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Criminal Law & Procedure

Habeas Supreme Court Opinions

   by Townsend, Karen

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3531

SC20137 - Henning v. Commissioner of Correction (Two habeas petitions; first petition dismissed with prejudice on the basis of petitioner’s purported refusal to appear at trial; “The second habeas petition, which is the subject of this appeal, alleges, among other things, that the state deprived the petitioner of his due process right to a fair trial in violation of Brady v. Maryland, 373 U.S. 83, 87, which require the state to correct any testimony by a state’s witness when the state knew or should have known that that testimony was materially false or misleading. More specifically, the petitioner claims that his right to due process was violated by virtue of the state’s failure to correct the trial testimony of the then director of the state police forensic laboratory, Henry C. Lee, that a red substance on a towel found in the victim’s home had tested positive for blood when, in fact, no such test had been conducted, and, further, a test of the substance conducted in connection with the present case proved negative for blood. The habeas court, Sferrazza, J., rejected all of the petitioner’s claims, including his claim concerning Lee’s testimony about the towel, and this appeal followed. We agree with the petitioner that, contrary to the determination of the habeas court, he is entitled to a new trial due to the state’s failure to alert the trial court and the petitioner that Lee’s testimony was incorrect, and, therefore, we reverse the judgment of the habeas court.”)

SC20139 - Henning v. State ("In a separate opinion issued today, we have concluded, contrary to the determination of the habeas court, that the petitioner is entitled to a writ of habeas corpus granting him a new trial because the state deprived him of a fair trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny by failing to correct certain incorrect trial testimony of the then director of the state police forensic laboratory, Henry C. Lee. See Henning v. Commissioner of Correction, 331 Conn. ___, ___, ___ A.3d ___ (2019). Because our opinion in that case awarding the petitioner a new trial renders moot the petitioner's appeal from the denial of his petition for a new trial, we must dismiss the present appeal. See, e.g., State v. Boyle, 287 Conn. 478, 486–87, 949 A.2d 460 (2008) (appeal is moot, and therefore must be dismissed, when, because of events occurring during pendency of appeal, appellate court cannot afford any practical relief to appellant).

The appeal is dismissed.
In this opinion the other justices concurred.")

SC20136 - Birch v. Commissioner of Correction (Conviction of felony murder and conviction affirmed in appeal; two habeas petitions- first denied; “The second petition, which is the subject of this appeal, alleged, among other things, that the state deprived the petitioner of a fair trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, which require the state to correct any testimony that it knows or should know is materially false or misleading. More specifically, the petitioner claims that his right to due process was violated because the assistant state’s attorney (prosecutor) failed to correct certain testimony of the then director of the state police forensic laboratory, Henry C. Lee, concerning a red substance on a towel found in the victim’s home that, according to Lee, had tested positive for blood. In fact, no such test had been conducted, and, moreover, a test of the substance that was done for purposes of the present case proved negative for blood. The habeas court, Sferrazza, J., rejected all of the petitioner’s claims, including his claim with respect to Lee’s testimony about the towel, and this appeal followed. Because we agree with the petitioner that, contrary to the conclusion of the habeas court, he is entitled to a new trial due to the state’s failure to alert the trial court and the petitioner that Lee’s testimony was incorrect, we reverse the judgment of the habeas court.”)

SC20138 - Birch v. State ("In a separate opinion issued today, we have concluded, contrary to the determination of the habeas court, that the petitioner is entitled to a writ of habeas corpus granting him a new trial because the state deprived him of a fair trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny by failing to correct certain incorrect trial testimony of the then director of the state police forensic laboratory, Henry C. Lee. See Birch v. Commissioner of Correction, 331 Conn. ___, ___, ___ A.3d ___ (2019). Because our opinion in that case awarding the petitioner a new trial renders moot the petitioner's appeal from the denial of his petition for a new trial, we must dismiss the present appeal. See, e.g., State v. Boyle, 287 Conn. 478, 486–87, 949 A.2d 460 (2008) (appeal is moot, and therefore must be dismissed, when, because of intervening events during pendency of appeal, appellate court cannot afford appellant any practical relief).

The appeal is dismissed.
In this opinion the other justices concurred.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3527

AC41515 - State v. Abdus-Sabur (Murder; criminal possession of firearm; sufficiency of evidence; "The defendant, Ismail H. Abdus-Sabur, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims on appeal that (1) there was insufficient evidence to prove beyond a reasonable doubt that he possessed the specific intent to kill, as required for the crime of murder, (2) the trial court improperly denied his request for a third-party culpability instruction, and (3) that the court improperly admitted evidence of his gang affiliation. We disagree and, accordingly, affirm the judgment of the trial court.")

AC41111 - State v. Crespo (Violation of probation; "The defendant, Anthony Crespo, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court improperly overruled an objection predicated on the right to confront adverse witnesses without making the requisite finding of good cause, (2) the court improperly denied his motion to dismiss due to the imposition of allegedly inconsistent conditions of probation, (3) the court improperly failed to conduct an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (4) the court abused its discretion in denying his motion for judicial disqualification and (5) the evidence was insufficient to sustain the court's finding that the defendant violated a condition of his probation. We affirm the judgment of the trial court.")

AC41780 - State v. Thompson (Conspiracy to commit robbery in first degree; robbery in first degree; kidnapping in first degree; "The defendant, Earl V. Thompson, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. In this appeal, the defendant claims that the trial court improperly concluded that it lacked subject matter jurisdiction to consider his motion. We conclude that, in the motion to correct considered by the trial court, the defendant challenged only the validity of his conviction and not his sentence or the sentencing proceeding, and, therefore, the court properly determined that it lacked subject matter jurisdiction. Accordingly, we affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3517

AC39195 - State v. Nalewajk (Possession of narcotics with intent to sell by person who is not drug-dependent; failure to appear in first degree; motion to correct illegal sentence; mootness; "This opinion follows oral argument on this court's own motion to determine whether the present appeal should be dismissed as moot because the defendant, Albert Edward Nalewajk, died during the pendency of his appeal from the dismissal of his motion to correct an illegal sentence. We conclude that we lack subject matter jurisdiction and, accordingly, dismiss the appeal.")

AC39193, AC39194, AC39196, AC39198, AC39199 - State v. Sanchez (Sale of narcotics by person who is not drug-dependent; possession of narcotics with intent to sell by person who is not drug-dependent; "These appeals all stem from the same legal root with factual differences not pertinent to the common legal issues they present. In each case, the defendant was convicted, following a plea of guilty, of, inter alia, sale of narcotics and/or possession of narcotics with the intent to sell by a person who is not drug-dependent, in violation of General Statutes (Rev. to 2013) § 21a-278 (b), and was sentenced to a term of incarceration that included the statutorily mandated minimum sentence of five years. In each instance, the court made no finding, nor did the defendant admit, that he was not drug-dependent. Each defendant subsequently filed a motion to correct an illegal sentence, alleging, in essence, that his sentence was illegal because, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), the state was required to plead and prove his lack of drug dependency beyond a reasonable doubt given that it is a fact that would result in a mandatory minimum sentence that would expose the defendant to a higher maximum sentence. The trial court dismissed each motion for lack of subject matter jurisdiction, and the defendants appealed to this court. We conclude that, in light of our Supreme Court's recent decision in State v. Evans, 329 Conn. 770, 189 A.3d 1184 (2018), cert. denied, ___ U.S. ___, 139 S. Ct. 1304, ___ L. Ed. 2d ___ (2019), the defendants' motions to correct no longer present colorable claims of an illegal sentence, and, accordingly, we affirm the trial court's dismissals of their motions.")

AC39704 - State v. Ramon A. G. (Assault in third degree; criminal violation of protective order; "The defendant, Ramon A. G., appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 and criminal violation of a protective order in violation of General Statutes § 53a-223 (a). On appeal, the defendant claims that (1) the trial court improperly declined to furnish a jury instruction on the defense of personal property with respect to the assault charge and (2) prosecutorial impropriety during closing argument deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.")



Criminal Law Appellate Court Opinions

   by Roy, Christopher

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3510

AC40650 - State v. Dojnia ("The defendant, Jodi M. Dojnia, appeals from the judgment of conviction, rendered following a jury trial, of assault of a disabled person in the second degree in violation of General Statutes § 53a-60b (a) (1). The defendant claims that (1) § 53a-60b (a) (1) is unconstitutionally vague as applied to her conduct, (2) the evidence did not support a finding that the victim was physically disabled, and (3) prosecutorial impropriety during closing argument deprived her of a fair trial. We affirm the judgment of the trial court.")

AC39379, AC40796 - State v. Marcus H. ("The defendant, Marcus H., appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d, two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63, reckless driving in violation of General Statutes § 14-222, operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1), operating a motor vehicle with an elevated blood alcohol content in violation of General Statutes § 14-227a (a) (2), interfering with an officer in violation of General Statutes § 53a-167a, and increasing speed in an attempt to escape or elude a police officer in violation of General Statutes § 14-223 (b).The defendant claims on appeal that the court improperly (1) violated his constitutional right to counsel by denying his application for the appointment of a public defender and (2) violated his constitutional right to due process when it did not order, sua sponte, a judicial marshal to remove his leg shackles during the trial. We are not persuaded by the defendant's claims and, accordingly, affirm the judgment of conviction.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3480

SC20127 - State v. Owen (Nolle prosequi; strangulation second degree; assault second degree; unlawful restraint second degree; threatening second degree; interfering with emergency call; "The issue presented in this appeal is whether the trial court properly determined that the prosecutor did not abuse her discretion in a manner clearly contrary to manifest public interest when she entered a nolle prosequi on the basis that the state's material witness had become disabled for purposes of General Statutes § 54-56b. The defendant, Ricky Owen, appeals from the decision of the trial court allowing the prosecutor to enter a nolle prosequi over his objection and denying his motion to dismiss the charges. The defendant argues that the prosecutor's basis for entering the nolle—namely, that her key witness was "disabled" because her fear prevented her from being able to testify—was insufficient as a matter of law to establish that the witness was disabled for purposes of § 54-56b. The defendant therefore contends that the trial court improperly relied on its finding—that the witness was disabled for purposes of § 54-56b—to deny his motion to dismiss and to allow the nolle to enter over his objection. The state responds that the defendant's claim mischaracterizes the representations of the prosecutor at the time that the nolle entered. According to the state, rather than simply claiming that the witness was afraid to testify, the prosecutor represented to the court that the witness was disabled due to her compromised mental state—and that her statements of fear, among other things, demonstrated that compromised mental state. We agree with the state's characterization of the prosecutor's representations to the trial court. Our review of the record also reveals that, contrary to the defendant's claim on appeal, the trial court made no finding that the witness was—or was not—disabled. Instead, the court properly grounded its ruling on its finding that, in entering the nolle, the prosecutor had not abused her discretion in a manner clearly contrary to manifest public interest. Accordingly, we affirm the decision of the trial court.")

AC40073 - State v. Riley (Murder; "The defendant, Ackeem Riley, appeals from the judgment of the trial court resentencing him following the decision of our Supreme Court, which reversed the judgment of this court and remanded the case to this court with direction to reverse the judgment of the trial court with respect to the defendant's original sentence and to remand the case to the trial court for a new sentencing proceeding. See State v. Riley, 315 Conn. 637, 663, 110 A.3d 1205 (2015), cert. denied, ___ U.S. ___, 136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016). The defendant claims that the trial court (1) failed to disqualify itself from presiding over the resentencing proceeding, and (2) violated the rescript of Riley, ignored important constitutional principles, and failed to comply with applicable mandatory statutory requirements when it resentenced him to seventy years of incarceration. We disagree and, accordingly, affirm the judgment of the trial court.")

AC39394 - State v. Irizarry (Assault in second degree; breach of peace in second degree; "The defendant, Felix A. Irizarry, appeals from the judgment of conviction, rendered against him following a jury trial on one count each of assault in the second degree in violation of General Statutes § 53a-60 (a) (1) and (2), and one count each of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1) and (2). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of second degree assault in violation of § 53a-60 (a) (1), and (2) prosecutorial improprieties during closing argument resulted in the violation of his right to a fair trial. We disagree and, accordingly, affirm the judgment of the trial court.")


Criminal Law Supreme Court Opinions

   by Roy, Christopher

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3474

SC19785 - State v. Guerrara ("It is the policy and practice of the Department of Correction (department) to automatically record the telephone calls and noncontact visits of all inmates, each of whom is given prior notice that such calls and visits are being recorded. The recordings are made for a variety of reasons related to prison safety and administration, and not as part of any investigation into the crimes with which the various inmates have been charged. From time to time, however, the department, upon express request of the state's attorney responsible for prosecuting a particular criminal case, will review some but not all of the calls and visits of those inmates who have been charged in that case. Because the department is acting as an investigative arm of the state in conducting that review, the calls and visits reviewed at the state's attorney's behest are part of the state's investigation into the case such that, like all other material and information gathered or developed as part of the investigation, those calls and visits are subject to the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The sole issue presented by this appeal is whether the inmates charged in such a case, some of whose calls and visits have been reviewed by the department, are entitled, under Brady, to a review of all of those calls and visits even though the department has limited its review to only some of the recorded conversations. We conclude that no such review is required under the facts and circumstances of the present case.")

SC19905 - State v. McCoy ("In this appeal, the defendant, Kenneth Lee McCoy, challenges the judgment of the Appellate Court affirming the judgment of conviction rendered after a jury trial of one count of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant contends that the Appellate Court improperly concluded that (1) he was not deprived of a fair trial due to prosecutorial improprieties, and (2) the trial court properly denied his motion for a new trial for lack of jurisdiction. We disagree but conclude that the form of the trial court's judgment is improper in that the trial court should have dismissed rather than denied the motion for a new trial. Accordingly, we reverse in part the judgment of the Appellate Court and remand the case to that court with direction to render judgment consistent with this opinion.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3437

AC41550 - State v. Mukhtaar (Murder; motion to correct illegal sentence; "The self-represented defendant, Abdul Mukhtaar, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. On appeal, he argues that the court improperly dismissed this motion. We disagree and, accordingly, affirm the judgment of the trial court.")

AC40032 - State v. Euclides L. (Risk of injury to child; "The defendant, Euclides L., appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that the trial court violated his constitutional rights by failing to instruct the jury that it should acquit the defendant if it concluded that his use of force in caring for his daughter, V, was an accident. We disagree and, accordingly, affirm the judgment of the trial court.")

AC41167 - State v. Grasso (Manslaughter in first degree with firearm; "The defendant, Angela C. Grasso, appeals from the judgment of conviction, rendered following a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. The defendant claims that (1) the state failed to disprove beyond a reasonable doubt that she had acted in self-defense and (2) the trial court violated her rights to due process and to the effective assistance of counsel by denying the jury's request to rehear the closing arguments of the prosecutor and defense counsel at trial. We affirm the judgment of the trial court.")


Criminal Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3431

SC19980 - State v. Purcell ("In Davis v. United States, 512 U.S. 452, 459–60, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), the United States Supreme Court determined that, after a defendant has been informed of his Miranda rights, the police officers conducting a custodial interrogation have no obligation to stop and clarify an ambiguous invocation by the defendant of his right to have counsel present. Instead, they must cease interrogation only upon an objectively unambiguous, unequivocal invocation of that right. See id. The court recognized that this standard "might disadvantage some suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present." Id., 460.

This certified appeal requires us to decide whether the Davis standard was met in this case, and, if not, whether a more protective prophylactic rule is required under the Connecticut constitution. The defendant, Robert John Purcell, appeals from the Appellate Court's judgment affirming his conviction of three counts of risk of injury to a child in violation of General Statutes § 53-21. We conclude that the defendant's statements during interrogation did not meet Davis' "clear and unequivocal" standard so as to require suppression of subsequent inculpatory statements under the federal constitution. We further conclude, however, that the Connecticut constitution does not condone a rule that could disadvantage the most vulnerable of our citizens. We hold that, to adequately safeguard the right against compelled self-incrimination under article first, § 8, of the Connecticut constitution, police officers are required to clarify an ambiguous request for counsel before they can continue the interrogation. Because no such clarification was elicited in the present case and the failure to do so was harmful, we conclude that the defendant is entitled to a new trial.")


Criminal Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3422

AC41367 - State v. Bischoff (Possession of narcotics; possession of less than four ounces of cannabis-type substance; motion to correct illegal sentence; claim that 2015 amendment of statute applicable to possession of narcotics (§ 21a-279 [a]) applied retroactively and entitled defendant to resentencing on conviction of possession of narcotics; whether this court is bound by precedent from our Supreme Court; "The defendant, Haji Jhmalah Bischoff, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. After reviewing the record and the parties' briefs, we conclude that the defendant's claim is barred by appellate precedent. We further conclude that the form of the judgment is improper, and, accordingly, we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case to the trial court with direction to render judgment denying the defendant's motion.")


Criminal Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3421

SC19960 - State v. Brown (Burglary; larceny; conspiracy; attempt; criminal mischief, criminal trover; possession of burglar tools; motions to suppress; motion to dismiss; "The present case is in large part governed by the recent decision of the United States Supreme Court in Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206, 2217, 2221, 201 L. Ed. 2d 507 (2018), in which the court held that an individual has "a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]" (CSLI), and, therefore, "the [g]overnment must generally obtain a warrant supported by probable cause before acquiring such records." The state appeals from the judgments of dismissal rendered by the trial court after it granted the oral motion of the defendant, Terrance Brown, seeking dismissal of all charges in thirteen separate dockets. The state claims that the trial court improperly granted the defendant's motions to suppress any and all "cellular-telephone-derived location information" obtained by the state as a result of three ex parte orders that had been granted pursuant to General Statutes (Rev. to 2009) § 54-47aa. In their original briefs and arguments to this court, the parties focused primarily on whether the trial court properly granted the defendant's motions on the basis of its conclusion that the state obtained the prospective and historical CSLI in violation of § 54-47aa, and that suppression of the records was the appropriate remedy. Following oral argument, however, this court stayed the appeal pending the decision of the United States Supreme Court in Carpenter and ordered the parties to submit supplemental briefs concerning the relevance of that decision to this appeal. In light of the court's holding in Carpenter, we conclude that, because the state obtained the defendant's historical CSLI solely on the basis of a reasonable and articulable suspicion, rather than on a warrant supported by probable cause, the records were obtained in violation of the defendant's fourth amendment rights. We further conclude that the trial court properly determined that suppression of both the historical and prospective CSLI—which the state concedes it obtained in violation of § 54-47aa—was the appropriate remedy. Finally, we conclude that the trial court properly rejected the state's reliance on the inevitable discovery doctrine. Accordingly, we affirm the judgments of the trial court.")


Criminal Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3418

SC20157 - State v. Davis (Criminal possession of pistol; carrying pistol without permit; conditional plea of nolo contendere; "The sole issue in this appeal is whether, under Navarette v. California, 572 U.S. 393, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014), the trial court properly denied a motion to suppress evidence discovered by the police during the forcible detention of the defendant, Quentine L. Davis, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), on the basis of an anonymous telephone tip regarding "a young man that has a handgun." After the police detained the defendant, they saw him drop an object in a garbage can, a subsequent search of which revealed a handgun. The defendant was arrested and charged with, inter alia, criminal possession of a pistol in violation of General Statutes § 53a-217c and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant moved to suppress the handgun, claiming that the evidence resulting from the search of the garbage can was tainted as the result of his unlawful seizure. Specifically, the defendant claimed that the anonymous tip did not give rise to a reasonable suspicion that he was engaged in, or was about to be engaged in, criminal activity, and, therefore, that his detention violated his right to be free from unreasonable seizures under the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution. The trial court denied the motion to suppress. Thereafter, the defendant entered a conditional plea of nolo contendere to the gun charges pursuant to General Statutes § 54-94a. See also footnote 4 of this opinion. The trial court accepted that plea and rendered a judgment of conviction. This appeal followed. We agree with the defendant's claim that his detention violated his fourth amendment rights under Navarette. Accordingly, we conclude that the trial court improperly denied the motion to suppress and reverse the judgment of the trial court.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3411

SC19885 - State v. Fernando V. (Sexual assault second degree; risk of injury to child; certification from Appellate Court; "This is a certified criminal appeal from an Appellate Court decision reversing a judgment of conviction arising out of allegations by the complainant, B, that her stepfather, the defendant Fernando V., sexually assaulted her repeatedly over a period of years while she was in middle school and high school. The Appellate Court reversed the judgment of conviction on the ground that the trial court improperly precluded the defendant from calling the complainant's longtime boyfriend, P, as a witness regarding his observations of certain aspects of B's behavior that the state's expert witness had testified were common symptoms of child sexual assault. See State v. Fernando V., 170 Conn. App. 44, 68–69, 153 A.3d 701 (2016). The Appellate Court concluded that the improper exclusion of P's testimony was not harmless because the evidence may have helped "to show that B failed to exhibit behaviors often attributed to sexual assault victims," which could have "dissuaded the jury from believing B's story generally . . . ." Id., 68. We affirm the judgment of the Appellate Court.")

AC37826 - State v. Simmons (Assault in first degree; criminal possession of pistol or revolver; carrying pistol without permit; "The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims, in his initial brief, that the prosecutor committed improprieties during closing argument that deprived him of his right to a fair trial, including, among other things, suggesting to the jury that it could consider as substantive evidence a prior statement of Harris that was admitted at trial only for impeachment purposes, in which he identified the defendant as his assailant. We later granted the defendant permission to file a supplemental brief addressing an additional claim of prosecutorial impropriety, namely, whether the defendant's right to due process was violated by the state's failure to disclose to him, prior to trial, certain exculpatory evidence relevant to the veracity of the detective who took a statement from the defendant. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

After oral argument before this court, and on the basis of our review of the record, we ordered the parties, sua sponte, to file additional supplemental briefs addressing an unpreserved claim of error not raised by the parties, namely, "(1) whether the state's agreement not to prosecute George Harris for any future acts of perjury committed while testifying for the state at the defendant's trial constituted plain error because it violates the public policy of this state against immunizing perjured testimony; see General Statutes § 54-47a; see also State v. Giraud, 258 Conn. 631, 634–35, 783 A.2d 1019 (2001); and (2) if so, whether such error was structural error or subject to harmless error analysis." Each party filed a supplemental brief. In its brief, the state conceded that its grant of immunity to Harris was improper. We later asked the parties to submit additional supplemental briefs addressing whether this court should exercise its supervisory authority to reverse the conviction. Because we exercise our supervisory powers to order a new trial for the defendant on the basis of the improper grant of immunity to Harris, we do not reach the merits of the remaining claims raised by the defendant.")


New OLR Report on Drug-Impaired Driving Laws

   by Mazur, Catherine

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3409

The Connecticut Office of Legislative Research has recently published a report on Drug-Impaired Driving Laws. The report discusses Connecticut's current DUI (driving under the influence) laws, how states with legal recreational marijuana have enacted DUID (driving under the influence of drugs) laws, and options for tests or techniques to identify drug-impaired drivers.

For more information on this topic, please see our Law about Driving Under the Influence, Medical Marijuana, and Drug Crimes pages.


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3404

AC41011 - State v. Hutton (Murder; "The defendant, Nirone Hutton, appeals from the judgment of conviction, rendered against him after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims on appeal that the trial court violated his rights under the confrontation clause of the sixth amendment to the United States constitution as articulated in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Specifically, the defendant argues that the court violated his confrontation rights by improperly admitting into evidence a witness' prior videotaped statement to the police in accordance with State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because the witness was functionally unavailable for cross-examination due to his refusal to provide verbal responses to any questions asked by the prosecutor or defense counsel when called to testify before the jury. The defendant further argues that the improper admission of the witness' prior statement did not constitute harmless error because its content significantly undermined his justification defense. We agree with the defendant and, accordingly, reverse the judgment of conviction and remand the matter for a new trial.")

AC40337 - State v. Dawson (Criminal possession of pistol or revolver; "The defendant, Andre Dawson, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence that he was in possession of a pistol or revolver (gun), and (2) he was deprived of a fair trial by the prosecutor's final argument in which the prosecutor allegedly (a) misstated the law of constructive possession and (b) mischaracterized the DNA evidence presented at trial. We affirm the judgment of the trial court.")

AC41291 - State v. Weathers (Murder; criminal possession of pistol or revolver; carrying pistol without permit; "The defendant, Gregory L. Weathers, appeals from the judgment of conviction, rendered after a trial by a three judge court, of murder in violation of General Statutes § 53a-54a (a), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that (1) the trial court's rejection of his affirmative defense of mental disease or defect was not reasonably supported by the evidence and (2) the court erred as a matter of law in deciding an issue without the aid of expert testimony. We disagree and, accordingly, affirm the judgment of the trial court.")

AC40924 - State v. Dunbar (Violation of probation; "The defendant, Timolyn Dunbar, appeals from the judgment of the trial court finding her in violation of her probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court improperly found a violation of probation on the basis of insufficient evidence, (2) her right to due process was violated by the identification procedures used in this case and (3) her right to due process was violated when the court denied her the right to confront an adverse witness. We affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3391

AC41512 - State v. Gonzalez (Home invasion; sexual assault in first degree; risk of injury to child; "The defendant, Jose Diego Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of one count of home invasion in violation of General Statutes § 53a-100aa (a) (1), three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that there was insufficient evidence that he intended to commit sexual assault by force at the time he entered the victim's home. He also claims that the prosecutor's closing argument was improper and (1) deprived him of his right to be heard by counsel during final argument, (2) deprived him of the right to a fair trial, and (3) entitled him to a new trial on the charge of home invasion. We disagree and, therefore, affirm the judgment of the trial court.")

AC40668 - State v. Ruiz (Violation of probation; motion to suppress; claim that trial court improperly denied motion to suppress one-on-one showup identification; "The defendant, Jose Ruiz, appeals from the judgment of the trial court revoking his probation and imposing a sentence of seven and one-half years incarceration, execution suspended after four years, and three years of probation. On appeal, the defendant claims that the trial court (1) improperly denied his motion to suppress the one-on-one showup identification on the ground that the identification procedure was not unnecessarily suggestive, (2) improperly found that he violated his probation, and (3) abused its discretion in revoking his probation. We are not persuaded and, accordingly, affirm the judgment of the trial court.")

AC41385 - State v. Gray-Brown (Felony murder; robbery in first degree; carrying pistol without permit; "The defendant, Dovante Gray-Brown, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims on appeal that (1) the trial court improperly denied his motion to suppress several items of evidence taken from his bedroom because his mother lacked authority to consent to a search of his bedroom, (2) the court abused its discretion by admitting those same items into evidence because they were not relevant and were more prejudicial than probative, (3) there was insufficient evidence to prove, as required for the crime of carrying a pistol without a permit, that the defendant possessed a firearm that had a gun barrel less than twelve inches in length, (4) the court improperly denied the defendant's request for a third-party culpability instruction, and (5) the court improperly refused to question a juror regarding an issue of juror partiality that was raised after conviction. We agree with the defendant that there was insufficient evidence to prove, as required by § 29-35 (a), that the length of the barrel of the firearm used to commit the crime was less than twelve inches. Accordingly, we reverse the judgment of conviction as to that count with direction to render a judgment of acquittal on the charge of carrying a pistol without a permit. We are not persuaded, however, by the remainder of the defendant's claims and, accordingly, affirm the judgment of conviction in all other respects.")


Criminal Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3378

AC40927 - Mitchell v. State (Petition for new trial; attempt to commit murder; conspiracy to commit murder; kidnapping in first degree; conspiracy to commit kidnapping in first degree; sexual assault in first degree; conspiracy to commit sexual assault in first degree; assault in first degree; conspiracy to commit assault in first degree; criminal possession of firearm; "The petitioner, James A. Mitchell, appeals from the trial court's denial of his request for leave to file a late petition for certification to appeal from the denial of his petition for a new trial. On appeal, the petitioner claims that the court abused its discretion in denying his request because the court, in considering the length of the delay in filing the request, did not consider the reasons for the delay or any other factors relevant to permitting a late filing but, rather, addressed the merits of the petitioner's appeal. We dismiss this appeal.")


Criminal Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3377

SC19788 - State v. Daniel B. (Attempt to commit murder; certification from Appellate Court; sufficiency of evidence; "The present appeal requires us to consider whether, in determining the sufficiency of the evidence to support a conviction for attempt to commit murder under the substantial step provision of General Statutes § 53a-49 (a) (2), the proper inquiry should focus on what the actor had already done or on what the actor had left to do to complete the crime of murder. In the present case, the jury found the defendant, Daniel B., guilty of attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49 (a) (2). Following our grant of certification, the defendant appeals from the judgment of the Appellate Court affirming the judgment of conviction. See State v. Daniel B., 164 Conn. App. 318, 354, 137 A.3d 837 (2016). The defendant claims that, in concluding that the evidence was sufficient, the Appellate Court improperly construed § 53a-49 (a) (2) to require the substantial step inquiry to focus on "what [the actor] has already done," rather than what "remains to be done . . . ." Id., 332. The state responds that the Appellate Court properly held that the focus is on what the actor has already done and that, when considering the defendant's conduct in the present case, the Appellate Court properly concluded that there was sufficient evidence to sustain the defendant's conviction of attempted murder. See id., 333. We conclude that the determination of what conduct constitutes a substantial step under § 53a-49 (a) (2) focuses on what the actor has already done rather than on what the actor has left to do to complete the substantive crime. We therefore affirm the judgment of the Appellate Court.")


Criminal Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3365

SC19947 - State v. Henderson (Motion to correct illegal sentence; sentence enhancement pursuant to statute ([Rev. to 1991] § 53a-40 [a] and [b]); persistent dangerous felony offender; persistent serious felony offender; trial court's denial of defendant's motion to correct illegal sentence; "We granted the defendant’s petition for certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that the defendant’s sentence was not illegal, does not violate the double jeopardy clause [of the United States constitution], and does not run contrary to legislative intent?" State v. Henderson, 326 Conn. 914, 173 A.3d 389 (2017).

After examining the record and briefs on appeal and considering the arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. The Appellate Court’s thorough and well reasoned opinion fully addresses the certified question, and, accordingly, there is no need for us to repeat the discussion contained therein. We therefore adopt the Appellate Court's opinion as the proper statement of the issues and the applicable law concerning those issues. See, e.g., Anderson v. Commissioner of Correction, 308 Conn. 456, 462, 64 A.3d 325 (2013).

The judgment of the Appellate Court is affirmed.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3357

AC39816 - State v. Rivera (Breach of peace in second degree; criminal mischief in third degree; threatening in second degree; "The defendant, Elvin G. Rivera, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1), criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1), and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). On appeal, the defendant claims that (1) the trial court erroneously prohibited him from cross-examining the state's key witness, Stephen Chase, as to the specific acts underlying several misdemeanor convictions rendered against Chase, (2) the court erroneously denied his motion seeking a disclosure and an in camera review of Chase's medical, mental health, and drug and alcohol treatment records, (3) the court committed instructional error, and (4) the state failed to meet its burden to disprove his defense of property and self-defense justification defenses beyond a reasonable doubt. We disagree and, accordingly, affirm the judgment of the trial court.")

AC40443 - State v. Bennett (Felony murder; home invasion; burglary in first degree; "The defendant, Calvin Bennett, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant argues that the court improperly rejected his claim that his sentence for both burglary in the first degree in violation of General Statutes § 53a-101 (a) (3) and home invasion in violation of General Statutes § 53a-100aa (a) (1) violates his constitutional protection against double jeopardy. We affirm the judgment of the trial court.")

AC40468 - State v. Tyson (Violation of probation; "The defendant, DeShawn Tyson, appeals from the judgment of the trial court revoking his probation and sentencing him to nine years of incarceration. See General Statutes § 53a-32. On appeal, the defendant claims that the trial court (1) improperly admitted into evidence details of his prior criminal history, and (2) abused its discretion in concluding that he was no longer amenable to probation and imposing the entire period of incarceration remaining on his underlying sentence. We disagree and, accordingly, affirm the judgment.")


Criminal Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3352

AC41114 - State v. Walker (Aggravated sexual assault in first degree; sexual assault in first degree; kidnapping in first degree with firearm; kidnapping in first degree; threatening; criminal possession of weapon; credit card theft; illegal use of credit card; fraudulent use of automatic teller machine; larceny in sixth degree; "The defendant, Robert L. Walker, appeals from the judgment of the trial court dismissing in part and denying in part his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly (1) dismissed for lack of subject matter jurisdiction his claim that the sentencing court failed to canvass him or his counsel regarding their review and the accuracy of the presentence investigation report, and (2) denied on the merits, without first providing him with an adequate hearing before the sentencing court, his claim that the sentencing court relied on inaccurate facts contained in the presentence investigation report. We conclude that the court lacked subject matter jurisdiction to consider both of the defendant's claims raised by the motion to correct an illegal sentence. Accordingly, we affirm in part and reverse in part the judgment of the trial court.")


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