83 CBJ 163. DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 2008.

• Author: By Timothy H. Everett(fn*)

Connecticut Bar Journal

Volume 83.

83 CBJ 163.

DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 2008

Connecticut Bar JournalVolume 83, No. 2, Pg. 163JUNE 2009DEVELOPMENTS IN CONNECTICUT CRIMINAL LAW: 2008By Timothy H. Everett(fn*)This article surveys criminal cases decided by Connecticut's higher courts in 2008, without hope of completeness but with the aim to identify cases that are "must reads" and "must re-reads" for members of the Bar. The Connecticut Supreme Court decided several especially significant cases in 2008. In a long, nonunanimous decision, State v. DeJesus,(fn1) the Supreme Court grappled with the relation between the new Code of Evidence and the Supreme Court's inherent powers under the common law and the state constitution. After concluding that adoption of the Code of Evidence had not altered its own authority to make common- law rules of evidence, the DeJesus Court announced a new "propensity" exception to the law governing use of uncharged misconduct evidence; the Court has already begun to map out the parameters of this propensity exception.(fn2) In State v. Salamon,(fn3) the Court corrected its past construction of the abduction element in kidnapping, distinguishing it from unlawful restraint; in so doing the Court overruled long-standing precedent that the Court had affirmed as recently as 2002.

By design the Appellate Court decides most of the cases on its large docket by careful application of established legal paradigms, not by reconsidering precedent and fashioning novel law.(fn4) The Appellate Court plays a critical role in the development of Connecticut criminal law and procedure, both through those relatively few of its decisions that the Supreme Court selects for further review and, as importantly, by providing "the final word" in the vast majority of criminal appeals taken from the Superior Court. Its middle tier vantage point and high volume docket place the Appellate Court in a special role, with comparatively direct and usually final oversight of actual criminal practice in the trial courthouses of the State.(fn5) This review cannot cover the extensive array of cases decided by the Appellate Court last year, so it includes a somewhat idiosyncratic sampling of some of the more interesting ones.

1. Appellate Box Scores and Recaps

   In 2008 the Connecticut Supreme Court decided fifty-two cases involving criminal law. Forty-three were direct appeals from criminal judgments in the Superior Court, seven were appeals of Superior Court decisions on habeas corpus petitions, one was a Writ of Error from conviction of summary contempt, and one was an interlocutory appeal authorized by the Chief Justice in the interests of justice pursuant to General Statutes Section 52-265a. The Supreme Court fashioned its docket by transferring twenty-one cases from the Appellate Court this year and granting certification to review issues previously decided in the Appellate Court in another nineteen cases. Of the cases first decided by the Appellate Court, the Supreme Court affirmed nine times and reversed or modified the Appellate Court's decision ten times. The Supreme Court sat en banc in three criminal cases, but fell short of unanimity in deciding each.(fn6)

   The Supreme Court did not review any capital cases resulting in the death penalty(fn7) in 2008, though it did review a capital case in which a young defendant was given a life sentence without the possibility of parole.(fn8) The Court decided a broad range of issues in the administration of criminal justice and constitutional rights, including protection of a complainant's mental health records,(fn9) calculation of the time that a defendant may be kept in placements intended to restore his com-petency,(fn10) the need to instruct a jury on the distinction between "true threats" and constitutionally protected speech,(fn11) when a continuance at the state's request converts to a nolle prosequi,(fn12) and various suppression, consolidation and severance, evidentiary, and trial process issues.

   If the Supreme Court docket year included a sizeable squadron of criminal cases, the Appellate Court docket comprised a veritable flotilla of criminal cases demanding decision. By written opinions (not counting memorandum decisions), the Appellate Court decided one hundred sixty-four direct appeals from judgment in criminal cases, sixty-eight appeals in habeas corpus cases, and five other cases presenting criminal law issues via less common procedural actions, such as petitions for a new trial and extraordinary writs.

   As noted before, the Appellate Court's work is most often the last word in a criminal case. The Court decided too many cases to recite. Just a few of the interesting decisions show the range of issues the Court handles. In State v. Re(fn13) the Court held that it was not double jeopardy to convict and sentence a defendant for both manslaughter in the second degree and manslaughter in the second degree with a motor vehicle where the defendant, driving while intoxicated, caused the death of one person.(fn14) In State v. Martin(fn15) the Court held that it was double jeopardy to convict a defendant of both felony possession of marijuana for his possession of 4.4 ounces of marijuana and attempted possession of more than a kilogram of marijuana where the police had removed all but the 4.4 ounces of marijuana from a mail package containing 18 pounds of marijuana before the defendant took possession of what he expected would be the larger amount.(fn16) In State v. Bonner(fn17) the Court held that the trial court properly applied collateral estoppel when it refused to hold an evidentiary hearing on the defendant's motion to suppress narcotics found after his arrest which he claimed was not supported by probable cause, because another court in a murder case had heard and rejected his motion to suppress his statement to police as fruit of an illegal arrest.(fn18) In State v. Ayuso(fn19) the Court held that a trial witness was properly permitted to invoke his Fifth Amendment privilege and that the trial court properly refused to order the state to use its statutory power to accord immunity to certain witnesses. In State v. Callahan(fn20) the Court found that the trial court had not erred in terminating a defendant's accelerated rehabilitation upon finding that she "had not complied with the court's order to send a genuine letter of apology to a person whom the defendant had accused of harassment."(fn21) In State v.Houle(fn22) the Court reversed and ordered a new trial where the jury's conviction of the defendant of third degree arson and first degree criminal mischief depended on "proof of irreconcilably inconsistent states of mind."

   2. What Is The Connecticut Code Of Evidence?

      The philosophically most far-reaching Supreme Court decision of the year was its en banc, split decision in State v. DeJesus,(fn23) affirming the Appellate Court's 2005 decision upholding the application of a special liberal rule of admissi-bility for uncharged misconduct evidence in prosecution of sex offenses.(fn24) However, the Supreme Court affirmed on alternative grounds unavailable to the Appellate Court, which had correctly considered itself bound by decisional law of the Supreme Court prior to DeJesus. Prior decisional law had grounded the liberal rule of admissibility in exceptions to the general rule against character evidence, though it sometimes required strained logic to apply them to uncharged misconduct in sex prosecutions.

      The Connecticut Code of Evidence, adopted in 2000, makes no express reference to the liberal rule,(fn25) but the Code was intended to incorporate, unaltered, the decisional law of evidence in existence at the time of the Code's adoption.(fn26 )Noting that its status as "an intermediate appellate court" barred it from adopting the opinion of a dissenting Supreme Court justice(fn27) or otherwise reconsidering or revising Supreme Court precedent, then Judge (later Justice) Schaller for the Appellate Court in 2005 had rejected DeJesus's arguments asking for a new gloss on, or outright rejection of, the liberal rule of admissibility.(fn28) That constituted the central issue(fn29) the Supreme Court certified for appeal: "Does this court, or any court, have the authority in light of the Connecticut Code of Evidence, to reconsider the rule that the introductions of prior sexual misconduct of the defendant in sexual assault cases, is viewed under a relaxed standard?"(fn30 )The DeJesus Court, sitting en banc, spoke in many voices in answering the certified question in the affirmative.(fn31) The upshot is that adoption of the Code did not diminish the Supreme Court's pre-Code authority to change or modify evidence law and that the Supreme Court itself is not bound by the Code.

      The DeJesus decision resolved that the Code of Evidence does not bind the Supreme Court, but it leaves other issues concerning the legal force of the Code in a state of uneasy irresolution. What, if anything, is "new" in the law of evidence after the Code's adoption by vote of the judges of the Superior Court in 2000? Is it an actual "code" setting forth rules that govern evidence law or is it merely a well-composed snapshot of the common-law principles that govern evidence practice? Does the Code have any effect whatsoever on the common-law process by which Connecticut evidence law has always been applied and developed? Is the Code less binding on trial courts than the...