If there were a job where the only requirement was to give pithy (sometimes catchy, but usually poor) titles to Connecticut Supreme Court decisions, I would take that job and assign the title of this post to State v. Sanseverino (II), issued yesterday. Sanseverino II is a very curious decision of the State Supreme Court.
Because, you see, it is the Mighty Defendant who has the power of soothsaying. The meeky and tiny state cannot be taken advantage of, fooled or otherwise made to lose a conviction, no matter what the circumstances.
Avid and attentive readers of this blog will remember that last year, the CT Supreme Court issued a duo of decisions reversing course on decades of kidnapping law. In State v. Salamon and State v. Sanseverino (I), the CtSC ruled that the law of kidnapping was always that the State must show the use of force greater than that required for the commission of another crime and that they’d gotten it wrong for 30-odd years. For example, a kidnapping conviction couldn’t stand alongside a sex assault conviction where the only “restraint” was that required to commit the sex assault. Mr. Salamon got a new trial and Mr. Sanseverino got an outright acquittal. In doing so, the Court wrote:
Contrary to [the dissent's] assertion that the state ‘could have proffered’ additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt.
Justice Katz (author of Sanseverino I), dissenting in Sanseverino II, explains further:
In Salamon, only after we had examined the evidence at length did we conclude that a retrial was warranted because the evidence actually adduced could be a sufficient basis for a reasonable jury to find a kidnapping upon a proper instruction under the revised rule. State v. Salamon. Although we could have reversed the defendant’s conviction in Salamon on the basis of instructional error— i.e., he did not have the benefit of an instruction under the rule that we set forth in that case—the court relied exclusively on insufficiency of the evidence. Sanseverino simply was an application of the Salamon rubric that yielded a different outcome.
But this joy was rather short lived. A few short weeks later, the Supreme Court started on the path to yesterday’s change of mind. In State v. DeJesus (which you will remember produced a noteworthy post title), the Court quickly disavowed its remedy in Sanseverino (in fact, it expressly reversed itself). So Mr. Sanseverino was enjoying relief, but it was on borrowed time.
In Sanseverino II, the Superme Court did what I expected: it explicitly reversed the remedy of Sanseverino I. Fine, if you want to do that, fine.
But the way it did it and what else it did are noteworthy and frankly, remarkable. Let’s take things one at a time. On reversing the remedy, the Court writes:
Recently, in State v. DeJesus, [...] this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant’s kidnapping conviction and to remand the case for a new trial. As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant’s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, ‘‘the double jeopardy concerns that preclude the [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state’s] failure to muster evidence.’’ (Internal quotation marks omitted.)
Note the subtle change in wording. Salamon goes from being “what the legislature always intended” to an “unforeseen change in the law”. Twist and shout.
Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.
[...], we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.
It is unfair that the court is willing to allow defendants to suffer the consequences of its erroneous interpretation of the kidnapping statute. It is clear from reading Salamon and DeJesus that the court admitted that it got it wrong the first time: when it interpreted the kidnapping statutes to cover restraint wholly incidental to the commission of another offense, it did not properly discern what the legislature intended to criminalize. We now know that the legislature always intended kidnapping to exclude wholly incidental restraint.
Thus, it is patently incorrect to say that Sanseverino is not unfairly prejudiced by the order of a new trial or entering of judment on the LIO because he didn’t raise the claim raised in Salamon (sufficiency) and is just lucky that he can benefit at all from the Salamon decision. This assertion bothers me for a few reasons. First, he was truly unlucky to have committed his crime at at time when our supreme court didn’t feel it necessary to conduct a thorough interpretation of the kidnapping statutes. I also don’t consider it “luck” to have our supreme court acknowledge that the legislature never intended for Sanseverino to be convicted of kidnapping. Are we supposed to feel lucky not to be incarcerated for a crime we did not commit?!
Second, the court goes out of its way to say that because of the dramatic change in the law brought about by Salamon, the state could not have been expected to foresee the change and make strategic decisions re: what evidence to present and which LIOs to include in the jury instructions; yet the court is perfectly willing to criticize Sanseverino for not foreseeing the same “dramatic change” and raising the same sufficiency claim that had been rejected numerous times before.
So let’s talk about this LIO stuff now. The Court grants the State’s request that if it chooses not to retry him on the kidnapping charge, it is entitled to a conviction of Unlawful Restraint. Yes, that was worthy of italics. In doing so, the Court blurs the line between the jury’s role and an appellate court’s role. While expressly avoiding the legal issue on which numerous other courts have split, i.e., whether an appellate court can enter judgment on an LIO on which the jury was not instructed at trial, the court instead creates a special rule just for this particular case. The concurring opinions aren’t any better. All seem to agree that Sanseverino isn’t prejudiced here (see above), so it’s no big deal if the jury wasn’t instructed on the LIO the court now wants to impose as judgment (bearing in mind that the judgment will only enter if the state doesn’t exercise its option to have a re-trial on the kidnapping charge. Apparently the court feels so badly about blindsiding the state with its Salamon decision, that it’s allowing the State options to choose from to cure the prejudice . Sigh, that must be nice).
The only justice who seems to have opted out from this is Justice Shaller, who dissents from this second part of the Court’s decision:
[A] remand for sentencing on a lesser included offense is appropriate only when a jury properly has been charged on that offense because: (1) appellate courts should avoid resolving cases in ways that involve fact finding or blur distinctions between appellate and trial court determinations; (2) requiring an instruction maintains the distinction between an appellate court’s determination that the record evidence is sufficient to support a guilty verdict and a jury’s determination that the state proved its case beyond a reasonable doubt; (3) when the jury has been instructed on the greater offense only, any attempt to assess what the jury would have determined with respect to the lesser offense is speculative; (4) only when the jury has been instructed on the lesser offense and could have explicitly returned a verdict, is the defendant undeniably aware of his potential liability for the lesser offense; (5) the practice of remanding for sentencing on lesser offenses that have not been submitted to the jury may encourage the state to risk not seeking instructions; (6) the state gains an unfair strategic advantage if it alone can adopt an all or nothing approach at trial but, under some circumstances, change its position and argue that the lesser offense should have been submitted; and (7) the defendant may have forgone a particular defense or strategy due to the failure to instruct on a lesser included offense.
He also sums up the problems with the “luck” argument quite succinctly:
If, indeed, the defendant ‘‘has benefited from our holding in [State v. Salamon],’’ as the majority argues, the unexpected holding in Salamon can be said to have done no more than to remedy a deficiency in the law, a benefit to which the defendant doubtless was entitled.
It’s almost like a few days after Salamon and Sanseverino the Court realized that it had ruled in favor of defendants (and their rights) and were horrified by it, so they set about “remedying” (get it?) it.
(I would be remiss in not mentioning that this post was practically co-written by Miranda and she remains, as always, the real brains behind this operation. Oh, and the usual “this post is an expression of the personal opinions of Miranda and myself and not of our employer”.)
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