remained with local and state police at the New London police department for questioning after he had voluntarily gone there at the request of police so that they could take his palm prints. The Supreme Court noted that the defendant contested only the legal conclusion of the trial court, not the facts found by the trial court at the suppression hearing, including that the police "repeatedly" told the defendant ("suspect") that he was not under arrest and was free to leave.(fn34) In State v. Stenner,(fn35) the Supreme Court concluded that the trial court properly admitted into evidence the defendant's inculpatory statement made in an Arizona jail in the absence of counsel during a visit from a Connecticut detective and an inspector from the state's attorney's office after they informed the defendant that the state had obtained a warrant for his arrest for murder and showed him a copy of the warrant.(fn36) On appeal the...
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