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From State v. Juan V, issued yesterday. Berdon, J., dissenting:

This is a difficult case, not because of the applicable law, but because it involves allegations of sexual assault and abuse of J, a four year old child, allegedly perpetrated by the defendant, Juan V., her grandfather, the  thought of which would arouse the emotions of anyone. But we are a nation of laws, and a jury must decide the guilt or innocence of a defendant on the basis of legally admissible evidence. In such cases, it is the duty of this court to rule on claimed errors even when its decision would result in a new trial. In the present case, I believe that the trial court committed error, that the defendant’s conviction of sexual assault in the first degree and risk of injury to a child should be reversed and that a new trial should be ordered on both counts.

and:

I am bewildered by the majority’s footnote six. First, Berrien referred clearly to ‘‘the interview.’’ He did not state ‘‘in an interview.’’ I hope that we can all agree that J was interviewed only once at the advocacy center and that this interview was conducted by Agudelo. Second, it is clearly indicated to the reader that I added ‘‘with Agudelo’’ by placing that phrase in brackets. No matter how the phrase is read, Berrien was in essence writing that J’s statement in the interview was credible. By doing so, Berrien overstepped the limits imposed on expert testimony and invaded the factfinding province of the jury.

I felt like I was drunk this morning (or was it the judges?) when I read the Advance Release Opinions around noon. For there are not one, not two, but three reversals today (and three dissents!).

Goldmine.

First up, from the Supreme Court, State v. T.D.M.. This was a 5-2, after an en banc hearing. On appeal, the defendant claimed that he was not adequately canvassed during his waiver for counsel, the judge improperly charged the jury, he was deprived of due process when the police failed to take adequate steps to locate him and the prosecutor engaged in impropriety during trial.

The Court reversed the conviction on the first claim, addressed the next two (denying them) and did not address the fourth. The thrust of the inadequate canvass claim was that at no point was he told of the consequences of his conviction, i.e., the maximum penalty he could be subject to.

In the present case, as in Diaz, there is simply no evidence present in the record from which we could infer that the defendant had any meaningful appreciation of the period of incarceration he faced if convicted of the charges he faced. ‘‘In such circumstances, it cannot be said that the defendant ‘received a realistic picture from [the court] regarding the magnitude of his decision [to proceed to trial without counsel].’ United States v. Fore, 169 F.3d 104, 108 (2d Cir.), cert. denied, 527 U.S. 1028, 119 S. Ct. 2380, 144 L. Ed. 2d 783 (1999). In other words, the record does not establish that the defendant ‘knew what he [was] doing and [that] his choice [was] made with eyes open,’ as the constitution requires. . . . State v. Day, 233 Conn. 813, 828, 661 A.2d 539 (1995), quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).’’ State v. Diaz, supra, 274 Conn. 833–34.

There is a dissent.

Moving to the Appellate Court, another reversal in State v. Wade. The defendant was convicted of manslaughter in the first degree (evincing extreme indifference to life) for being unbelievably high and consuming some really, really dangerous drugs and providing them to the victim, who was also unbelievably high and consuming really, really dangerous drugs. (I mean, some of this stuff is NUTS.)

The court, however, found that the State could not prove that the actions of the defendant were knowingly reckless:

The state claims that it is common knowledge that prescription medication has inherent risks and that its administration, therefore, must be overseen by a physician. The state also argues that it is common knowledge that taking certain medications in combination is inherently dangerous. The state, therefore, concludes that a reasonable person would not give another person either a combination of medications or multiple dosages of them over a short period of time because doing so creates a substantial risk of death.We are not persuaded that the average person knows the potentially toxic effects of Methadose and fentanyl taken individually or in combination. Moreover, the circumstance in which the defendant gave the victim the medications was one in which the participants voluntarily sought and took medications and illegal substances in large quantities.

The Court reverses the conviction and orders entry of a judgment of conviction of manslaughter in the second degree, as an LIO.

The third, and final, reversal comes in State v. Martinez. The claim raised on appeal was that the trial court improperly declined to hold an evidentiary hearing on the admissibility of prior sexual conduct of the victim. The court holds that the defendant produced sufficient evidence for the trial court to be able to determine whether the prior sexual conduct was relevant to the issues at trial and fit within one of the exceptions to the rape shield law.

After an examination of the record, we conclude that the police reports provided sufficient proof for the court to be able to determine that J’s prior sexual conduct was relevant to whether the defendant had used force in sexually assaulting J. If the defendant had been able to establish that J’s brother did not use force, he might have been able to cast reasonable doubt as to whether the defendant had used force in having sex with J. Because we conclude that J’s prior sexual conduct was relevant to whether the defendant used force in committing the sexual assault, we do not need to address whether it was relevant to J’s credibility, as the defendant argues.

There is a very lengthy dissent. I expect cert to be granted in this case.

Moving to the losses, first we have State v. Kimble. Here, the Court affirmed the trial court’s denial of a motion to suppress, reasoning that gun that was found in a rental car was in plain sight and that the defendant had no standing to challenge any search, because he had no reasonable expectation of privacy. The defendant also claimed that the gun was the illegal fruit of an illegal detention. This claim was analyzed under the State Constitution, which has been held to provide greater protection. Even then, the claim failed. The defendant claimed that the detention started when the officers approached him and his co-d sitting in the car (I’m simplifying it here). The State claimed that the detention commenced when the defendant fled from the car and the officer pursued him, because at that time, the officer had R & AS that criminal activity was afoot. The Court agrees with the State.

Then there’s State v. Betancourt, which is a sufficiency of evidence and prosecutorial misconduct claim. It is really boring. Read it if you want.

In State v. Devivo, the defendant finished his sentence and probation and then moved to vacate his guilty plea. Since there is no statutory or common law authority for the trial court to entertain such a motion at that stage, the court rightly dismissed it. He then asked the Appellate Court to exercise its supervisory authority to review the claim. The court tried hard not to laugh.

In the lone habeas appeal, Dawson v. Comm’r, the defendant claims that the habeas court incorrectly found that he’d violated the terms of his plea agreement, among other things.  The defendant had pled under what is known as a Garvin plea in CT. Basically, the defendant agrees to a sentence, postpones sentencing on the condition that he shows up for sentencing and if he does, he gets that deal (another frequent condition is to avoid arrest). If he does not show up or gets arrested, the judge may impose up to the statutory maximum.  Here, the defendant didn’t show up at 10, but rather at some point between 10:55 and 2:00pm. The trial court found that he had violated the terms of the Garvin plea and thus imposed a stricter sentence. The Appellate Court affirmed.

That took way too long.

As you can judge by the title, today’s advance release opinions from the Supreme and Appellate Court seem promising but quickly put me to sleep. That may have nothing to do with the opinions themselves.

The Supreme Court issued State v. John M., in which the defendant claimed that the trial court abused its discretion in not permitting the defendant to question the victim about her motive in testifying. His theory was that the victim’s account of the abuse was starkly similar to the victim’s mother’s own abuse as a child and that it would tend to show that the victim’s story was “coached”. The defendant was also precluded from testifying about the victim’s mother’s abuse. The court pulled out the oldest trick in the book, saying that even if the trial court had abused its discretion, because it was a bench trial and the trial court didn’t seem too impressed with that theory, the error would be harmless. The Court also upheld the exclusion of testimony regarding the victim’s mother’s animus toward the defendant, because apparently that is irrelevant to the claim that the defendant abused the victim. What’s that you say? It goes to bias? Well, it seems there was plenty of other evidence from which the trial court could infer animus.

Moving to the Appellate Court, first up is State v. Gonzalez. Basically everybody screwed up. Issues weren’t properly preserved, they weren’t briefed, what seems like a viable motion for new trial based on newly discovered evidence wasn’t properly presented. Clusterf*ck. Habeas coming.

Next, in State v. Abreu, the defendant wanted to introduce evidence of the victim’s “job” as a drug dealer to infer that he was armed and about to attack him or the victim’s BAC or the victim’s status as a fugitive or the victim’s criminal record to support his theory of self-defense. The Court emphatically says “NO”.

This is where I fall asleep. The rest are unremarkable. Read for yourself.

The title of this post is flippant, but the case it refers to is rather interesting. In State v. John F.M., the Supreme Court reversed the Appellate Court’s reversal of a conviction. John F. M. was convicted of sexual assault in the third degree under the sex with a kindred person subsection. It provides in relevant part:

(a) A person is guilty of sexual assault in the third degree when such person (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.

46b-21 provides:

No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.

So you can’t have sex with any of those people either.  John F.M. first raised a sufficiency challenge - that based on the defendant’s testimony, the jury could not conclude that there did, indeed, exist such a relationship (the girl in question was the defendant’s step-daughter) and that the sex assault statute violates the equal protection clause because it prohibits only heterosexual conduct.

The defendant relied, in his first claim, on an 1827 decision of the CT Supreme Court - State v. Roswell, which held that the relationship between the two must be proven by the state other than by the testimony of the defendant. The Court engages in an analysis and discussion of Connecticut caselaw from 1827 onwards that erodes Roswell and overrules it.

Indeed, since Schweitzer was decided, this court repeatedly has reaffirmed the principle that, “cohabitation as husband and wife is [admissible] evidence, and often sufficient evidence, that the parties have been validly married, but does not in itself constitute a marriage.”

The Court also recaps the law on admission of a party:

[S]tatements made out of court by a party-opponent are universally deemed admissible when offered against him . . . so long as they are relevant and material to issues in the case. . . . [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.

The Court also found that the Appellate Court improperly extended the (overruled) Roswell rule of marital relationships to evidence of parentage.

The Court then turns to the equal protection argument. This, too, it resolves in favor of the state, but in my opinion, their argument is strained and it seems like they are reaching. Result oriented is what these opinions are called.

The claim was that the sex assault statute, which prohibits intercourse between people related in the manner defined in 46b-21, violates equal protection, because the “degrees of kinship” are defined in heterosexual terms.

The Court engages in some statutory construction:

To resolve the state’s claim, we must determine whether the phrase ‘‘degrees of kindred’’ in § 53a-72a (a) (2) incorporates by reference the precise male-female unions enumerated in § 46b-21.

For some reason, it looks at what “degrees” and “kindred” mean and determine that:

Accordingly, § 53a-72a (a) (2) plainly does not incorporate the precise male-female unions enumerated in § 46b-21 but, rather, incorporates only the proximity of relation specified therein, namely, parent-child, grandparent-grandchild, sibling-sibling, aunt/uncle-niece/nephew and stepparent-stepchild. Because § 53a-72a (a) (2) applies equally to both same sex and opposite sex sexual intercourse between individuals who are related within the degrees of kinship specified in § 46b-21, it does not create the allegedly unconstitutional classification and, therefore, does not violate the equal protection clause of the federal constitution.

It does seem absurd that the Statute would prohibit heterosexual relationships and not same-sex relationships, but that statute was likely written before same-sex relationships were much accepted as they are today. To that extent, is it the Court’s job to rewrite the intent of the statute as it is written? The legislature surely could have amended the statute at any point in the past so many years - especially since civil unions have been on their mind - and they did not.

Anyway, it’s interesting.  It takes a statute that is pretty darn specific and broadens its application. I think I got most of it. If I missed something, feel free to leave a comment, Marty.

There’s actually a reversal in the Appellate Court (amongst some affirmances), but I think this post has gone on long enough, so I’ll leave you with a quote. At least there isn’t much chance it will get reversed.

Because the state concedes, however, and we agree, that the defendant’s conviction of criminal mischief in the first degree cannot be reconciled with his conviction of arson in the third degree because the conviction of each crime depends on proof of irreconcilably inconsistent states of mind, the judgment must be reversed as to those crimes and the case remanded for a new trial.

Yesterday, I complained to Miranda that it seems like every time the Appellate Court reverses a conviction, the Supreme Court reverses the Appellate Court. Since today is Saturday and I have nothing better to do, I decided to spend some time and determine whether that was indeed correct. I looked only at the judgments of the Supreme Court in criminal and habeas cases starting with those published in January of 2007 and ending Friday.

This is what I found:

The Supreme Court granted certification to appeal from the judgment of the Appellate Court 27 times. Of those 27 cases, it affirmed the Appellate Court 19 times and reversed 8 times.

Of the 8 reversals, all 8 were against the defendant (meaning, convictions were re-instated).

Of the 19 affirmances, 6 were in favor of the defendant (meaning they upheld 6 reversal of convictions) and 13 were against the defendant (meaning they upheld 13 affirmances of the conviction). [Out of those 19, 3 were companion cases.]

The State was granted certification to appeal 14 times.

There were 22 direct appeals to the Supreme Court (either pursuant to statute, or by transfer).

Of those 22 direct appeals, the conviction was affirmed 18 times and reversed only 4 times.

Overall, after 49 appeals to the Supreme Court in criminal or habeas cases, the conviction was affirmed 39 times and 10 were reversed.

I did not analyze the types of cases or the voting split or who wrote the most decisions. What might be really interesting, however, is the percentage of times the state is granted certification as opposed to the defendant. I suspect one number is rather high and the other quite low. I’m not going to do that, however, because that’s just too tedious.

I set out to prove myself correct and I did so.

Lots of fun stuff from both courts today. Showing appropriate deference, I’ll start with the Supreme Court first.

In State v. Kalphat, the new CJ authors an opinion affirming the conviction of Mr. Kalphat (who was represented by the blawgosphere’s own Norm Pattis). The trial court had denied a mtn to suppress a warrantless search because the defendant didn’t have standing to challenge. A shipping company received some boxes addressed to a M. Patterson that were “unusually heavy and taped” because they were supposed to contain clothing. A nice employee called the cops, but her inquisitive supervisor couldn’t contain himself and cut a hole in one of the boxes and smelled fabric softener, which apparently is the masking smell of choice for pot smugglers (no, this isn’t what the title of this post is referring to, although that works too). The cops showed up and pot was found. They called the defendant, for reasons not disclosed by the record (huh?) to come pick up the boxes, which he dutifully did. He was nabbed.

As to the standing issue, he testified that he’d picked up boxes from that company before, but that he wasn’t M. Patterson (although at oral argument it seems that Norm said that he was M. Patterson - but that’s not in the record). Defendant’s claim for standing was that he was a “bailee” and thus had a R.E.O.P. Then, at oral argument, he argued that a person has a REOP in items shipped to an alias before he takes possession. Apparently, there is some support for this. The court distinguished the facts, however, by stating that there’s no REOP when shipped to another actual person, as opposed to an alias.

Heartbreakingly, the Court concludes that even if they agree that there is a REOP when shipped to an alias, defendant did not establish in the trial court that M. Patterson was his alias.

Moving on to the Appellate Court, we have the only reversal of the day. In State v. Angel T., the court concluded that there was prosecutorial misconduct impropriety when the prosecutor commented on the fact that the defendant obtained a lawyer and did not co-operate with the police.

In the present case, the evidence and comments exceeded a focus on any proper issues other than guilt. Before any arrest, the defendant, who was a suspect in a criminal investigation, was asked by the police to submit to a police interview. We believe that the defendant, facing such a request, has the right, without penalty, to seek and to have the assistance of counsel when interacting with police officers who are seeking an interview.

Next up, we have the very interesting State v. McCarthy. The defendant’s first claim was that the state’s case was so weak that the jury’s verdict could not be relied upon and that they must’ve been imbibing copious amounts of liquor while deliberation, which is the only explanation for how they returned a guilty verdict. Note, however, that this was not a legal insufficiency claim.

This trial was the shadiest of the shady. You had witnesses whose testimony was grossly inconsistent with the physical evidence, witnesses who changed their testimony and witnesses who were on PCP. Yet the Appellate Court manages to maneuver around it all to say that it was ultimately the jury’s job to determine credibility. There’s also the improper admission of an officer’s testimony that’s found to be harmless (!). There were also claims of improper jury instructions and remarks by the prosecutor, but they are too lengthy for me to get to here. Wait for New Case News to summarize it.

Finally, we have the habeas decisions. There are six that are memorandum decisions and one that might as well have been. That’s all you’ll get from me on those.

On the heels of my post last week about hazardous duty pay comes this decision from the Appellate Court today. In State v. Damato, the Appellate Court affirmed convictions for attempted assault and murder of a prosecutor. The State alleged that the defendant sought to hire someone to hurt a prosecutor who he felt was “riding his son” in an unrelated prosecution. The defendant argued that the State did not prove that he took a substantial step towards committing the murder and assault of the prosecutor. Specifically, he argued that the evidence presented could not establish that he had followed the prosecutor and reconnoitered his residence.

In rejecting the claim, it summed up the evidence as follows:

In the case before us, the jury heard testimony that the defendant wanted to injure or kill [the prosecutor]. The jury also heard [witness one's] testimony that the defendant had told [witness one] that he had somebody follow [the prosecutor] to Steve’s Boston Seafood restaurant and [witness two's] testimony that the defendant provided detailed information about [the prosecutor's] place of residence. [Witness two] testified that the defendant ‘‘mentioned an address . . . he says the name of a house on a dead-end street, across the railroad tracks. . . . [The defendant] told [witness two] where [the prosecutor] lives. . . . He said it was on a dead-end street, across some tracks and accessible by boat.’’ The defendant also told [witness two] that there were bushes on the property that one could go through to get to the house. The jury heard [testimony from the prosecutor that confirmed that the above descriptions were true].

The Court also rejected a claim of instructional error because the jury instruction mirrored what the defendant requested and then went on to reject a claim that the trial court failed to give, sua sponte, an instruction on jailhouse informant credibility because it was up to the defendant to request it. Finally, there was a claim of improper admission of prior misconduct and rebuttal testimony. Both were rejected.

Next up, State v. Nelson. The court rejected a claim that there was insufficient evidence to prove that he conspired to use a knife from the victim’s home in the commission of the robbery. Basically, defendant and co-defendant broke into victim’s house to rob him. While there, defendant used a knife from the house to hurt the victim. The Court said that there doesn’t need to be an express agreement to prove conspiracy and they could have formed the intent while in the commission of the crime. The fact that he didn’t bring the knife with him doesn’t mean anything.

The court also rejected a claim that a 911 recording made by the victim while he was tied up in his car, just after the defendants left him somewhere was improper as it was not an excited utterance. The focus of the claim was that the victim did not have the opportunity to observe what he later spontaneously uttered.

The test of whether a declarant sufficiently observed the subject of his spontaneous utterance is ‘‘whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement.’’ State v. Westberry, 68 Conn. App. 622, 631 (2002). In this case, the state presented evidence that [the victim] not only observed but also experienced the events in question.

Another of the defendant’s claims failed because he did not preserve it at trial and Golding review doesn’t apply to evidentiary claims (that the trial court improperly instructed the jury it could consider the 911 call for its substance).

Then there was a habeas denial, which was affirmed: Vidro v. Comm’r. Nothing noteworthy, except for the fact that trial counsel was Norm.

Finally, there’s Kaddah v. Comm’r, in which the Appellate Court goes into the merits of the IAC claim (it was against prior habeas counsel), but then ends by affirming, deciding that the denial of petition for certification to appeal wasn’t an abuse of discretion.

Four decisions from the appellate court today and all four on crim law. Two good, two pretty bad.

In State v. Gupta, the defendant claimed that the trial court incorrectly joined charges involving three separate defendants for trial. Gupta was a pulmonologist who was charged with inappropriately touching the breasts of two patients and going much further with a medical assistant who worked for him. He also claimed that the trial court incorrectly precluded admission of medical treatises and videos that would have established that his alleged “fondling” of the two patients was actually accepted medical procedure. The Court reversed, agreeing with the defendant on both claims. It held that the charges against the third victim were presented first and the jury couldn’t possibly separate the more serious charges from the relatively minor groping and that the treatises and videos were relevant and would have assisted the jury and weren’t cumulative. There is a concurrence in which Judge Flynn agrees with the second claim but not the first. Expect a pet. cert, a grant and a reversal. I mean..umm….yeah…

Then there’s State v. McSwain, which is just really mean. The defendant here claimed that the trial court improperly precluded admission of evidence that would have gone to support her theory of self-defense and violated her right to have counsel of choice for her sentencing. The Court rejected both claims, but not before it set up a habeas (shhhh!). The defendant got into a chickfight (that’s a legal term) in Marina village and ended up cutting the victim with a razor blade. She introduced evidence of bad blood between the two and then wanted to introduce evidence that she had been raped previously in circumstances that were eerily similar to her fight in this case. Unfortunately, trial counsel had one of those moments where he/she couldn’t express themselves in a way that a 5 year old would understand, so when the objection of relevance was put forward, all he/she could say was “It’s relevant” and eventually, “it goes to intent”. That’s about it. Despite that, the trial court disallowed it provisionally and when the door later opened, counsel walked right past it. So no go. The second claim was also rejected because the court opined that it was better raised via a writ of habeas corpus because it would require development of facts outside the record before it. During the sentencing proceeding, the defendant uttered the following, which warms the cockles of my heart and makes its ways into the title of this post:

I also feel that I think it would be better for me to continue with a public defender. I think that things might happen differently if I were to have a public defender from the beginning.

Take that, Judge Hoffman.

Next we have State v. Smith, in which the defendant challenged seizure as a result of an illegal warrantless search, the suggestive show-up, the admission of a witnesses prior inconsistent statement under Whelan and his enhanced sentence for being a persistent dangerous felony offender in light of State v. Bell. One guess as to the outcome. Affirmed except for the last claim. If you really want to know why, wait till New Case News summarizes it.

Finally, we have State v. Ayuso, which is interesting only because the defendant sought to have a witness testify. The witness invoked the 5th and then the defendant tried to get the court to order the State to grant him immunity. Didn’t work at trial, didn’t work on appeal. The defendant was charged with trying to shoot and kill undercover cops who were attempting to buy drugs from him. He was acquitted of the attempted murder, but convicted of assault. This witness he wanted to have testify appears to be some other drug dealer with whom the defendant had a beef and who had threatened the defendant. He was incarcerated at the time of trial. The defense wanted him to testify about some argument he had with him and their interaction - nothing to do with the shooting. The court first made one of those Jon Stewart faces where he gets confused and then said, well, he can invoke the 5th. The appellate court agreed.

That’s all folks! And I did all of that from memory!

More opinions than you can shake a stick at and yet not a single win. Not one good thing for defendants. Well that’s not true. There’s one nice footnote. Let’s get to that first.

In State v. Carmona, the Court denied an appeal from (stay with me here) the trial court’s denial of a Motion to Correct. A Mtn to Correct is CT’s procedural vehicle for raising certain claims before bringing them via a petition for writ of habeas corpus. Mr. Carmona claimed that the State breached his plea agreement and that the DOC’s application of jail credit violated double jeopardy. The trial court (and the State) both said that the habeas court was the appropriate place to raise those claims.

What brings joy, however, is that apparently the State, in the habeas court, claimed procedural default for not raising these claims in the trial court! The State’s position, essentially, was: Can’t go to the trial court because you should go to the habeas court and you can’t go to habeas court because you should go to the trial court, where you can’t go because you….well, you get it. The Appellate Court dropped this gem:

Despite that representation to this court, in her return to the defendant’s amended petition for a writ of habeas corpus filed during the pendency of this appeal, the commissioner of correction nevertheless has alleged a procedural default on the part of the defendant for his alleged failure to appeal from the trial court’s ruling on the motion to correct his sentence in the present case. We find that incongruity troubling.

Next comes State v. Hannah, in which the defendant claimed that the court erred in not admitting two recorded phone conversations that proved his innocence. The court found that the defendant did not create an adequate record by not transcribing the phone conversations, so it could not review the claim. It is notable because some of the participants have nicknames like “Too Cool” and “Wheatie”.

The next loss is State v. David O, in which the defendant claimed prosecutorial misconduct impropriety. The claim was that the prosecutor talked about the law and appealed to the jury’s emotions. You know how this ends.

In the first of the habeas cases (and the summary dismissals), Bowens v. Comm’r, the court found that the habeas court’s decision to deny cert. to appeal was not an abuse of discretion. That’s when I stopped reading. That’s when you should, too.

In another habeas case, Madagoski v. Comm’r, the petitioner claimed that he was denied his right to Due Process because the state didn’t preserve the evidence, namely a van, indefinitely. The Court couldn’t even find that the habeas court abused its discretion in denying cert. to appeal.

Back to the direct appeals. In State v. Ruben T, the defendant was tried before a three-judge panel. He claimed that the panel incorrectly found that he had not proven EED and also erroneously admitted testimony under the state of mind exception to hearsay. The panel found (and was affirmed) that the defendant’s loss of self-control was not caused by ‘‘an extremely unusual and overwhelming state that was not mere annoyance or unhappiness.’’

Back to habeas. In Wooten v. Comm’r, the petitioner raised ex-post facto, equal protection and separation of powers challenges to the retroactive application of a judicial decision interpreting a jail credit statute. Quite summarily denied. Which is disappointing, because there are about 5600 inmates affected by this retroactive application.

Finally, in State v. Valentin, the claim was that the judge inadequately charged the jury on self-defense and on reasonable doubt. The claim was rejected because it was not preserved and it did not rise to one of Constitutional magnitude.

But that’s only 8, you say! That is correct. The other three were disposed of with Memorandum Decisions. Which basically means an opinion wouldn’t have been worth the paper it was written on. Or that they didn’t want to spend the time it would have taken to print the opinion discussing it.

By the way, if you’re a public defender in CT, you need to check out the revitalized New Case News. The powers that be (you know who I’m talking about) have done a terrific job with it.

When I got to work this morning and followed my daily routine of checking the judicial branch website to see if there were any opinions being issued today, I was excited. Giddy, even. (Get it? Giddy…)

The Supreme Court had decided to release opinions in three very, very interesting cases. As luck would have it, the opinions were extremely anti-climactic. Nothing in any of these opinions was of substantive value. *grumble* *grumble*

The first, State v. Khadijah, was the appeal from the reversal by the appellate court of the defendant’s conviction. The defendant was convicted of failure to appear, because, after returning from work at 8am, she had fallen asleep on the couch and her boyfriend had forgotten to wake her up in time. The appellate court found that the evidence was insufficient to sustain the conviction on the “willful” element of the charge. The Supreme Court dismissed the State’s appeal on the grounds that cert had been improvidently granted.

Next up, Porter v. Commissioner, was also dismissed on the grounds that cert had been improvidently granted. Porter appealed from the Appellate Court’s denial of his appeal. The appellate court had concluded that the habeas court did not abuse its discretion in denying certification to appeal. Mr. Porter claimed that his appellate counsel was ineffective for not raising the issue of instructional error (which issue was not reached on his direct appeal because it was not adequately briefed - as found by the same appellate court). Nope, no good.

Finally we come to Taylor v. Commissioner. The petitioner claimed that his plea was involuntary. The habeas court denied the petition and denied certification to appeal. On appeal, the appellate court remanded to the habeas court with an order to make findings on whether petitioner had proven cause and prejudice which excused his procedural default. The State appealed, saying that the appellate court improperly found that the habeas court had abused its discretion in denying certification. It was an interesting issue because the appellate court had ruled that if there is no evidence on the record of cause and prejudice, then it can find so, but if there is evidence of cause and prejudice and there is no finding, then it must remand for the habeas court to make that finding. Unfortunately, we got no guidance, because the Supreme Court agreed with the State that the appellate court incorrectly found that the habeas court had abused its discretion in denying certification to appeal. So boo.

You’d think that this would be an easy one. However, 50% of the judges that looked at this case disagreed. Luckily one of those was the trial judge, so the 3-judge panel of the Appellate Court overturned the conviction.

In State v. Browne [pdf], the defendant argued that his conviction should be overturned because the search warrant was not valid. In the specificity portion of the warrant, the items sought were listed as “cocaine, crack cocaine”, but the cops seized marijuana and Browne was convicted of possession of marijuana.

The cop that prepared the warrant testified that the reason he entered cocaine instead of marijuana (which was the focus of the investigation all along) was that he cut and pasted from another warrant and left it in. Apparently, only the mouse was working on his computer.

The Court doesn’t buy this and says particularity means particularity:

This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) (‘[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’)

Obviously, since this is a reversal of a conviction, there has to be a dissent [pdf].

There’s also a pretty summary disposal of a habeas appeal, some constancy claims from a child sex assault conviction that are handily dismissed and this last one that holds that evidence of unemployment is admissible as motive for robbery (and then the usual: even if it was prejudicial, it was harmless. I really hate harmless error. Hate.)

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The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.

Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.

No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.

There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!

Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.

I hate when they do that.

On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se - raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.

By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.

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