Category Archives: this month

This month at the supreme court: May 2013

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not an actual judge

not an actual judge

Compared to last month, May 2013 seems like a bit of a snoozefest at the Connecticut supreme court. Not that the cases aren’t important, but they aren’t the sort of blockbusters affecting Fourth Amendment law and the death penalty like last month.

Monday, May 13, 2013 @10:00am: State v. Christopher Shaw [the briefs aren't online yet]. The issue in this case revolves around just what should be admissible under the rape shield statute to prove that the defendant isn’t guilty of a crime and that the complainant has a motive to fabricate the allegations. Usually, a complainant’s past sexual behavior isn’t admissible to show that the defendant didn’t do it, unless it fits one of the exceptions to the statute. There’s also this interesting argument:

Also on appeal, the defendant claims that the trial court improperly admitted, under the excited utterance exception to the hearsay doctrine, testimony from the police officer who responded to the home on the night of the arrest concerning the victim’s mother’s statement that the defendant had raped the victim.

It’ll be interesting to see if an excited utterance can be stretched to apply a statement made by someone other than the complainant not immediately at the time of the crime.

Tuesday, May 14, 2013 @ 10:00am: State v. Richard Taylor [briefs not available yet]. Whether, in order to find someone guilty of conspiracy, the State must have to prove that the parties intentionally engaged in a plan or just knowingly. The Appellate Court has previously upheld the conviction and rejected that argument.

Tuesday, May 14, 2013 @11:00am: State v. Luis Rodriguez [briefs not available yet]. A fascinating case where the victim was given immunity by the State in order to testify and then the victim’s lawyer was called to testify as to the extent of the immunity agreement. The defendant objected on the grounds that the only purpose of the lawyer’s testimony was to show how clueless and sympathetic the victim was, but the Appellate Court said it was okay.

And that’s it!

 

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The guilt by association exception to the Fourth Amendment

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cat_group_pic

now which one-a-youz ates that bone?

Tomorrow at 10:00am, the Connecticut Supreme Court will hear argument in one of the most important cases to come before them in a long time. The case involves the authority of the police to stop and detain individuals just because they happen to be on a public street alongside someone the police might be looking for. In other words, the authority to automatically detain the companion of someone who is a suspect. In fewer words: guilt by association.

The defendant’s brief is here [PDF], the state’s brief is here [PDF] and the reply brief is here [PDF].

First, some setup. The Constitutional provision at play here is the Fourth Amendment, which protects against “unreasonable searches and seizures”. Normally, in order to enter a home or to arrest someone, the police need a warrant based on probable cause. In rare circumstances, a warrantless arrest or seizure can also be made, but it also must be justified by probable cause.

“[A] police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.”

State v. Clark; see also Terry v. Ohio. What that means is that even if an officer is making a brief investigatory stop, he has to be able to articulate a reasonable suspicion as to why he believes that particular person is engaged in criminal activity.

The facts. Got it? Okay. So, in State v. Kelly, police officers were looking for a guy named Gomez. They had the most generic of descriptions of Gomez before they set out that day: 20-22 year old Hispanic male. 5’5-5’7, 130-150lbs, medium complexion and very short hair. Everyone whom that description fits, raise your hands. They wanted to serve a warrant on him for violating his probation. They didn’t know how he had violated his probation or what he was on probation for. Despite their considerable resources, they hadn’t even bothered to look at a photo of Gomez before setting out.

They got a tip from one of their informants that Gomez might reside in the area of Brown Street in Wethersfield. So off they went, with only the most generic of descriptions. They come upon two men, Burgos and Kelly. While Burgos is Hispanic, he apparently had very lengthy hair. Kelly is African-American. So, in no way could Kelly be mistaken for Gomez.

Yet, the two officers decide to stop the two men and displaying their badges, motion for them to come over. [Under Connecticut state law, a broader definition of seizure applies than under the Federal Constitution - meaning we have greater protections. So a person is seized when a reasonable person would not feel free to leave a police encounter. State v. Oquendo.] Burgos asked “what for?” and Kelly said “I live here”. The police continued to order the men to come to them at which point they both took off running. For some reason, the police abandoned their chase of Burgos-who-they-thought-was-Gomez and focused on Kelly. They say him drop a baggie of something and he was eventually apprehended and charged with possession of cocaine.

The argument Kelly raises on appeal is essentially this: if, as described above, the police need particularized and individualized suspicion to infringe on someone’s Fourth Amendment right and the only reason they stopped him was because they were looking for Gomez, then his seizure and detention is in violation of the Constitution. The police admitted during the suppression hearing that they did not suspect Kelly of committing any crime when they stopped him and that they stopped him merely because he was walking next to the guy they thought they were looking for.

The State argues, however, that this violation of a Constitutional right is permitted because of the so-called “automatic companion” rule: that any time the police suspect that a person on the street is someone they are looking for or want to investigate, they have the authority to stop whomever else that person is with, in the name of officer safety.

The Appellate Court likened this situation to the line of motor vehicle stop cases in the United States Supreme Court, which has held that it is Constitutional for an officer to order a passenger out of the car during such a stop. Maryland v. Wilson. SCOTUS has also said it’s okay to detain passengers while the car is searched for contraband pursuant to a warrant. Michigan v. Summers.

Those cases, in my opinion, are quite different:

  • First, SCOTUS has carved out a very specific exception to the Fourth Amendment for motor vehicles due to their distinct nature. The automatic companion rule is not just an extension of the motor vehicle exception, but is another new comparable exception.
  • Second, passengers in a car are different than two people walking on a street. Passengers in a car are, by definition in some sort of companionship relationship together and, more importantly, it is physically impossible to stop a car and detain only one person inside while letting the others go on their way. That is not the case with two people walking on the street. It is far easier for officers to approach one individual – the one for whom they have reasonable and articulable suspicion or probable cause – while asking the others to step aside or go on their way. They are severable in a way that passengers in a car aren’t.
  • Finally, the motor vehicle cases presuppose that the entire car has been legally detained and then say that, once legally seized, to ask a passenger to step outside is a de minimis intrusion that is justified by officer safety. Here, that first step is at issue: is Kelly legally detained to begin with? The answer, of course, is no, unless you adopt the view that you do not need a specific particular individualized reason to stop him as long as he is with someone else whom you do have reason to stop.

The implications of permitting a rule whereby police can stop every person for whom they may or may not have reasonable suspicion and every companion in their immediate radius are frightening. One need only look at the allegations of racial profiling that have landed East Haven in trouble or the trial of the stop and frisk policies of New York City Police to know that permitting wholesale detention and seizure of people on inner city streets based on nothing more than “guilt by association” would result in, well…just look at these stats:

In 2010, New Yorkers were stopped by the police 601,285 times.
518,849 were totally innocent (86 percent).
315,083 were black (54 percent).
189,326 were Latino (33 percent).
54,810 were white (9 percent).
295,902 were aged 14-24 (49 percent).

In 2011, New Yorkers were stopped by the police 685,724 times.
605,328 were totally innocent (88 percent).
350,743 were black (53 percent).
223,740 were Latino (34 percent).
61,805 were white (9 percent).
341,581 were aged 14-24 (51 percent).

In 2012, New Yorkers were stopped by the police 533,042 times
473,300 were totally innocent (89 percent).
286,684 were black (55 percent).
166,212 were Latino (32 percent).
50,615 were white (10 percent).

If you think that’s a NYPD specific problem, look at these Philly PD allegations.

But it’s about more than all of that. It’s about the strength of our rights and the Constitution. Do we want an America where we can walk down the street and talk to whomever we want, without fear of being stopped by the police just because of the person next to us, even if they don’t suspect us of doing anything wrong?

Should we not require that bare minimum? If the police want to stop a person – any person – they should be required to say why they stopped that person that’s not “because he was talking to a drug dealer”? Talking to a dealer isn’t a crime. Our police forces shouldn’t have license to stop anyone they feel like without a suspicion that they are committing or have committed a crime. And, let’s be honest, that standard is absurdly low. Just look at their inept efforts to apprehend “Gomez” and how they bumbled into Burgos and Kelly instead. Was the stop of Burgos legal? How can we permit what happened to Kelly? And if this is permitted, what else will be?

 

This month at the Supreme Court: blockbuster session

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not an actual judge

not an actual judge

I’m reviving a series I briefly dabbled in, back in 2008, called ‘This Month‘, which serves to preview the cases assigned for oral argument in the CT Supreme Court in the upcoming month. I may also include cases of special interest in SCOTUS, depending on whether I’m in the mood. I’ve also added a permanent link to this post in the sidebar, alongside the above picture, so you can find it at any time. The link will be updated every month to the most current ‘this month’ post.

The reason for reviving this is this upcoming April term, in which the court is scheduled to hear at least four cases that can have significant and profound impacts on the state of individual rights in Connecticut: State v. Kelly; State v. Brown, Brown v. Commissioner and State v. Santiago, impacting, in turn, the Fourth, Fifth, Sixth and Eighth Amendments.

The following is the listing of criminal cases scheduled for oral argument in the CT Supreme Court by date.

Monday, April 15 @ 10:00am: State v. Richard Annulli. [Briefs available here.] The defendant was charged with several sex related crimes. During the trial, he wanted to cross-examine the complaining witness to show that she was lying by questioning her about another separate instance in which she allegedly lied to the police in order to get someone else arrested. The trial judge, after hearing what that evidence would be, disagreed with the defendant’s characterization that she “lied” and thus did not permit the defendant to question her about that. The Appellate Court affirmed the conviction and the Supreme Court will review whether his Sixth Amendment right to confront one’s accuser was violated by the trial court. There is also a claim that the evidence was insufficient, but that’s going nowhere.

Tuesday, April 16 @ 10:00am: State v. Jeremy Kelly. The link to the left is to a separate post for this case. I don’t often engage in hyperbole but it is my opinion that this is one of the most important cases the CT Supreme Court will have to deal with for a while (except that other case coming up on April 23). This case involves the ability of the police to seize or detain groups of people when they have a reasonable suspicion to stop only one person out of that group. The implications of permitting such an “automatic companion” rule are staggering, especially for policing in minority neighborhoods, given the dubious “stop and frisk” tactics that are already employed there.

Wednesday, April 17 @ 10:00am: State v. Brown. [Briefs available here.] One of the fundamental concepts of the privilege against self-incrimination is that you have the right to remain silent. The police, pursuant to Miranda v. Arizona, generally advise a suspect of his rights. So, if a person chooses to invoke his rights and remain silent, that fact cannot be used to show that he is guilty. See Doyle v. Ohio. The question in Brown is whether post-arrest silence can be used against the defendant if the defendant first puts on evidence that he was co-operative with police and answered their questions. Has he, in essence, “opened the door” to harmful questioning? Once he does that, can the prosecutor show that when asked by the police how much he (in this case) had to drink, the defendant remained silent? The Appellate Court said yes and the Supreme Court will decide if that important protection of Due Process has an exception of these circumstances.

Interestingly enough, on the very same day, the United States Supreme Court will hear oral argument in Salinas v. Texas, in which the issue to be decided is whether the pre-arrest silence of a suspect can be used to show his guilt. [Greenfield has more here.]

Wednesday, April 17 @ 11:00am: State v. Stephen J.R. [Briefs available here.] The defendant, who was accused of sexually abusing the minor victim on four occasions, was charged with eight counts of sexual assault in the first degree and eight counts of risk of injury. At trial, the victim testified that the defendant abused her on “three or four” occasions and that she was forced to engage in two sexual acts each time. The defendant subsequently was convicted of all sixteen charges. He argues that the victim’s testimony was too vague to support the guilty verdicts on all sixteen charges, as she described generally what happened each time the abuse occurred but did not differentiate between the incidents. In addition, the defendant contends that the trial court, after conducting an in camera review of the records of the department of children and families pertaining to the victim and her family, improperly failed to fully disclose all of the relevant records. Finally, the defendant asserts that the prosecutor, during closing argument, improperly appealed to the emotions of the jury and thereby denied him a fair trial.

Thursday, April 18 @ 10:00am: O’Neil Brown v. Commissioner. [Briefs available here.] A case that will decide the applicability of Padilla v. Kentucky here in Connecticut. Padilla said that it was a lawyer’s responsibility to advise a defendant about any immigration consequences of a guilty plea. While Padilla was an important case for defendants going forward, the question here is whether it applies retroactively to people whose convictions are final and who may be awaiting deportation. While SCOTUS has said no, Chaidez v. US [PDF], they have also said that states are free to provide retroactivity under state law, Danforth v. Minnesota. Further, last year the Connecticut Supreme Court also said too bad you’re shit out of luck to a guy who sought to vacate his 1999 conviction because he was facing deportation in 2010 and no one told him that he could be deported. He relied on CGS 54-1j, but the Court said no, that only provides relief within the first three years. So O’Neil Brown is critical for defendants who may have pled guilty without any knowledge of the negative deportation consequences of that plea.

Monday, April 22 @ 10:00am: State v. Pires. The issue in this case is whether the defendant properly invoked his right to represent himself and whether that right was violated. The Appellate Court said no and the Supreme Court will review that decision.

Monday, April 22 @ 11:00am: State v. Mitchell Henderson. In 1993, the defendant was found guilty of several crimes and due to his extensive criminal record, was also found to be a persistent serious felony offender and a persistent dangerous felony offender, both of which triggered a greater punishment than normal. As a result of this, his sentence was lengthened or “enhanced”. In 2007, our Supreme Court decided that any such “enhancements” must be based on facts that are found by a jury beyond a reasonable doubt, rather than by a judge. So Henderson argued that his enhanced sentence is illegal because the facts weren’t found by a jury. The Appellate Court said no, the 2007 rule doesn’t apply backwards. The Supreme Court will now review.

Tuesday, April 23 @ 10:00am: State v. Eduardo Santiago. [Briefs available here.] This is the other big one this month, which will decide whether the prospective repeal of the death penalty is Constitutional or whether the entire death penalty needs to be scrapped or whether the repeal needs to be repealed. Keep in mind that the hearings on the racial and geographic disparity in the application of the death penalty are still pending.

Wednesday, April 24 @ 10:00am: State v. Milner. Here’s another fascinating case (and the last one of) this term. Milner was placed on probation in 2005. Sometime later, he was charged with a new crime and as a result of that, also charged with violating his probation. He apparently had a hearing on the violation of probation (VOP) first and a judge decided to revoke his probation and sentence him to jail. He appealed that judge’s decision. While that appeal was pending, he pled guilty to one of the new charges that formed the basis for the violation of his probation. He didn’t appeal that conviction (he couldn’t, really, because you typically can’t appeal from a guilty plea), but he did challenge its legality by filing a habeas corpus petition. The Appellate Court held that it wasn’t the same, his conviction was final and so his pending appeal (from the VOP) was moot. The Supreme Court will decide if that’s the case.

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If you have the briefs in any of these cases, please email them to me. If you’re going to see oral argument in any of these cases, please leave a comment with your observations.

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This month at the Supreme Court

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It’s that time again! The docket has been released, so it’s time to preview the upcoming cases at the Connecticut Supreme Court. It’s no wonder that they sent me a notice saying: “Attorney Trumpet [yes, that's my last name], we regret to inform you that yours was one of the many qualified petitions for certification we received and we have only so many openings, so we will be unable to extend you an invitation to speak before us.”

Anyway, on to the good stuff – and believe you me, there is LOTS of that! There are Constitutional challenges to the validity of statutes and the big Courchesne death penalty appeal.

March 12 @ 10:00am – State v. Fernando A: The certified issue is whether the defendant was entitled to an evidentiary hearing on a protective order. Section 54-63c, as amended, provides that such a protective order will remain in effect until the arrested person is presented to the Superior Court for arraignment and that, at the arraignment, “the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order.” On day one, the defendant requested this hearing. The court said it was too busy, so the hearing would be held four days later and issued a protective order. Four days later, another judge said that he had been heard for the purposes of this section and no evidentiary hearing would be held. The defendant also claims that the protective order deprived him of fundamental rights, including the right to occupy his home and the right to the custody and companionship of his children, constitutional guarantees of due process demand that he be afforded an evidentiary hearing concerning the protective order.

March 13 @ 11:00am – State v. Carrasquillo: This is an Eight Amendment challenge to the application of the murder statute to juveniles. The defendant argues that § 46b-127 (a) and General Statutes § 53a-35a (2) violate the cruel and unusual punishment clause because they automatically subject all fourteen and fifteen year old children charged with murder to the mandatory minimum sentence of twenty-five years of incarceration without any consideration of mitigating factors regarding their juvenile status. Relying on Roper v. Simmons, 543 U.S. 551 (2005), he argues that even juveniles who commit serious crimes cannot with reliability be classified among the worst offenders because (1) a lack of maturity and an underdeveloped sense of responsibility are found in juveniles more often than in adults; (2) juveniles are more vulnerable or susceptible to negative influences and outside pressures than adults; and (3) the character of a juvenile is not as well formed as that of an adult. Further, the prosecutor referenced during closing argument, over objection, “evidence” of the defendant’s motive that was not adduced at trial.

March 18 @ all day – State v. Courchesne: Oh boy. Lots and lots of stuff. Whether an unborn child is a “person”. Whether the defendant intended to murder the unborn child. During the trial stage, the trial court ruled that the aggravating factor – killing in an especially depraved, heinous, cruel manner – had to be proven as to both victims. State took an interlocutory appeal. Supreme Court held that it had to prove that as to only one. It also discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous. As a direct result of that decision, the legislature passed Section 1-2z, stating that you have to look at the plain meaning of the language first.

The dp claims are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a “person” and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her? (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant’s motion to impose a life sentence without release where the defendant argues that Connecticut’s capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was “the product of passion, prejudice or any other arbitrary factor”? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense’s being “especially heinous, cruel or depraved” under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?

That should be a fun hearing.

There are two standby cases:

Bryant v. Commissioner: IAC claim on the grounds that trial counsel did not call 4 credible witnesses who would testify that the victim died not of a beating, which was the theory at trial, but of a gunshot wound. Habeas corpus court granted the petition and ordered a new trial. Appellate Court reversed, holding that trial counsel’s decision not to call the witnesses was a tactical decision. Supreme Court will review.

State v. Boyle: An issue that is becoming prevalent nationwide. Defendant was convicted of a DUI and sentenced to probation. Probation moved to modify conditions and wanted to include sex offender evaluation and treatment. This request was based on the probation officer’s discovery that the defendant was convicted of sexual assault in 1997, that he was on the sex offender registry and that a parole board evaluation indicated that his risk of recidivism for sexual assault was high and his level of dangerousness was severe. At the hearing on the motion to modify, the probation officer testified that it is the policy of the office of adult probation to request that a probationer abide by sex offender conditions of probation when the probationer has a prior sexual offense conviction and is still on the sex offender registry. The probation officer further testified that he believed that the added condition of probation was necessary because the use of alcohol was a factor in the sexual assault case. The trial court granted the motion. The Appellate Court reversed, holding that sex offender treatment was not rationally related to the purpose of rehabilitation for a DUI conviction. Supreme Court will reverse review.

This month at the Supreme Court

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359875172_14194d1074_b.jpgStarting…well…today, I am introducing a new feature for my CT friends who are too busy to follow the latest goings on in criminal law in the State. This Month at the Supreme Court! (trademark pending) will summarize the criminal cases scheduled for oral argument with a date and time, if you’re so inclined. Why am I doing this? Because I’m that nice.

So, without further ado (but with a drumroll, please!), here’s the docket for February 2008:

February 5 – Washington v. Commissioner: In Washington, the petitioner seems to challenge the DOC’s retroactive application of those wonderful Harris, Cox and Hunter decisions, which said that jail credit can be applied only once, even though earned on several different sentences. The blurb says there’s a due process claim and I bet it’s got to do with Bouie. Interesting, but not much general appeal.

February 7 – State v. Melendez: This is an interesting one. The state task force and DEA conducted an undercover operation. Part of that was getting an informant suited up with a video cam. The cam caught the informant and Melendez. When the tape was turned over as part of discovery, it was of really poor quality. So Melendez rejected whatever offer was on the table and chose to go to trial. At trial, however, the State engaged in some sorcery and produced a clear copy of the tape. On seeing this enhanced tape, the defendant said that the disclosure was untimely and demanded specific performance of the plea. He claims that the late disclosure deprives him of a meaningful plea bargaining process and that he should be given specific performance, among other evidentiary issues.

February 11 – State v. Griggs: The defendant was charged with assaulting a 77-yr old man that he knew and then leaving him on the floor, struggling, taking the man’s cellphone with him. The claims is whether his failure to help constitutes a substantial step sufficient to convict him of attempt. He sought to have the bill of particulars amended to omit that fact, which the judge denied. Curiously, during jury instruction, the court explained that the defendant’s failure to render assistance to the victim, in and of itself, did not constitute a substantial step planned to culminate in the commission of murder. So, who knows.

February 11 – State v. Simpson: This is a case that implicates the confrontation clause and Crawford. The accuser is a young girl who, at the time of trial, cannot remember any details. State used that to designate her “unavailable” and enter into evidence a videotaped interview with an evaluator at a guidance clinic – for substantive purposes under Whelan. The defendant claims that she had not recanted her earlier statements, her testimony was not inconsistent with her statements (requirements under Whelan), that the videotaped statement was not under circumstances assuring its reliability. He further claims that even if permissible under Whelan, it should be barred under Crawford, because it was made as part of an investigation and since she can’t remember now, she’s unavailable for cross-examination. I’m intrigued by this one.

February 14 – State v. Winer: This is another interesting case. The issue revolves around who requested a continuance that placed the case on a trial list for 3 1/2 years without any action. The trial court found that because the defendant rejected the offer and wanted to go to trial, it was placed there at his request and so it could not be dismissed due to inaction for 13 months (the requirement of the statute). The Appellate Court reversed, finding that it was the prosecutor who wanted it placed on the trial list and so reversed the trial court. The Supreme Court reversed will decide what to do.

February 15 – State v. Jenkins: I guess this is interesting to some. On nine occasions between December, 2002, and May, 2006, the court found that the defendant was not competent but that he was restorable to competency. The defendant received inpatient treatment for three periods that totaled twenty-one months. Subsequently, the defendant moved to dismiss the charges, claiming, among other things, that his twenty-one month placement for treatment exceeded the maximum period that he could be confined because it would exceed the period of the maximum sentence which he could receive on conviction, or eighteen months, whichever is less. The court disagreed, concluding that the period of placement referred to in the statute is not a cumulative period, as the defendant argued, but rather a consecutive period. It is also an interlocutory appeal.

Well, there you go. This has been your guide to the Supreme Court this month!

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