A Survey of Criminal Law Opinions

Publication year2021
91 CBJ 115
Connecticut Bar Journal
June, 2018

Hon. Tejas Bhatt [*]

Criminal law cases make up a significant portion of the docket of our Supreme and Appellate Courts. This article surveys the criminal law opinions issued by those courts to answer the question: what do criminal law practitioners need to know about the opinions issued by the Connecticut Supreme and Appellate courts during the period of May 2016 to February 2018. In writing this, nearly every Connecticut Supreme Court opinion has been summarized. However, the volume of cases decided by the Connecticut Appellate Court makes it a near impossible task to review and summarize each one. In summarizing cases, care has been taken to not mention issues and analyses that are unremarkable, or merely axiomatic. Rather, this review focuses only on those opinions that should be of particular note to the criminal bar.

I. Juveniles And the Criminal Law

Our Supreme Court continued to deal with the treatment of juveniles in our criminal justice system. In the companion cases of state v. Delgado[1] and state v. Boyd,[2] the court was asked to decide whether juveniles who had been sentenced prior to the United States Supreme Court’s decision in miller v. alabama[3] and our court’s decisions in state v. Riley[4] and casiano v. commissioner[5] were required to be re-sentenced. Our Supreme Court interpreted miller as impacting two aspects of sentencing: “(1) that a lesser sentence than life without parole must be available for a juvenile offender; and (2) that the sentencer must consider age related evidence as mitigation when deciding whether to irrevocably sentence juvenile offenders to a lifetime in prison.”[6] Both delgado and Boyd argued that their sentences violated the Eighth Amendment and that they were imposed in an illegal manner because the second aspect of miller was never given effect in their cases. Thus, for their sentences to be constitutional, they must receive new sentencing hearings where the sentencer must give “mitigating weight to the defendant's youth and its hallmark features.”[7]

The state disagreed, arguing that because the legislature had granted delgado and Boyd parole eligibility,[8] their sentences did not violate the Eighth Amendment. As to the mitigating weight to youth claim, the state argued that the United States Supreme Court’s later decision in montgomery v. louisiana[9] makes a re-sentencing unnecessary if the juvenile defendants are provided with another remedy such as a parole hearing. Our court agreed with the state, noting that our legislature had enacted legislation[10] providing parole hearings for those who previously were sentenced to life without parole. It explained that “[t]he eighth amendment, as interpreted by miller, does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence.”[11] According to our court, “under miller, a sentencing court's obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole.”[12] Thus, the Eighth Amendment was not violated when delgado and Boyd were not re-sentenced, because they are eligible for parole. Our Supreme Court, however, subsequently granted certification in another case, State v. Williams-Bey,[13] to determine whether our state constitution requires a re-sentencing for juvenile offenders despite their parole eligibility.

In state v. Nathaniel s.,[14] our Supreme Court was asked to decide whether Public Act 15-183 applied retroactively. Public Act 15-183 amended the juvenile transfer statute[15] in two ways: 1) it raised the age of adult court jurisdiction to fifteen from fourteen; and 2) it moved some Class B felonies from the mandatory transfer column to the discretionary transfer column. Thus, the court was presented with the reserved question: “whether that amendment applies retroactively, so that the case of a child who has been charged with committing a class A or class B felony prior to the enactment of P.A. 15–183, and whose case already has been transferred to the regular criminal docket, should now have his case transferred back to the juvenile docket.”[16]

The court first concluded that the Public Act was procedural in nature and that the changes to the statute are presumptively to be applied retroactively. Substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress. The court noted that the amended statute dictates only a procedure – the automatic transfer – for adjudicating cases of certain children accused of committing serious crimes. The court has previously characterized the juvenile transfer statute as procedural in nature.[17] The court then noted that there was nothing in the language of the Public Act that would overcome this presumption of retroactivity. Based on this, the court concluded that the amended statute applies retroactively.[18]

In Haughey v. commissioner,[19] the petitioner alleged that he was entitled to an individualized, proportionate sentencing hearing pursuant to miller v. alabama[20] despite his chronological age of 25. He argued that although miller and its progeny apply only to individuals under 18, his youthful characteristics were akin to a juvenile offender. Our Appellate Court disagreed, concluding instead that it is the chronological age that controls in determining whether an individualized sentencing pursuant to miller is required. Since the defendant was over 18, he was not entitled to one.[21]

In State v. Rivera,[22] the defendant (who was 17 years old at the time of the crime) contended that his 25-year mandatory minimum sentence violated the Connecticut constitution’s ban on cruel and unusual punishment.[23] Our Appellate Court conducted a Geisler[24] analysis and concluded that the imposition of a 25-year mandatory minimum sentence on a juvenile does not violate the Connecticut constitution, particularly given the defendant’s eligibility for parole under Public Act 15-84.

II. Appellate Review of CLAIMS/JURISDICTION of Courts

Determining the requirements for obtaining appellate review of unpreserved claims is a constant challenge for our Supreme Court. This year was no exception as the court was asked to overrule its 2011 decision of state v. Kitchens,[25] in which the court deemed a claim of instructional error implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them. In the companion cases of state v. Bellamy[26] and state v. Herring,[27] the defendants argued that “unpreserved claims of instructional error that satisfy the first two prongs of Golding[28] should be considered by reviewing courts unless the error was induced or the claim was expressly waived by the challenging party.”[29] The defendants further argued that “Kitchens created an irrebuttable and incorrect presumption”[30] that defense counsel was aware of and thereafter made a conscious tactical decision to ignore constitutional errors in a jury charge. Rather, defense counsel’s failure to object to constitutional errors in jury instructions should be viewed through the forfeiture lens; and putting the onus on defense counsel to ensure that jury instructions are constitutionally correct improperly shifts that responsibility away from the trial judge.[31] The state countered that Kitchens is an accurate statement of the law in Connecticut and should be upheld as good policy because “it gives parties an incentive to participate in the formulation of the jury instructions in a timely manner when errors can be corrected, thus promoting fair trials.”[32]

Our Supreme Court agreed with the state, retaining the Kitchens rule because it “improves the process of constructing fair and balanced jury instructions [and] it provides incentives to the parties and the court to ensure that the instructions are accurate.”[33] In doing so, it reiterated the foundational requirements for a finding of implied waiver: “waiver may be found only after the trial court provides counsel with a written copy of the proposed instructions, allows counsel a meaningful opportunity to review them and solicits counsel's comments regarding proposed changes or modifications … [i]f the record contains evidence that any of these steps has been omitted, implied waiver may not be found.”[34]

Of particular importance to practitioners, the court cautioned that “competent counsel do not defer consideration of jury instructions until the last minute, thereby increasing the possibility of committing inadvertent mistakes.”[35] Rather, “counsel necessarily must consider what the state will be required to prove and how the jury should be instructed well before commencement of the trial proceedings in order to prepare a defense.”[36] Because our rules provide for “multiple opportunities to participate in the formulation of proper jury instructions,”[37] the majority held that Kitchens was not unfair or inappropriate.

Three justices concurred in the judgment but voted to overrule Kitchens. Chief Justice Rogers wrote a concurring opinion stating her position that the inference that Kitchens was based on – “that counsel was aware of the defect later raised on appeal and decided not to assert it at trial, and, therefore, that a waiver could be found without evidence that counsel actually knew of the defect”[38] – was unreasonably broad and more accurately described the doctrine of forfeiture as opposed to waiver. In her opinion, “the benefits of this approach do not outweigh the costs, either to defendants with meritorious claims of harmful instructional error, to the court system...

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