ct state law
New proposals to toughen CT’s Megan’s law
Aug 23rd
State legislators yesterday unveiled a package of 10 proposals that would revamp the state’s Megan’s law provisions, toughening restrictions on sex offenders. CT is just one of many states considering tougher legislation. [More commentary here.] According to news sources,
[t]he proposed changes would go beyond simply providing information about where offenders are living, but would provide means to aggressively track an offender’s whereabouts and attempt to prevent future attacks.
Legislators and law enforcement officials said they want judges to exercise a rarely used statute for sexual offenders. Called civil commitment, a judge could order a hearing upon a suspect’s release, exploring whether he should be permanently housed in a secure forensic hospital setting.
Apart from that, legislators want to toughen the registration requirements, including pinning down offenders that change their names, have PO Box addresses and are homeless (which I’ve long maintained is a big problem with the registration requirement). Legislators also want to add CT to the national database.
Which brings us to another proposal – the GPS monitoring.
Under the GPS provision, sex offenders themselves would pay for the cost of equipment and monitoring by an outside agency, which would alert probation officials when offenders head toward forbidden destinations, including schools or the homes of previous victims.
At a cost of $8 to $15 per day, per offender, the GPS system, using radio signals from bracelets that would bounce off satellites to continuous monitors, would alert officials if dangerous sex offenders stray toward schools or previous victims.
I wonder if the provision requiring offenders to pay for their own GPS monitoring will be enforceable, or what they will do with offenders who are unemployed or have incomes below the poverty level.
Some of the other proposals include lengthening sentences, for up to life for the most violent and persistent. Interestingly, the lawmakers did exhibit a willingness to do more than just punish:
"But we can never guarantee every child’s safety until we can figure out what causes this demonic sexual behavior," [Speaker of the House James] Amann said. "So, one last recommendation is to invest in areas of treatment."
These proposals will be put before the legislature in the next session.
In other sex offender related news, CNN has this article outlining the challenges some people are bringing to these new laws being enacted all over the country. The article highlights the problem that will arise when every town starts enacting "no sex offender" zones, which is what happened to the individual focused in the story.
"We’re outgrowing our house fairly quick," said Elwell, 34. "If we have to move, we’ll have to find a map, get a plot of land and figure out where (the pedophile-free zone) doesn’t reach."
A Brick, New Jersey ordinance added bus stops to the list of locations off limits to offenders and included a 2,500-foot buffer zone. With more than 2,000 school bus stops in the town, the measure effectively bars sex offenders from living anywhere in Brick.
Connecticut Supreme Court reverses conviction
Aug 9th
The Connecticut Supreme Court issued State v. Finan [pdf] yesterday, reversing a conviction on the grounds that the lay opinion testimony of four police officers as to identification was indeed an opinion as to the ultimate issue and should have been excluded. The prosecution arose out of a robbery of a 7-11, whose security cameras caught two men [one later identified as the defendant] entering, robbing and leaving the store over a brief period of time.
Defense filed a Motion in Limine to preclude the testimony of the police officers as regards their opinion that the individual in the videotape was indeed the defendant. In what some would call "innovative lawyering", the state argued that the police officers would not testify as to their opinion, but rather their suspicion that the defendant was the individual in the videotape. The trial court granted the MIL, but allowed the police officers to testify as to their suspicion.
On appeal, the Appellate Court found that the state had improperly characterized the police officers’ testimony as suspicion rather than opinion (really?), but held that the identification issue, standing alone, was not dispositive of his guilt and therefore the testimony was permissible.
So let’s get this straight – in a robbery case, where the actual act is caught on videotape, identification is NOT the only issue? Almost all of defense counsel’s closing argument was geared towards identification; the state put on 6 ID witnesses.
On appeal to the Supreme Court, the defendant renewed his arguments and the state countered that if the Court found that the testimony was opinion, then it should be allowed under the identity exception to the rule. In their opinion, after much discussion of what "ultimate issue" really is, the Court decides that in this case, identification was indeed an ultimate issue.
The Court also ruled that there is no exception to the rule excluding testimony on the ultimate issue in a case. A new trial was ordered.
Important Habeas denials
Jul 19th
The Supreme Court yesterday released some pretty important habeas decisions and atleast one high profile crim decision. I’ll go into the Habeas decisions at the same time, as they address basically the same issue.
The Court released Lebron v. Comm’r, McCarthy v. Comm’r, Hickey v. Comm’r and Oliphant v. Comm’r. The basic issue was whether, in all the cases, the Appellate Court had properly dismissed the habeas petitions for lack of jurisdiction, because in each case the petitioner was not "in the custody" of the Department of Corrections. Each petitioner had discharged his sentence.
In Oliphant, the petitioner was incarcerated under two sentences; one imposed in April and the other in September. By the time he filed his Habeas petition, he had discharged the shorter April sentence, but was still held under the longer September sentence. The Habeas court dismissed the petition because he was no longer "in custody" under the April sentence, which had been the basis for his petition (even though he was actually being held in jail).
The Court first considered whether the petition should be broadly construed to include an attack on his September conviction as well, even though it wasn’t explicitly mentioned in the pro-se petition.
The Court writes:
The modern trend . . .is to construe pleadings broadly and realistically, rather than narrowly and technically.’’ (Citation omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 655–56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their ‘‘lack of legal education and experience . . . .’’ Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929). This rule of construction has limits, however. ‘‘Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.’’ (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 618, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).
Additionally, the Petitioner had already raised a separate Habeas petition in connection with his September conviction, so the Court denied this claim.
Next, Petitioner raised the following two claims: (1) That Connecticut’s "in custody" statute should be read more expansively than the Federal Statute and (2) the Petition is not moot because collateral consequences flow from his illegal conviction.
The Court addressed these claims in Lebron, so let’s turn there.
In Lebron, the facts were reasonably similar. Petitioner’s 1992 sentence was being used to enhance his 1999 sentence, even though he had discharged the 1992 sentence. The Habeas Court dismissed the petition because Petitioner was not being held "in custody" on his 1992 sentence.
Challenges to expired convictions under Federal law are governed by Maleng v. Cook, 490 U.S. 488 (1989). In Maleng, the Court held
‘‘once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.’’
However,
[t]he majority carved out one exception to this general rule—it concluded that a habeas petitioner could challenge an expired conviction if the petitioner attacked his ‘‘enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the [s]ixth [a]mendment, as set forth in Gideon v. Wainwright, [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)].’’ Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001).
Applying all of this caselaw, the Court found that the Habeas (and Appellate) Court correctly construed his 1999 petition as an attack on his 1992 conviction.
The Petitioner then alleged that the Appellate Court improperly dismissed his petition for lack of subject matter jurisdiction, because the custody requirement in C.G.S. (stating that a Habeas petition is to be filed by someone in the custody of the DOC) related to venue and not jurisdiction. The Court, after an analysis of the jurisprudence of Habeas Corpus, found that there was no doubt that the custody issue was jurisdictional and denied that claim.
Finally, the Petitioner claimed that the Appellate Court improperly found that the collateral consequences of his 1992 conviction were insufficent to find him "in custody" under Maleng and Lackawanna.
On that matter, the Court held,
We conclude that a petitioner whose conviction has expired fully prior to the filing of a habeas petition is not in ‘‘custody’’ on that conviction within the meaning of § 52-466, despite the alleged existence of collateral consequences flowing from that conviction.
So, in accordance with this decision in Lebron, the Court denied all four Habeas appeals. The Crim decisions to follow. For more, see this Courant article.
habeas decisions
Jul 14th
Am experiencing a little down time at work, so I figured I’d post quick updates on the latest criminal cases from the appellate court. This post summarizes the habeas decisions and the next one will be about the criminal decisions. The Court released Frank v. Comm’r, Diaz v. Comm’r and Kelley v. Comm’r [all files .pdf]. Both Frank and Diaz were cursory Simms and Lozada dismissals with the following paragraph:
We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further.
That takes care of that. The third, Kelley, is actually discussed on the merits. But when the Court describes petitioner’s claims as
(1) not conducting an adequate pretrial investigation and (2) failing to act in a variety of ways during the trial.
you know you’re in trouble. These are two of the vaguest claims you could have. Nothing specific at all here – what is "variety of ways", for instance? Let’s read on. As to the first count – the Petitioner claimed that his trial counsel failed to investigate the existence of one alibi witness. The Habeas court found that trial counsel did indeed try to locate this one person and talk to his mother, who stonewalled. Deferring to the Habeas court, the Appellate Court rejected the first count. In the second count, petitioner claimed
(1) failing to object to and to request rulings on certain aspects of the prosecutor’s cross-examination of alibi witnesses, (2) failing to object to the prosecutor’s reliance in opening and closing arguments on, what the petitioner classifies as, an ‘‘improper inference of recent fabrication of the alibi defense,’’ (3) failing to cross-examine the victim about prior accusations of sexual assault by others against her, (4) failing to request that the court allow an examination of the victim outside the presence of the jury and (5) failing to except to the court’s refusal to allow the petitioner to cross-examine the victim about alleged prior sexual attacks.
The Habeas Court addressed only allegation (3) above, finding that trial counsel had attempted to cross-examine the witness, but was shut down by the trial judge. The Appellate Court affirmed that ruling and declined to address any of the other allegations, writing
we note that none, not even those appearing in the petitioner’s amended petition, is accompanied by supporting facts, law and reasoned analysis. The petitioner addresses those alleged failures in a cursory manner at best. They constitute nothing more than bare assertions unsupported by fact, reason or analysis.
Ouch. The appeal was denied. It seems that either the attorney did a bad job, or more likely, was hamstrung by a client forcing him to raise barely colorable issues.
Habeas granted (in part)
Jul 7th
The Appellate Court released Vivo v. Commissioner [pdf] today, affirming in part and reversing in part. In Vivo, the Habeas Court had denied petitioner’s claims of IAC (both trial and appellate) and that his sentence under CGS 53-202k should be vacated. Habeas counsel had abandoned the claim of IA(T)C in his post-trial brief but continued to raise the claim of IA(A)C: that appellate counsel failed to raise a State Constitutional challenge to the inevitable discovery doctrine. The Appellate Court writes,
The seminal case of Bunkley v. Commissioner of Correction, supra, 222 Conn. 444, considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel.
[H]e must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.
Petitioner claimed that the State Constitution afforded greated protection than the Federal Constitution and therefore it is reasonably probable that his claim would have succeeded, had appellate counsel raised it. The Court relied on one of it’s own decisions in the past, quoting:
‘‘it is clear that Connecticut courts, along with the vast majority of all courts, both state and federal, recognize the inevitable discovery exception to the exclusionary rule as formulated by the United States Supreme Court.’’
Accordingly, the Court denied that claim.
The second claim raised was that petitioner’s conviction under 53-202k (commission of a Class A or B felony with a firearm) was illegal because 53-202k was not a separate crime, merely a sentence enhancement provision. The Appellate Court agreed, citing State v. Dash, 242 Conn. 143 (1997) and reversed with an order to vacate that conviction. Petitioner’s total effective sentence, however, remained unchanged. A small victory is a victory, nonetheless.
Equal sentences for crack and cocaine vetoed
Jun 3rd
Gov. Rell has vetoed legislation [bill text] that would have equalized the penalties for crack and cocaine. [Previous coverage of legislation here and here] Her reasoning?
"Crack cocaine is one of the most dangerous, addictive drugs on the
streets today, and is the source and cause of too much violence in our
cities," Rell said. "Now is not the time to ease our law enforcement
efforts."
The main reason for this bill was to reduce disparities among defendants sentenced for crack and cocaine offenses.
In her veto message Thursday, Rell acknowledged the disparities in the
law and called upon the General Assembly to make changes before the
session adjourns at midnight Wednesday. Rell promised to sign a bill
offered by Senate Republican leader Louis DeLuca and Sen. John Kissel
that "would achieve parity in mandatory minimum sentencing for powder
cocaine and crack cocaine violations" while still imposing tough
penalties on each.
There is a Republican Amendment to the bill that would lower the threshold to 14 grams, instead of the 28 in the current bill.
Senate President Pro Tem Donald Williams said he had not decided
whether to attempt a veto override or whether to schedule a vote on the
Republican amendment."If we do that [amendment], we’re going to
need to put a lot more money into corrections," Williams said, adding
that more cocaine sellers would be put in prison.
Will keep updating as more develops.
Legislature proposes amendment to Megan’s Law
May 20th
On the House calendar is H. B. 6749 [bill text] which seeks to amend certain provisions of the existing Megan’s Law statutes.
This bill refines the sex offender registry laws and makes statutory reporting language uniform. It reduces, from life to 10 years, the mandatory registration period for violators of several statutory rape offenses. It expands the current definition of "nonviolent sexual offense" to an attempt to commit, conspiring to commit, and aiding and abetting the commitment of fourth-degree sexual assault, subjecting perpetrators to a 10-year registration period.
The bill adds activities that trigger a registrant’s obligation to update his registry information and requires the Department of Correction commissioner to ensure that sex offenders in his custody are registered before he releases them.
The bill makes statutory rape offenses involving coaches, mentors, and custodians in positions of trust or power who engage in sexual intercourse with underage victims "criminal offenses against a victim who is a minor," requiring perpetrators to comply with sex offender registry laws for 10 years. Currently, they are "violent sexual offenses," which require lifetime registration.
New bill to amend the death penalty plods/languishes
May 19th
A while back I reported on H.B.6488 [bill text], which passed the Judiciary Committee by a 39-22 vote. I was wondering what happened to it. It seems that it was merged with S.B.895 [bill text]. The provisions seem to be the same. As of 5/11/05 it was moved to the foot of the senate calendar. Maybe some civics expert can tell me exactly what that means.
The OLR bill analysis says the following:
This bill makes three changes to death penalty sentencing hearings. In these hearings, the jury, or the court if there is no jury, weighs aggravating and mitigating factors to determine whether a person convicted of a capital felony is sentenced to death or life imprisonment without the possibility of release.
The bill requires the court to discharge the jury and sentence the
defendant to life imprisonment without the possibility of release if
the jury cannot reach a unanimous verdict within a reasonable time. The
Connecticut Supreme Court ruled that under current law the trial court
has discretion to impanel a new jury to retry the penalty hearing.The bill requires the court to allow the defendant a reasonable
opportunity to make a personal statement in his behalf to the jury, or
court if there is no jury, without being sworn or subject to
cross-examination. This must occur after the evidence is presented and
before closing arguments in the penalty hearing. The Connecticut
Supreme Court ruled that the defendant does not have this right to
"allocution" in a death penalty sentencing hearing, although it is
generally allowed in other criminal cases.Instead of authorizing the court to allow a victim impact statement to
be read in court before imposing sentence on the defendant, the bill
requires the court to allow a representative of each deceased victim to
have a reasonable opportunity to make a victim impact statement to the
jury or the court if there is no jury. This must occur after the
evidence is presented and before closing arguments in the penalty
hearing. The representative is an immediate family member of the
homicide victim or a person legally designated by the victim to
exercise this right. As under current law, a victim advocate must
assist victims in preparing a victim impact statement for the court
files.
This bill made it out of the Judiciary committee by a close 22-17 vote. Let’s see how far it goes.
Are mandatory minimums mandatory?
May 19th
The previous post (and the ongoing discussion in the legal world about min-mans) piqued my interest. In your jurisdictions, O’ PDs, what is the status of a mandatory minimum-sentence? In other words, what is the effect of a mandatory-minimum sentence on parole? Is an inmate ineligible for parole before the expiration of a min-man portion of a sentence?
In CT, eligibility is governed by C.G.S. 54-125a, which says either 50% or 85% of the sentence has to be served before an inmate is eligible for parole, depending on the crime. However, before P.A. 99-196, the statute read
(b) (1) No person convicted of any of the
following offenses, which was committed on or after July 1, 1981, shall
be eligible for parole under subsection (a) of this section: Capital
felony, as defined in section 53a-54b, felony murder, as defined in
section 53a-54c, arson murder, as defined in section 53a-54d, murder,
as defined in section 53a-54a, or any offense committed with a firearm,
as defined in section 53a-3, in or on, or within one thousand five
hundred feet of, the real property comprising a public or private
elementary or secondary school. (2) A person convicted of an offense,
other than an offense specified in subdivision (1) of this subsection,
where the underlying facts and circumstances of the offense involve the
use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent
of the definite sentence imposed. [(3) No person convicted of any other offense for which there is a mandatory minimum sentence which
may not be suspended or reduced by the court shall be eligible for
parole under subsection (a) of this section until such person has
served such mandatory minimum sentence or fifty per cent of the
definite sentence imposed, whichever is greater.]
The part in bold was deleted from the section. So, in effect, an inmate who has a 5 year min-man sentence would still be eligible for parole after serving just 2 and 1/2 years.
Legislation equalizing sentences for crack, cocaine on Gov. Rell’s desk
May 19th
H.B. 6635 [bill text], which equalizes the minimum quantity of crack and powdered cocaine, thereby equalizing sentences is on Gov. Rell’s desk.
Under current law, someone caught
selling a half gram of crack cocaine faces the same minimum mandatory
five-year sentence as someone caught selling 28 grams of powder
cocaine. The bill increases the minimum amount of crack cocaine from
one-half gram to one ounce. That is the current minimum for powder
cocaine.Crack cocaine is cheaper and more prevalent in
cities, and many say it leads to a disproportionate number of blacks
and Hispanics going to state prisons.
Some lawmakers expressed concern that it would send the message that they were "soft on crime". Yes, after all the reports in the news recently about how "tough on crime" policies are ruining economies, we need to ignore the problem and put more people in jail.
Some other legislators said we need to be discussing mandatory minimums. Hear hear. Previous commentary on this issue here.
Is the use of the term victim prejudicial?
May 19th
In this post over at Injustice Anywhere, TXpd considers a new policy of referring to suspects as "persons of interest".
This got me thinking. What of the use of the word "victim" during the trial to refer to a complainant? Is that prejudicial? Does that usurp the role of the jury in a trial where the victimization is, in fact, in dispute? I remember reading a case about it last year, so I did a little LEXIS research. State v. Robinson [pdf] and State v. Cortes [pdf] address the issue.
In Robinson, the defendant raised the issue that the trial court’s use of the word "victim" to refer to the complainant in a sexual assault case deprived him of his right to a fair trial. However, after being objected to by defense counsel, the Court offered to give a curative instruction, which was refused. In this case, the ACOTSOCT held that since the claim was not preserved, in fact since a curative instruction was refused, it was not reviewable under the Evans-Golding doctrine.
Cortes is more interesting, because the SCOTSOCT granted cert. and has not issued an opinion yet. In Cortes, the defendant was convicted of unlawful restraint and assault in the second. On appeal, he claimed that the trial court improperly
violated his due process right to a fair trial during its jury charge by referring to the complainant as ‘‘the victim,’’
The facts basically describe a "he said, she said" scenario, where the complainant alleged that her ex-boyfriend, the defendant, was obsessive and when she wouldn’t talk to him, kidnapped her and took her to New Hampshire. He related that she was emotionally unstable and he felt responsible for her state, so he offered to take her to New Hampshire to visit his family, so she could be with him.
During the trial, numerous witnesses referred to the complainant as "the victim". At one point, defense counsel object and the trial court overruled. It stated,
This [objection] has been raised on the ninth witness in this trial. I just wanted for consistency sake, the court felt it appropriate to maintain what has been presented to the jury rather than change with the ninth witness during the course of this trial.
The prosecutor also used the term victim and so did the judge in his charge. After another objection, the trial court specifically noted that it would not issue a curative instruction. Considering the whole charge, the Appellate Court stated that
Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.
To determine whether the complainant was indeed the "victim" of any crime was the province of the jury in this case. The court distinguished cases in which fact that a crime had been committed was not in issue, merely the identity of the perpetrator. However, in cases where the dispute is whether a crime has been committed, "a court’s use of the term may constitute reversible error".
The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.
The Court also considered whether any prejudicial effect would have been negated by the Court’s other instructions, citing Robinson above (where the court held that the "presumption of innocence" instruction negated the use of the word "victim"). The Court held
We are confident that the court’s other instructions could not have negated such effect under these circumstances, in which the jury faced two conflicting versions of events and had to credit one witness’ word over that of another witness.
The court’s use of the term ‘‘victim’’ in reference to the complainant, under the particular circumstances of this case, may have invaded the fact-finding function of the jury concerning the issue of whether a crime had been committed…
The Court reversed.
The Supreme Court granted cert. limited to the following issue (in relevant part):
- Did the Appellate Court properly conclude that the trial court’s
instructional references to the complainant as ‘the victim’ deprived
the defendant of his right to a fair trial?
I haven’t done a Federal Constitutional search on this issue, but if someone knows of cases that address this, please send me an e-mail or post a comment.
ACOTSOCT decisions*
May 12th
Two of the other criminal law opinions issued by the ACOTSOCT are State v. Boyd and State v. Orellana.
Boyd was convicted of kidnapping in the first and assault in the third. He allegedly sexually attacked a 16 yr old who was working with him. During the course of this attack, he allegedly banged her head against the floor twice, causing her to lose consciousness both times. Subsequent events, including her being temporarily paralyzed at a volleyball game, led to his arrest.
He raised 4 issues on appeal:
I. The Court improperly deprived him of his right to cross-examine by failing to release medical records pertaining to the victim.
Lucy Puryear, a psychiatrist who had treated the victim, was called by the state as a witness and was qualified as an expert in psychiatry and neurology. Prior to her testimony, the court stated that, as discussed in a chambers conference with counsel, Puryear’s progress notes concerning the assault required redaction.
Puryear testified that she treated the victim for PTSD, with symptoms such as loss of details regarding the traumatic event and reluctance to discuss all the details at one time.
Outside of the presence of the jury, defense counsel asked Puryear about a notation in her progress notes regarding ‘‘family stressors’’ that occurred prior to the assault. These stressors involved certain difficulties facing the victim’s sibling. In Puryear’s medical opinion, these stressors had nothing to do with the victim’s recollection of the assault.
Defense counsel continued to inquire about the victim’s relationship with her family, and Puryear testified unequivocally that the victim’s familial issues were unrelated to the symptoms of posttraumatic stress disorder.
The standard for determining whether medical records should be turned over was outlined in State v. Esposito, 192 Conn. 166. The standard is that the defendant should make a showing that the confidential information must be turned over so as to protect the defendant’s constitutional rights. If such a showing is made, the state should obtain the witness’ permission to allow the court to conduct an in camera review of the documentation and if necessary, turn it over to the defendant. If the witness does not agree, then his/her testimony must be stricken.
However, the Court noted, citing State v. Palladino, 69 Conn. App. 630, that this applies only where there is no voluntary disclosure of the records.
neither our Supreme Court nor this court has held that such an in camera review is necessary where a victim freely gives up any rights to confidentiality that she might otherwise have
In this case, the victim orally waived her right to confidentiality and turned over the notes to the prosecutor. At that point, the notes should have been turned over to defense counsel and there was no role for the Court to play. So you’d think that the Court would agree with the defendants claim? No. They determined that failure to turn it over was harmless error.
Because the defendant took full advantage of the numerous inconsistencies with respect to the victim’s testimony, any additional attempt to impeach her credibility would have been cumulative.
II. The Court failed to strike testimony that the victim was sexually assaulted.
There was, however, no objection to the questions asked during trial and the Court found that the ruling was not a constitutional evidentiary ruling and therefore did not warrant a Golding analysis.
We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.
III & IV Prosecutorial Misconduct under Brady
These claims are offshoots of the first – in that the prosecutor was in possession of exculpatory material in the expert’s reports and notes and did not turn them over to the defense. The Court holds that upon review,
we conclude that although the records contain some exculpatory evidence, they do not contain any exculpatory evidence that is material under Brady.
Next up – State v. Orellana. This seems to be a more interesting case than Boyd.
In Orellana, the defendant was convicted of possession with intent to sell, conspiracy to sell and possession within 1500 feet of a public housing project. The facts are as follows:
A police detective, Chute, was contacted by an informant he had worked with once or twice in the past, Jusino. Jusino set up a sting with Chute and contacted the defendant to sell her 350 packets of heroin. The defendant (and a Co-D) were to deliver the drugs in a certain specific car between 5:15 and 5:30 at either one of two locations. Ofcourse, everything happened as she said and the two were arrested.
Defendant raised the following claims:
I. His motion to suppress was improperly denied.
Defendant claimed that all physical evidence seized from his car should be suppressed "as the fruits of unlawful searches and seizures". Applying the clearly erroneous standard, the court ruled that, based on Chute’s prior working relationship with Jusino, they did have probable cause based on information from a reliable informant.
Our Supreme Court has ‘‘consistently held that an informant’s record of providing information that led to arrests and seizures of contraband is sufficient to establish the reliability of the informant.’’ State v. Smith, 257 Conn. 224.
On the basis of the court’s findings concerning the events leading to the search and seizure—the informant’s reliability and basis of knowledge, the police surveillance that corroborated key details about the narcotics delivery related by Jusino as well as the behavior of [Co-D] when police approached the stopped automobile —we have little difficulty in agreeing with the court’s conclusion that the police had probable cause to believe that heroin would be found in the automobile.
II. The trial Court improperly permitted evidence of prior misconduct.
One of the defenses put forth by defense counsel was that the defendant did not know that there was heroin in the car; that he was "an innocent bystander". The counter this, the trial court permitted the state to put on evidence of past dealings between the defendant and Jusino. On appeal, the defendant argued that the "limited" probative value of this evidence was outweighed by it’s prejudicial effect. The Appellate Court disagreed,
We conclude that the court properly determined that the probative value of the evidence outweighed its prejudicial effect. The admission of evidence of a defendant’s prior criminal conduct does raise concerns that a jury might misuse the evidence by considering it as evidence of a defendant’s bad character or criminal tendencies. ‘‘Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct.’’ State v. Ryan, 182 Conn. 335, 338 n.5, (1980).
Here, the court adequately instructed the jury as to the role the evidence was to play in its deliberations. Specifically, the court instructed the jury not to consider the evidence [...] solely as evidence of the defendant’s intent and knowledge.
*This has become a long, long post. I’ll wrap it up by simply asking a question to regular readers. Do any of you even read these summaries? I do them because they help me and I figure someone who is interested would appreciate them too. Whether you do or you don’t, please leave a comment to let me know.
ACOTSOCT Habeas opinion
May 11th
C’mon – keep up with me here. See post below for explanation of acronym in title.
So anyway, Smith v. Comm’r was released today. Petitioner raised claims of ineffective assistance of trial counsel at sentencing, constructive denial of counsel and IA of Habeas counsel.
However, the habeas court had denied certification to appeal, so the first issue was whether that was an abuse of discretion under the Simms standard.
Instead of analyzing only that issue, the Court analyzes the other claims and then comes back to Simms.
U.S. v. Cronic applies to claims of constructive denial of counsel. The Court explained,
In United States v. Cronic, 466 U.S. 648, (1984), the United States Supreme Court recognized a narrow exception to Strickland’s holding. Cronic instructed that a presumption of prejudice applies in certain limited circumstances ‘‘when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate. . . .’’ Id., 659–60.
The court explained that no showing of prejudice is required when counsel is either totally absent or prevented from assisting the accused during a critical stage in the proceeding, when counsel ‘‘entirely fails to subject the prosecution’s case to meaningful adversarial testing’’ and when a defendant is ‘‘denied the right of effective cross-examination.’’
[sidebar: except in Texas, where it's OK for an attorney to sleep during a trial.]
In this case, however, it was odd that constructive denial was pled, because in a prior habeas, effective assistance was found.
Cronic, however, requires that for a presumption of prejudice to apply, the surrounding circumstances must have "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial."
The claim of IA(T)C revolved around the failure to call a forensic scientist that founded a drug addict treatment center. There was evidence adduced at the habeas trial that this scientist was reluctant to get involved and that trial counsel "thought she was crazy" and made the tactical decision not to call her.
Words of death for any Habeas claim: "tactical decision". Almost anything can be a tactical decision and anytime an attorney claims that, proving a Habeas claim gets that much more difficult. True to form, the Court rejects this claim.
The claim of IA(H)C revolved around the failure to raise the previous two claims. The Court decided that since it determined the previous two claims had no merit, Habeas counsel could not have been ineffective.
THEN the Court rules that because there are no viable claims for appeal, the Habeas Court did not abuse it’s discretion in denying certification under Simms.
A Habeas decision! and other Crim opinions
May 11th
SCOTSOCT (I just made this up, but I’m going to use it from now on – it stands for the Supreme Court of the State of Connecticut) and ACOTSOCT (Appellate….) released advance opinions today, some of which are of interest. I will post summaries as soon as I read them, unless of course like last time when I read them and found them utterly useless.
So, if you want to get a head start and beat me to it, here are the opinions. Feel free to post comments telling me how ludicrous my acronyms are.
All links are PDF files.
Proposed crim law related legislation
May 9th
My co-blogger at The Conn. Law Blog has done a fine job today posting legal news, so I won’t rehash any of it. Instead, I was surfing the Legislature’s website and came across some interesting legislation being proposed.
- A while ago, I posted about a proposed law to equate the penalties for crack and cocaine. You can read that bill here.
[This bill
eliminates the disparity in the minimum amount of crack and powder
cocaine that a person must possess to be guilty of selling or
manufacturing, distributing, prescribing, compounding, transporting, or
possessing cocaine with intent to sell. It accomplishes this by
increasing the minimum amount of crack cocaine from one-half gram to
one ounce, the current minimum for powder cocaine.] - H. B. 6885 entitled "An Act concerning the administrative pardons process and the duties of the Board of Pardons and Paroles".
[To revise the eligibility provisions for applicants for administrative pardons, delete the requirement that the chairperson adopt regulations for the administration of the Interstate Parole Compact and make a technical change concerning special parole.] - H.B. 6580 concerning making youthful offender records (which are sealed) available to the Office of the Victim’s Advocate.
[To authorize the Victim Advocate to
pursue appellate relief on behalf of crime victims when any right
afforded to crime victims by the state constitution or the general
statutes has allegedly been violated in any court proceeding, to
authorize the Victim Advocate, within limits, to issue a subpoena in
the course of conducting an investigation and to include the Victim
Advocate among the individuals and agencies that have access to the
records of any youth adjudged a youthful offender.] - H. B. 6871 concerning the juvenile system and the creation of a Commission on Child Protection.
[To eliminate the conflict of interest inherent in the current method of appointing attorneys in certain juvenile matters by establishing a Commission on Child Protection that shall have responsibility for administering a system for the appointment of attorneys in cases in which a child is alleged to be uncared-for, neglected, abused, dependent or in a family with service needs, or is the subject of a petition for termination of parental rights, and to ensure a high quality of legal representation for children and indigent parents in such cases by requiring the commission to establish training, practice and caseload standards.] - S. B. 1280 requiring notification of the Office of Victim Services when the DOC releases an inmate. Is this really necessary?
- H. B. 6901 is the bill that punishes adults for providing alcohol to minors, something that I wrote about here.
- S. B. 516 entitled "An Act concerning the penalty for cruelty to persons". Sounds more dramatic than it is.
[To ensure that a person who abuses another person who is elderly, blind, disabled or mentally retarded receives appropriate punishment.] - S. B. 892 regarding eliminating statutory rape between minors within a few years of each other. This seems to be the granddaddy today, so I’ll give it a separate post.
- H. B. 6722 – the cell phone in cars bill.
- S. B. 975 – concerning the penalty for violation of a restraining order – making it a D felony instead of the current A misdemeanor.
Whew, that’s a lot to keep track of.
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