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Criminal Law & Procedure

Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=788

AC39851 - State v. Garcia (Writ of error; bail; "In this writ of error, the plaintiff in error, Afford-A-Bail, Inc. (Afford), claims that the trial court improperly denied its motion to discharge its obligation on a surety bail bond. Afford claims that the court, in denying its motion, improperly concluded that: (1) the standard for demonstrating "good cause" for discharge of an obligation upon a surety bail bond pursuant to Practice Book § 38-23 is the standard first set forth in Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 369–70, 21 L. Ed. 287 (1872), rather than a more holistic, equitable assessment; and (2) the failure of the defendant in error, the state of Connecticut, to extradite the criminal defendant, Jay Garcia, after representing that it would do so, was not relevant to the court's good cause determination. The state argues that the requirement of good cause for discharge of the obligation upon the surety bond pursuant to General Statutes § 54-65c and aspects of the common-law rule in Taylor as explicated in State v. Sheriff, 301 Conn. 617, 21 A.3d 808 (2011), were not satisfied. We conclude that the trial court properly denied Afford's motion to discharge its obligation on the surety bond and, therefore, we dismiss the writ of error.")

AC38166 - State v. Fuller (Conspiracy to steal firearm; conspiracy to commit larceny in fourth degree; conspiracy to commit burglary in third degree; illegal manufacture, distribution, sale, prescription or administration of narcotics by person who is not drug-dependent; illegal manufacture, distribution, sale, prescription or administration of narcotics by person who is not drug-dependent within 1500 feet of public elementary school; conspiracy to commit illegal manufacture, distribution, sale, prescription or administration of narcotics by person who is not drug-dependent; criminal possession of firearm; "The defendant claims on appeal that the trial court, in denying his requests to personally possess a copy of the discovery items disclosed by the state pursuant to Practice Book §§ 40-10 and 40-13A: (1) violated his federal and state constitutional rights to counsel, a fair trial and due process; (2) abused its discretion; and (3) committed structural error. For the reasons set forth herein, we affirm the judgment of the trial court.")

AC37859 - State v. Johnson (Robbery in second degree; conspiracy to commit robbery in second degree; sufficiency of evidence; plain error doctrine; "The defendant, Anthony Johnson, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) (B), and conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 and 53a-135. On appeal, the defendant claims that the jury found him guilty on the basis of uncorroborated accomplice testimony, which, as a matter of law, is insufficient evidence to sustain a conviction. In making this argument, the defendant acknowledges that Supreme Court precedent must be overturned for him to be able to prevail on this claim. The defendant also claims that the trial court improperly failed to caution the jury regarding the dangers of uncorroborated accomplice testimony and improperly admitted a witness' prior inconsistent statement. 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=783

SC19711 - State v. James E. (Risk of injury to child; certification from Appellate Court; "The primary issue that we must resolve in this certified appeal is whether the state presented sufficient evidence from which the jury reasonably could have concluded that the defendant, James E., was guilty of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), when he retrieved and discharged a firearm during a chaotic altercation with another man in the vicinity of his three year old child. The defendant appealed from the judgment rendered in accordance with the jury's guilty verdict to the Appellate Court, which affirmed the judgment of the trial court because, inter alia, there was sufficient evidence to support his conviction of risk of injury to a child based on an uncharged mental health theory of liability. See State v. James E., 154 Conn. App. 795, 798, 112 A.3d 791 (2015). We granted the defendant's petition for certification to appeal, and, on appeal, the state presented an alternative ground for affirmance: "There was sufficient evidence to prove [that] the defendant [was] guilty of risk of injury to a [child] because the defendant wilfully or unlawfully caused or permitted a three year old child to be placed in such a situation that the life or limb of that child was endangered." The defendant opposes this alternative ground, claiming that the state also lacked sufficient evidence to support his conviction under that theory. We agree with the state on the alternative ground presented and, therefore, affirm the judgment of the Appellate Court.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=775

SC19872 - State v. Damato - Kushel (Writ of error; "This case is before us on a writ of error. The plaintiff in error claims that the trial court improperly precluded him, either personally or through his attorney, from attending plea negotiations and other discussions involving the court, the state's attorney and defense counsel during in-chambers, pretrial disposition conferences in the criminal prosecution of Kyle Damato-Kushel, which is now pending in the judicial district of Fairfield. In that criminal case, Damato-Kushel is charged with various offenses arising out of her alleged sexual misconduct involving the plaintiff in error commencing when Damato-Kushel was a teacher's aide in the school system of the town of Stratford and when the plaintiff in error was a fourteen year old student attending a school in that town. The plaintiff in error claims that the trial court's ruling barring his attendance at the pretrial disposition conferences violated his right as a victim "to attend the trial and all other court proceedings the accused has the right to attend" under article first, § 8, of the Connecticut constitution, as amended by articles seventeen and twenty-nine of the amendments (Conn. Const., amend. XXIX [b] [5]). The defendants in error, Damato-Kushel and the Superior Court, judicial district of Fairfield, maintain that the trial court correctly determined that such conferences, when they are conducted in chambers and off the record, do not constitute "court proceedings the accused has the right to attend" within the meaning of amendment XXIX (b) (5) and, therefore, that the court properly precluded the plaintiff in error from attending them. We agree with the defendants in error and, accordingly, dismiss the writ of error.")

AC40390 - State V. Ramos (Murder; sufficiency of evidence; credibility of witnesses; "The defendant, Jose E. Ramos, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction, (2) the court erred in failing to suppress evidence of his post-Miranda silence, (3) the court committed plain error by admitting prior misconduct evidence, and (4) he was deprived of his due process rights as a result of prosecutorial impropriety. We are not persuaded by the defendant's claims on appeal and, accordingly, affirm the judgment of the trial court.")

AC38993 - State v. Petitt (Sale of narcotics; "The defendant, Daryl Petitt, appeals from the judgment of conviction, rendered after a jury trial, of three counts of illegal sale of narcotics in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims the trial court abused its discretion in admitting into evidence crack cocaine from the second and third sales the defendant made to an undercover police officer, who could not authenticate the drugs because he made no distinguishing mark on the contraband. The defendant also claims that the trial court committed plain error by not striking from evidence the crack cocaine from the first sale the defendant made to the officer because the evidence was not first properly authenticated. He seeks reversal of all three counts and a new trial on each of them. We conclude that because the chain of custody was properly established for all three pieces of evidence, the trial court neither abused its discretion nor committed plain error in admitting them into evidence for the jury's consideration. We accordingly affirm the judgment.")

AC38719 - State v. Wade (Sale of narcotics by person who is not drug-dependent; possession of narcotics with intent to sell by person who is not drug-dependent; manslaughter in first degree; "The defendant, Sidney Wade, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the court improperly concluded that his resentencing did not give rise to a double jeopardy violation. We affirm the judgment of the trial court.")



Criminal Law Appellate Court Opinions

   by Zigadto, Janet

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=769

AC37582 - State v. Davis (Accessory to murder; "This case returns to us on remand from our Supreme Court; see State v. Davis, 325 Conn. 918, 163 A.3d 618 (2017); with direction to consider the claim of plain error raised by the defendant, Paul Davis, in light of its decision in State v. McClain, 324 Conn. 802, 155 A.3d 782 (2017). We now consider the defendant's appeal from the judgment of conviction of accessory to murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), in which he claimed that the trial court committed plain error by improperly instructing the jury that it was not necessary for the state to prove that the defendant intended to kill the victim to find him guilty of accessory to murder.

We conclude that the trial court did not instruct the jury that it was not necessary for the state to prove the defendant's intent to kill. Rather, the trial court properly instructed the jury that the state was not required to prove that the defendant intended to kill the specific victim that was killed.

Accordingly, we affirm the judgment of the trial court.")

AC38979 - State v. Fowler (Revocation of probation; "The defendant, Jamarr Fowler, appeals from the judgment of the trial court revoking his probation and imposing a previously suspended three year prison sentence. On appeal, the defendant claims that the trial court improperly (1) found a violation of probation on the basis of insufficient evidence; (2) determined that the Office of Probation had authority to include a probation condition that the defendant must submit to global positioning system (GPS) monitoring; and (3) denied the defendant's motion to dismiss. We affirm the judgment of the trial court.")

AC38916 - State v. Walker (Murder; "This case returns to us on remand from our Supreme Court; see State v. Walker, 325 Conn. 920, 163 A.3d 619 (2017); with direction to consider the claim of plain error raised by the defendant, Joseph Walker. In our previous opinion, we reversed the judgment only with respect to the defendant's conviction of conspiracy to commit robbery in the first degree. State v. Walker, 169 Conn. App. 794, 812, 153 A.3d 38 (2016), remanded for consideration, 325 Conn. 920, 163 A.3d 619 (2017).

We affirmed the judgment in all other respects. Id. As to the defendant's claim that the trial court committed plain error by failing to instruct the jury, sua sponte, on accomplice testimony, we concluded that '[b]ecause the defendant waived his right to raise the present claim of instructional error, he is foreclosed from seeking consideration under the plain error doctrine.' Id., 810–11.

Upon granting the defendant's petition for certification to appeal from our previous decision, the Supreme Court has now directed this court to consider the defendant's claim of plain error in light of State v. McClain, 324 Conn. 802, 155 A.3d 209 (2017), which held that an implied waiver of a claim of instructional error pursuant to State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), does not preclude an evaluation of that claim under the plain error doctrine. State v. McClain, supra, 815. After consideration of the defendant's claim, we conclude that plain error does not exist, and, accordingly, we affirm the judgment.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=760

SC19678 - State v. Urbanowski (Assault second degree; breach of peace second degree; strangulation second degree; threatening second degree; certification from Appellate Court; "After examining the entire record on appeal and considering the briefs and oral arguments of the parties before this court, we have determined that the judgment of the Appellate Court should be affirmed. We do not consider whether the Appellate Court properly concluded that the trial court had abused its discretion in admitting the uncharged misconduct evidence because we agree that any such error would be harmless for the reasons given by the Appellate Court. Because the Appellate Court's well reasoned opinion fully addresses the certified question, it would serve no purpose for us to repeat the discussion contained therein. We therefore adopt the Appellate Court's opinion as the proper statement of the issue of harmlessness and the applicable law concerning that issue. See, e.g., Recall Total Information Management, Inc. v. Federal Ins. Co., 317 Conn. 46, 51, 115 A.3d 458 (2015)

The judgment of the Appellate Court is affirmed.")

AC39878 - State v. Eddie N. C. (Risk of injury to child; sexual assault in first degree; "The defendant, Eddie N. C., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2); three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2); and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant claims that the trial court improperly admitted (1) prior misconduct testimony, (2) statements made by the victim, A, to her mother, treating physicians, and a social worker under the medical diagnosis and treatment exception to the hearsay rule, and (3) opinion evidence regarding the ultimate issue of whether A had been sexually assaulted, which the defendant claims constitutes plain error. We disagree and, accordingly, affirm the judgment of the trial court.")

AC36250 - State v. Bialowas (Manslaughter in second degree; evasion of responsibility in operation of motor vehicle in violation of statute ([Rev. to 2009] § 14-224 [a]); "The defendant was convicted of manslaughter in the second degree in violation of General Statutes § 53a-56 and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes (Rev. to 2009) § 14-224 (a). He was sentenced to twenty years of imprisonment, execution suspended after fifteen years, followed by five years of probation. He appealed, claiming that the trial court committed plain error by failing to instruct the jury that a defendant's reasonable fear of harm from the victim would be a defense to the charge of failing to stop and render assistance under § 14-224 (a). This court affirmed the defendant's conviction, holding that he had waived his challenge to the evasion of responsibility jury instruction under State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2016). See State v. Bialowas, 160 Conn. App. 417, 125 A.3d 642 (2015), remanded, 325 Conn. 917, 163 A.3d 1204 (2017). The defendant filed a petition for certification to the Supreme Court, arguing that this court improperly failed to conduct a plain error review of his claim of error with respect to the evasion of responsibility instruction. While the petition was pending, our Supreme Court released its decision in State v. McClain, 324 Conn. 802, 812, 155 A.3d 209 (2017), holding that a Kitchens waiver does not preclude appellate relief under the plain error doctrine. Thus, the Supreme Court granted the defendant's petition and remanded the matter to this court. State v. Bialowas, 325 Conn. 917, 163 A.3d 1204 (2017). In light of McClain, we review the defendant's claim pursuant to the plain error doctrine and, accordingly, affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=746

AC39621 - State v. Myers (Murder; "It has been long settled in our appellate procedure that an appellant must raise and analyze in his first and principal brief any matters necessary for the determination of his appeal, and cannot do so for the first time in his reply brief. The defendant, Ricardo O. Myers, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court erred in excluding the video interview of a witness who was unavailable to testify. Because the defendant failed to brief any analysis of how the alleged erroneous ruling was harmful, until he filed a reply brief, his claim is unreviewable. Accordingly, we affirm the judgment of the trial court.")



Updated Titles: Connecticut Practice Series

   by Roy, Christopher

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=734

Our law libraries have received updated editions to various Connecticut Practice Series treatises, including Connecticut Unfair Trade Practices, Business Torts and Antitrust, Connecticut Elder Law, Connecticut DUI Law, Connecticut Motions in Limine, and Connecticut Elements of an Action.

Connecticut Motions in Limine has a new discussion on social media evidence. And Connecticut Elder Law includes updated materials on conservators and interventions for individuals with diminished capacity.


Criminal Law Appellate Court Opinions

   by Roy, Christopher

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=739

AC39051 - State v. Sienkiewicz ("The defendant, Pawel Sienkiewicz, appeals from the judgment of the trial court granting the state’s motion to dismiss his petition for a writ of error coram nobis. The defendant claims that the court erred in holding that it did not have jurisdiction to consider the merits of his petition and, therefore, erred in dismissing his petition for a writ of error coram nobis. We affirm the judgment of the trial court.")

AC38017 - State v. Neary ("The defendant, Stephen Neary, appeals from the judgment of the trial court denying his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. On February 7, 2013, pursuant to a plea agreement, the defendant pleaded nolo contendere to the charges of interfering with an officer in violation of General Statutes § 53a-167a, assault of public safety personnel in violation of General Statutes § 53a-167c, and carrying a dangerous weapon in violation of General Statutes § 53-206. The defendant also admitted to violating conditions of a previously imposed probation. See General Statutes § 53a-32. On the same day, the court sentenced the defendant to a total effective sentence of seven years of incarceration, execution suspended after two and one-half years to serve, and two years of conditional discharge.")

AC36790 - State v. Jackson ("This criminal appeal returns to this court following a remand by our Supreme Court. State v. Jackson, 325 Conn. 917, 163 A.3d 617 (2017). On remand, the Supreme Court has directed this court to consider the merits of the claim of the defendant, Troy Jackson, that the trial court committed plain error in failing to provide a special accomplice credibility instruction to the jury. Id. We conclude that the defendant has not met his burden pursuant to the plain error doctrine and, accordingly, affirm the judgment of the trial court.")

AC38571 - State v. Torres ("The defendant, Julio Torres, was convicted of murder in violation of General Statutes § 53a- 54a and was sentenced to fifty years of imprisonment. He appealed, claiming, among other things, that portions of the trial court’s instruction on reasonable doubt constituted plain error. The defendant also claimed that the cumulative effect of these portions of the instruction constituted plain error. This court affirmed the defendant’s conviction, holding that he waived his challenge to the reasonable doubt instruction under State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). See State v. Torres, 168 Conn. App. 611, 627–29, 148 A.3d 238 (2016). The defendant filed a petition for certification to appeal, claiming that this court improperly declined to review the reasonable doubt instruction for plain error. Our Supreme Court granted the petition and remanded the case to this court for consideration of his plain error claim in light of its recent decision in State v. McClain, 324 Conn. 802, 812–15, 155 A.3d 209 (2017), which held that a Kitchens waiver does not preclude appellate relief under the plain error doctrine. State v. Torres, 325 Conn. 919, 163 A.3d 618 (2017). After further review, we affirm the judgment of the trial court")

AC39841 - State v. Gill ("The defendant, Andre Gill, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a and 53a-8; carrying a revolver without a permit in violation of General Statutes § 29-35 (a); false statement in the second degree in violation of General Statutes (Rev. to 2011) § 53a-157b; and tampering with physical evidence in violation of General Statutes §§ 53a-155 and 53a-8. On appeal, the defendant’s sole claim is that there was insufficient evidence to prove the element of specific intent necessary to support the murder conviction. We disagree and, accordingly, affirm the judgment of the trial court.")


Criminal Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=722

AC37912 - State v. Lopez (Operating motor vehicle while under influence of alcohol in violation of statute (§ 14-227a [a] [1]); operating motor vehicle while license suspended; "The defendant, Juan C. Lopez, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a (a) (1) and operating a motor vehicle while his license was suspended in violation of General Statutes § 14-215. On appeal, the defendant claims, among other things, that the trial court improperly (1) restricted his cross-examination of the state's expert witness and (2) admitted an "incomplete and altered" dashboard camera video taken from the arresting officer's patrol car. With respect to the first claim, we agree with the defendant that the court improperly restricted his cross-examination of the expert witness and that that impropriety was harmful. We thus reverse the judgment and remand the case for a new trial.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=705

AC39619State v. Hall-Davis (Murder; conspiracy to commit murder; criminal possession of firearm; "The defendant, Matthew Allen Hall-Davis, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, he argues that the trial court (1) erred by refusing to give the jury an instruction on defense of others, (2) improperly restricted his closing argument, and (3) gave the jury a faulty and misleading instruction on conspiracy. We affirm the judgment of the trial court.")

AC40218State v. Rivera (Motion to correct illegal sentence; "The defendant, Jose Rivera, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. We are asked to determine whether our state constitution affords greater protection to juvenile homicide offenders than that provided under the federal constitution. On appeal, the defendant claims that (1) the court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction, (2) the court erred in dismissing the motion to correct an illegal sentence because the mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole imposed on a juvenile homicide offender is unconstitutional under article first, §§ 8 and 9, of the Connecticut constitution, as it prevented the court from sentencing juveniles to less than twenty-five years of incarceration upon due consideration of the Miller factors and (3) the court committed constitutional error when it accepted the defendant's waiver, through counsel, without a canvass, of his right to a presentence investigation report. We disagree with the defendant and, accordingly, affirm the judgment of the trial court dismissing the motion to correct an illegal sentence.")

AC40213State v. Hathaway (Motion to correct illegal sentence; "The defendant, Robert Hathaway, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that (1) the court erred in dismissing the motion to correct an illegal sentence on the ground that it lacked subject matter jurisdiction, (2) the court erred in dismissing the motion to correct an illegal sentence because the mandatory minimum sentence of twenty-five years of incarceration without the possibility of parole for murder is unconstitutional under article first, §§ 8 and 9, of the state constitution, as applied to juvenile offenders in that it bars courts from sentencing juveniles to less than twenty-five years upon due considerations of the Miller factors, and (3) the court committed constitutional error when it accepted the defendant's waiver, through counsel, of his right to a presentence investigation report. We addressed these precise issues in State v. Rivera, 177 Conn. App. ___, A.3d ___ (2017), also released today, and our resolution of the defendant's appeal is controlled by our decision in that case. We affirm the judgment of the trial court dismissing the motion to correct an illegal sentence.")

AC38193State v. Thomas (Sexual assault in first degree; unlawful restraint in first degree; false statement in second degree; "The defendant, William B. Thomas, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and one count of false statement in the second degree in violation of General Statutes (Rev. to 2011) § 53a-157b (a). On appeal, the defendant claims that (1) the trial court violated his constitutional rights to confrontation and to present a defense by excluding evidence of the victim's prior sexual conduct under General Statutes § 54-86f, commonly known as the rape shield statute; (2) the trial court violated his right to due process by denying his pretrial motion for costs to pay for investigative services necessary to his defense; and (3) the state's closing argument was improper and deprived him of a fair trial. We disagree. Accordingly, we affirm the judgment of the court.")


Criminal Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=703

AC39853State v. Stonick (Larceny in sixth degree; illegal use of credit card; "The defendant, Katherine Lee Stonick, appeals from the judgment of the trial court noting a nolle prosequi to charges then pending against her of larceny in in the sixth degree in violation of General Statutes § 53a-125b and illegal use of a credit card in violation of General Statutes § 53a-128d without ruling on her request that the charges be dismissed the pursuant to General Statutes § 54-56b. The nolled charges against the defendant stemmed from an incident that allegedly occurred on August 17, 2016, in which the defendant, while allegedly out on a date with the complainant, was accused of using the complainant’s debit card, without his knowledge or permission, to purchase a $300 gift card to the restaurant at which they were dining.

The defendant argues, and the state concedes, that the court erred in noting the nolle over the objection of the defendant without ruling on her request for a dismissal of the nolled charges or requiring the state to make certain representations concerning those charges pursuant to § 54-56b. That statute provides that once a defendant objects to the entry of a nolle and demands a dismissal, the state may enter the nolle only ‘‘upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.’’ When the court noted the nolle in the absence of any such representation by the state, it did so in violation of § 54-56b.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion on the defendant’s objection to the state’s nolle and her demand that the nolled charges be dismissed.")


Domestic Violence and Civil Protection Orders Research Guide - 2017 edition

   by Mazur, Catherine

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=698

The 2017 edition of our research guide on Domestic Violence and Civil Protection Orders has been posted to our website. A new section on Civil Protection Orders has been added, in addition to a table on the recent changes to firearms law in relation to domestic violence incidents.


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=690

AC39659 - State v. Taylor (Murder; robbery in first degree; conspiracy to commit robbery in first degree; hindering prosecution; tampering with physical evidence; "The defendant, Solomon Taylor, appeals from the judgment of conviction, rendered after a trial before a three judge court, on charges that included murder, under the Pinkerton doctrine, in violation of General Statutes § 53a-54a (a), robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction for murder, robbery in the first degree and conspiracy to commit robbery in the first degree because the evidence does not support the court's findings that he and his alleged coconspirator committed or conspired to commit robbery, and (2) the court improperly disqualified his first attorney approximately twenty months before the start of his trial. We affirm the judgment of the trial court.")

AC39725 - State v. Redmond (Writ of error; "This case comes before the court on a writ of error brought by the plaintiff in error, Patrick C. Redmond, who is the father of Patrick S. Redmond, the defendant in the underlying criminal proceeding. In his writ of error, Redmond alleges that the trial court improperly (1) ordered the forfeiture of certain seized property pursuant to General Statutes § 54-36a and (2) entered its forfeiture order without providing him notice and an opportunity to be heard in violation of the in rem forfeiture procedures set forth in General Statutes (Rev. to 2013) § 54-33g. For the reasons that follow, we disagree and dismiss the writ of error.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=686

SC19760 - State v. Pelella (Threatening second degree; appeal by state on granting of permission; first amendment to United States constitution; "The defendant, Michael Pelella, was arrested following an altercation with his brother and charged with two counts of threatening in the second degree, one for threatening to commit a crime of violence with intent to terrorize under General Statutes (Rev. to 2013) § 53a-62 (a) (2), and the other for threatening to commit a crime of violence in reckless disregard of the risk of causing terror under General Statutes (Rev. to 2013) § 53a-62 (a) (3). The defendant subsequently filed a motion to dismiss the charges "for lack of sufficient evidence or cause," and the trial court granted the motion and rendered judgment dismissing the charges, concluding that the state would be unable to demonstrate that the statement by the defendant on which the charges were based constituted a "`true threat,'" a form of speech that is not protected by the first amendment to the United States constitution. Thereafter, the trial court granted the state's motion for permission to appeal, and the state now claims that the trial court improperly granted the defendant's motion to dismiss after (1) incorrectly determining that an expression of an intent to cause harm to another cannot constitute a true threat unless the contemplated harm is imminent or immediate, and (2) improperly viewing the evidence before it in the light most favorable to the defendant. We agree with both of these contentions, and, therefore, we also agree that the trial court improperly granted the defendant's motion to dismiss the charges. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to deny the motion to dismiss.")

AC39337 - State v. Liam M. (Assault in second degree with dangerous instrument; disorderly conduct; "The defendant, Liam M., appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree with a dangerous instruement in violation of General Statutes § 53a-60 (a) (2) and disorderly conduct in violation of General Statutes § 53a-182 (a) (1). On appeal, the defendant claims that (1) his conviction for assault in the second degree should be reversed because there was insufficient evidence for the jury to determine that a polyvinyl chloride (PVC) pipe is a dangerous instrument within the meaning of General Statutes § 53a-3 (7), and (2) the trial court erred in denying his motion to suppress incriminating statements that he made to police on the ground that such statements should have been excluded as tainted fruit of an unconstitutional arrest. We agree that the trial court erred in denying the defendant’s motion to suppress, and, accordingly, we reverse the judgment of conviction as to both charged offenses.")

AC38860 - State v. Dayton (Operating motor vehicle while under influence of intoxicating liquor or drugs; failure of defendant to appear at sentencing; "The defendant, Stacey Dayton, appeals from the judgment of conviction, rendered after a plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 1995) § 14-227a. On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss, and (2) accepted his plea when it was not knowingly, intelligently or voluntarily made. The state disagrees with the defendant on the merits of this appeal and also contends that this appeal is subject to dismissal pursuant to the fugitive felon disentitlement doctrine. We disagree that this appeal should be dismissed and agree with the defendant's first claim. Accordingly, we reverse the judgment of the trial court.")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=675

AC38727 - State v. Danovan T. (Risk of injury to child; prosecutorial improprieties; claim that defendant was deprived of due process right to fair trial; "The defendant, Danovan T., appeals from his conviction of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). In this appeal, he argues that his conviction should be reversed because (1) certain improprieties by the prosecutor deprived him of his general due process right to a fair trial and (2) the trial court improperly restricted his right to present impeachment evidence against the state's witnesses, thereby depriving him of his constitutional right to confront the witnesses against him. For the reasons that follow, we reject these arguments and affirm the judgment of the trial court.")

AC38113 - State v. Jeffrey H. (Sexual assault in first degree; "The defendant, Jeffrey H., appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that the trial court (1) abused its discretion by preventing him from pursuing certain inquiries on cross-examination, thereby violating his sixth amendment right to present a defense, and (2) abused its discretion by admitting into evidence out-of-context portions of his interview conducted following a polygraph examination, in violation of his right to due process. We affirm the judgment of the trial court.")

AC38528 - State v. Biggs (Larceny in second degree; conspiracy to commit larceny in second degree; larceny in third degree as accessory; conspiracy to commit larceny in third degree; engaging police in pursuit; "The defendant claims on appeal that the court (1) abused its discretion and violated his right to an impartial jury by failing to conduct an adequate investigation as to a claim of juror misconduct that he brought to its attention on the date originally scheduled for his sentencing and (2) violated his constitutional right against double jeopardy by imposing separate sentences upon him on two counts of conspiracy that were based upon a single conspiratorial agreement. The state disputes the defendant's juror misconduct claim, contending that the court adequately investigated and properly disposed of that claim. It agrees with the defendant, however, that the court violated his right against double jeopardy by imposing separate sentences upon him on two counts of conspiracy that were based upon a single conspiratorial agreement. We agree with the state, and therefore we affirm the trial court's judgment on all charges except for conspiracy to commit larceny in the third degree, and remand this case to the court with direction that the defendant's sentence and resulting conviction on that charge be vacated pursuant to State v. Polanco, 308 Conn. 242, 259–60, 61 A.3d 1084 (2013).")


Criminal Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=665

AC38542 - State v. Boyd (Disorderly conduct; interfering with officer; sufficiency of evidence; "The defendant, Terrence Lamont Boyd, appeals from the judgment of conviction, rendered after a jury trial, of disorderly conduct in violation of General Statutes § 53a-182 (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a).The jury found the defendant not guilty of two counts of threatening in the second degree, each in violation of General Statutes § 53a-62 (a) (2). On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of disorderly conduct and (2) the trial court erred when it provided incomplete or incorrect jury instructions.We disagree and, accordingly, affirm the judgment of the trial court.")

AC39688 - State v. Pugh (Murder; burglary in first degree; "The principal issue in this appeal is whether the trial court improperly admitted into evidence, under the spontaneous utterance exception to the rule against hearsay, statements made by the victim relating to the unexpected presence of her former boyfriend, the defendant Matthew Pugh, whom she feared.The defendant appeals from his conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a (a) and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). On appeal, the defendant claims that the trial court: (1) abused its discretion by admitting into evidence statements made by the victim pursuant to the spontaneous utterance exception to the rule against hearsay; (2) erroneously admitted into evidence testimonial hearsay in violation of his rights under the confrontation clause of the sixth amendment to the federal constitution by permitting a police investigator to testify as to certain witness statements regarding the defendant's claimed whereabouts on the day of the murder; and (3) committed plain error when it did not dismiss, sua sponte, the burglary in the first degree charge, which had been brought beyond the applicable statute of limitations. We affirm the judgment of the trial court.")

AC37726 - State v. Reed (Harassment in second degree; "The defendant, Doraine Reed, appeals from the judgment of conviction, rendered after a jury trial, of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). On appeal, the defendant claims that (1) the evidence was insufficient to support her conviction and (2) the court improperly instructed the jury. We disagree with the defendant that the evidence was insufficient to support her conviction. We agree, however, that the court improperly instructed the jury and that this error was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.")


Criminal Law Supreme and Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=653

SC19350 - State v Fay (Manslaughter second degree with firearm; "In State v. Esposito, 192 Conn. 166, 179–80, 471 A.2d 949 (1984), this court held that, in certain circumstances, the privileged psychiatric records of a witness testifying for the state are subject to in camera review by the trial court so that the court can determine whether the accused's constitutional right of confrontation entitles him to access to those records; if the witness refuses to authorize such review, the witness' testimony generally must be stricken. In the present case, the defendant, William Fay, was charged with murder and, following a jury trial, was convicted of the lesser included offense of manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a. He claims that the trial court improperly declined to extend our holding in Esposito and thereby violated his constitutional right to present a defense when it refused to conduct an in camera review of certain records of the victim protected by the psychiatrist-patient privilege; see General Statutes §§ 52-146d and 52-146e; even though the defendant alleged that those records may contain information pertinent to the defendant's claim of self-defense. Although we agree with the defendant that the psychiatrist-patient privilege may be surmounted when an accused makes a sufficient showing that the privileged information is material to a claim of self-defense, we conclude that the record in the present case is inadequate for our review of the defendant's unpreserved claim of constitutional error under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). We therefore affirm the judgment of the trial court.")

AC37596 - State v. Elmer G. (Sexual assault in second degree; risk of injury to child; criminal violation of restraining order; "The defendant, Elmer G., appeals from the judgment of conviction, after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and three counts of criminal violation of a restraining order in violation of General Statutes § 53a-223b. On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of one of the two counts of sexual assault in the second degree and all three counts of criminal violation of a restraining order and (2) certain prosecutorial improprieties at trial deprived him of his right to a fair trial. We disagree and, accordingly, affirm 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=645

SC19694 - State v. Kelley (Violation of probation; probation revocation; certification from Appellate Court; "In this certified appeal, we address whether a trial court has subject matter jurisdiction over a probation violation charge that is adjudicated after the defendant's probation sentence was originally scheduled to expire. The trial court in the present case found that the defendant, Tyrone Lawrence Kelley, had violated his probation conditions and revoked his probation, but it did so after his probation sentence was originally set to expire. The defendant claimed before the Appellate Court that the trial court lacked subject matter jurisdiction when it decided the violation charge. The Appellate Court disagreed and affirmed the trial court's judgment. State v. Kelley, 164 Conn. App. 232, 242, 244, 137 A.3d 822 (2016). We conclude that the defendant's probation sentence had not expired at the time the trial court decided the violation charge because, pursuant to General Statutes § 53a-31 (b), the running of his sentence had been interrupted while the violation charge was pending. We therefore affirm the judgment of the Appellate Court.")

AC38967 - State v. Megos (Violation of probation; "The defendant, Zane R. Megos, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a¬-32 and imposing a sentence of sixty months incarceration. On appeal, the defendant claims that the trial court: (1) erroneously found that he violated the conditions of his probation, (2) abused its discretion by admitting evidence of prior crimes that he had committed, and (3) abused its discretion by revoking his probation. We affirm the judgment of the trial court. ")

AC39077 - State v. Holmes (Felony murder; home invasion; conspiracy to commit home invasion; criminal possession of pistol or revolver; "The defendant, Evan Jaron Holmes, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (2), and conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 (a) and 53a-100aa. The defendant also appeals from the judgment of conviction, rendered after a trial to the court, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217.

On appeal, the defendant claims that the trial court improperly (1) overruled his objection to the state's use of a peremptory challenge to strike an African-American prospective juror; (2) admitted a tape-recorded statement of a witness pursuant to 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); and (3) permitted the state to cross-examine the defendant regarding his conversation with a police detective at the time of his arrest in violation of his right to remain silent. We are not persuaded by the defendant's claims on appeal and, thus, affirm the judgment of conviction.")

AC38468 - State v. Acampora (Assault of disabled person in third degree; disorderly conduct; "The defendant, Joseph C. Acampora, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of assault of a disabled person in the third degree in violation of General Statutes § 53a-61a and one count of disorderly conduct in violation of General Statutes § 53a-182 (a) (1). The defendant was found not guilty of interfering with an emergency call in violation of General Statutes § 53a-183b. The defendant represented himself at trial. On appeal, the defendant claims that the trial court (1) violated his right to counsel under the sixth and fourteenth amendments to the United States constitution when it permitted him to represent himself without obtaining a valid waiver of his right to counsel and (2) violated his right to present a defense, as guaranteed by the sixth and fourteenth amendments to the United States constitution, when it denied his motion to open the evidence. We affirm the judgment of the trial court.")

AC39287 - State v. Jason B. (Motion to correct illegal sentence; "The defendant, Jason B., appeals from the judgment of the trial court dismissing the defendant's motion to correct an illegal sentence. The court dismissed the motion on the ground that the defendant failed to present a colorable claim that his sentence had been imposed in an illegal manner. The defendant claims this was error. 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=637

AC38633 - State v. Galberth ("The defendant, Shakee S. Galberth, appeals following the trial court’s denial of his motion to dismiss his violation of probation charge. On appeal, the defendant claims that the trial court (1) did not have subject matter jurisdiction over the probation violation proceeding, and (2) improperly denied his motion to dismiss because his probationary period had expired. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.")

AC39098 - State v. Halili ("The defendant, Skender Halili, appeals from the judgment of conviction, following a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a. The defendant claims that the trial court (1) violated his sixth amendment right to confront his accuser when it prohibited him from cross-examining the complainant with respect to her mental state or psychiatric history, (2) violated his sixth amendment right to present a defense and confront his accuser when it prohibited him from presenting evidence purporting to show that the complainant had solicited a bribe from the defendant’s wife, and (3) improperly admitted evidence of the complainant’s demeanor after she made an initial complaint to the police. We agree with the defendant’s second claim. Accordingly, we reverse the judgment of the trial court and remand the case to the court for a new trial.")

AC37956 - State v. Steele ("The defendant, Thomas Steele, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (2). On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to convict him of robbery in the first degree; (2) the trial court abused its discretion and violated his rights under the confrontation clause of the sixth and fourteenth amendments to the United States constitution when it permitted a detective to testify about historic cell site analysis without being qualified as an expert witness; and (3) his cumulative conviction and sentences for conspiracy to commit robbery and conspiracy to commit larceny violate the double jeopardy clause of the fifth and fourteenth amendments to the United States constitution. We agree with the defendant that his cumulative convictions and sentences for conspiracy to commit robbery and conspiracy to commit larceny violate the double jeopardy, but we reject the defendant’s other claims. Accordingly, we reverse the judgment in part and affirm the judgment in part.")


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