161 Conn.App. 850
Conn. App. Ct.2015Background
- Defendant Kenyon Joseph, incarcerated at Corrigan-Radgowski CC, struck the deputy warden with a sharpened toothbrush during an escort on Sept. 10, 2012; charged with assault of a correction officer and possession of a dangerous instrument (the possession count was later nolle prossed).
- Defendant filed a pretrial notice and memorandum seeking to present the common-law affirmative defense of necessity, alleging past assaults, mental illness, dissociative violent episodes, and fear for his safety as reasons he acted to secure transfer.
- Trial court held an April 7, 2014 hearing and denied the defendant’s motion to present evidence of necessity, concluding he had not met the required preliminary showing.
- On April 21, 2014, defendant entered a conditional nolo contendere plea reserving the right to appeal the denial of the necessity-defense motion; court accepted the plea and sentenced him to two years consecutive to his existing sentence.
- Appellate court considered whether the appeal could proceed under Conn. Gen. Stat. § 54-94a (permitting conditional nolo pleas to preserve appeals from denial of motions to suppress or dismiss) or under the limited supervisory-review exception from State v. Revelo; concluded neither applied and reversed and remanded to vacate the conditional plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 54‑94a permits appeal from denial of motion to present necessity defense after a conditional nolo plea | State: § 54‑94a is limited to motions to suppress or dismiss; appeal not authorized | Joseph: his conditional plea reserved right to appeal denial of motion to present necessity defense | Held: § 54‑94a does not apply; it covers only motions to suppress or dismiss and the trial court did not make the required dispositive finding |
| Whether the Revelo supervisory‑power exception permits review despite statutory limits | State: Revelo applies only rarely; facts here do not show good cause | Joseph: Revelo exception should allow review of court’s denial as good‑cause exists | Held: Revelo not satisfied—issue is case‑specific, no constitutional violation shown, and no controlling Appellate Court dictum to correct |
| Whether the trial court erred in refusing to allow a necessity defense at trial (preliminary‑showing standard) | State: defendant failed to meet burden to make a sufficient offer of proof on necessity elements | Joseph: offered facts (prior assaults, mental illness, imminent fear) sufficient to warrant submission | Held: Court did not decide the merits of necessity standard; declined to review merits because appeal could not proceed under § 54‑94a or Revelo |
| Remedy when conditional nolo plea preserves an appeal the law does not permit | State: asks to affirm conviction | Joseph: asks to proceed with appeal on denied motion | Held: Because the plea was conditionally accepted based on an appeal right that cannot be vindicated, the conditional plea must be vacated; judgment reversed and case remanded for further proceedings |
Key Cases Cited
- State v. Revelo, 256 Conn. 494 (2001) (recognizes narrow supervisory‑review exception when good cause exists to consider issues outside § 54‑94a)
- State v. Person, 236 Conn. 342 (1996) (affirmative defenses require proof by preponderance; instruction warranted only if sufficient evidence exists for a rational juror to find elements by preponderance)
- State v. Drummy, 18 Conn. App. 303 (1989) (necessity is a common‑law affirmative defense and defendant must make an offer of proof on its elements)
- State v. Madera, 198 Conn. 92 (1985) (conditional pleas that preserve impermissible appeal rights should not be accepted)
- State v. Commins, 276 Conn. 503 (2005) (§ 54‑94a construed strictly; limits on conditional pleas to the specified motions)
- State v. Piorkowski, 236 Conn. 388 (1996) (§ 54‑94a does not create appellate subject‑matter jurisdiction and is to be narrowly applied)