A Survey of Criminal Law Opinions

Publication year2021
Claim No. 93 CBJ 99
Connecticut Bar Journal
June 18, 2020

By 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 March 2018 to March 2019? 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 continues to deal with the treatment of juveniles in our criminal justice system. In State v. Castillo,[1]our Supreme Court was asked to exercise its supervisory authority to adopt a per se rule that whenever police give a juvenile Miranda[2] warnings, those warnings must include notice that any statement may be used against the juvenile in adult court if the case is transferred there.[3] The defendant noted that the juvenile waiver form merely states that the statements could be used against him "in a court of law" and does not expressly state that the waiver would apply in both juvenile and adult court.[4] Thus, he claimed, the waiver was insufficient. Noting that its "supervisory authority is an extraordinary remedy that should be used sparingly"[5] the court declined to adopt the per se rule because it had already decided in this case that the defendant was not in custody and the police were not constitutionally required to provide him with the warnings. The defendant did not offer any evidence of a "pervasive and significant problem that would justify the invocation of [the] supervisory authority."[6] The court acknowledged that it was an "important question of public policy," but because the facts of this case did not give rise to the issue, it was improper to invoke its supervisory authority.

Justice D'Auria dissented from the majority decision and would have remanded the case to our Appellate Court to consider the defendant's state constitutional claim that police were required to inform him that any statement could be used against him in adult court as well.[7] Without opining on the merits of the defendant's argument, Justice D'Auria observed that the defendant's claim was predicated on state law, General Statutes Section 46b-137,[8] which specifically states that statements made by juveniles to police officers would be admissible in adult court even if they were inadmissible in juvenile court. The defendant argued that the state constitution requires police officers to incorporate this statutory exception in their juvenile waiver warnings. In other words, the defendant claimed that "the warning he did receive—which was compelled by state law—was incomplete or misleading under the state constitution."[9] Thus, having concluded that the defendant raised a claim for which our Appellate Court could grant relief, Justice D'Auria would have remanded the case to that court.

II. Appellate Review of Claims/Jurisdiction of Courts

Determining the parameters of the jurisdiction of trial and appellate courts is a constant challenge for our reviewing courts. This year, our Supreme Court was asked to decide exactly when a habeas corpus court might dismiss an untimely filed petition for lack of good cause. In Kelsey v. Commissioner,[10] the respondent Commissioner of Correction asked the habeas court to issue an order to show cause pursuant to General Statutes Section 52-470. The habeas court relied on General Statutes Section 52-470(b)(1)[11] and held that it could not act on the request until the pleadings had been closed. The respondent filed an interlocutory appeal pursuant to General Statutes Section 52-265a[


] and Chief Justice Rogers granted that request. On appeal both the petitioner and respondent agreed that General Statutes Section 52-470(e)[13] was the correct subsection. The respondent argued that the habeas court must act immediately upon the filing of the order to show cause, whereas the petitioner argued that the statute did not limit the discretion of the habeas court as to when it may act on a motion for an order to show cause

In deciding this question, our Supreme Court undertook an examination of the statute, noting that it was amended recently in 2012 as part of a comprehensive habeas reform with the intent to "supplement that statute's efficacy in averting frivolous habeas petitions and appeals."[14] Turning to subsection (b), the court noted that it authorizes the habeas court "to render a summary dismissal without a trial of all or part of a habeas petition" if the court determines, either on motion by a party or sua sponte, that there is no good cause for trial. Good cause for trial requires the petitioner to allege the existence of specific facts which, if true, would entitle the petitioner to relief. The language of this subsection specifically requires that this "good cause for trial" determination be made only after the certificate of closed pleadings has been filed. This, the court held, is consistent with the inquiry the court has to conduct. In determining whether there is good cause for trial, the habeas court "must wade" into the merits of the petition. Since this inquiry is a substantive one, it would be premature for the court to decide it before the pleadings are closed.

Subsection (c) and (d) of the statute, however, are concerned with delays in the filing of the petition, as opposed to good cause for trial and subsection (e) creates a rebuttable presumption that if the time limits contained in subsections (c) and (d) are not met, there is no good cause to excuse the delay. The court's inquiry under these subsections is triggered only upon a request by the respondent. If the respondent makes the request, the habeas court "shall" issue an order to show cause, but nothing in the language of subsection (e) "expressly clarifies or limits the timing of that order."[15] Had the legislature intended to incorporate a time constraint, it could have done so.

The court further noted that while subsection (b) lays out the manner in which a hearing may be conducted and what the habeas court may consider in making its determination, subsection (e) contains no such detail about the procedure. Subsection (e) merely provides that the petitioner "shall have a meaningful opportunity to investigate the basis for the delay and respond to the order." Nothing in that subsection specifically addresses whether the petitioner may present argument or evidence, or file exhibits, or whether and under what circumstances the court is required to hold a hearing. The phrase 'meaningful opportunity' typically refers to an opportunity that comports with due process, so the court concluded that the lack of specific statutory contours suggests that the legislature intended for habeas courts to exercise their discretion.[16] While the majority of cases will not require an inquiry similar to that pursuant to subsection (b), the court envisioned that in some cases the basis for the delay may be intertwined with the merits of the petition. In those cases, habeas courts would be required to engage in a substantive inquiry.

Thus, the court held that the habeas court is not required to wait until the close of all pleadings to issue an order to show cause why the petition should be permitted to proceed when there is a rebuttable presumption of delay.[17]

In deciding the defendant's claim of instructional error, see Section XVIII below, our Supreme Court in State v. Newton[18] first had to decide whether the claim was waived pursuant to State v. Kitchens.[19] Defense counsel had requested a specific intent instruction, but the trial court agreed with the state that the applicable mens rea was general intent. The trial court did indicate that it would give further thought to the defendant's position, to which defense counsel replied, "all right." On appeal, the state claimed that the defendant waived the claim because he did not pursue his request any further by filing a subsequent request to charge with his proposed language or by reiterating his earlier request. The state also pointed out that defense counsel took no exception the jury charge after it had been given. Rejecting the state's position, our Supreme Court found no implied waiver because "the purpose of the Kitchens rule is simply to ensure that defense counsel brings 'the specific instructional error to the trial court's attention' [...] Defense counsel in the present case did precisely that."[20] The court reiterated that nothing in Kitchens requires defense counsel to "doggedly and repeatedly" pursue an instructional claim that has been rejected by the trial court.

In State v. Evans,[21] the defendant filed a motion to correct alleging that his sentence of five years' incarceration for sale of narcotics in violation of General Statutes Section 21a-278 (b) was imposed in violation of the constitution because United States Supreme Court case law required facts that enhanced a sentence to be found by a jury. See Section VII below. The state argued as a threshold matter that his Al-ford[22] plea operated as a waiver of his right to challenge the legality of the sentence. The court assumed, without deciding, that a "guilty plea could affect the court's subject matter jurisdiction over a subsequent motion to correct premised on the failure to make a necessary finding,"[23] but nevertheless rejected the state's contention because there was no such plea in...

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