STATE OF CONNECTICUT v. ZACHARY JAY ELSON
(SC 18737)
Supreme Court of Connecticut
Argued September 24, 2012—officially released June 3, 2014
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.*
Hubert J.
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Opinion
NORCOTT, J. This certified appeal raises several significant issues concerning the review of unpreserved claims under both State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and our supervisory authority over the administration of justice, in connection with the well established constitutional principle that ‘‘the [a]ugmentation of sentence based on a defendant’s decision to stand on [his or her] right to put the [g]overnment to its proof rather than plead guilty is clearly improper.’’ (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 81, 770 A.2d 908 (2001). The defendant, Zachary Jay Elson, appeals, upon our grant of his petition for certification,1 from the judgment of the Appellate Court affirming the judgment of the trial court, rendered after a jury trial, convicting him of assault in the first degreе in violation of
The record and the Appellate Court opinion set forth the following relevant facts and procedural history. On September 3, 2004, the defendant, who was intoxicated, entered a classroom at Western Connecticut State University and made a romantic overture toward the victim, who was a student working alone on an art project. State v. Elson, supra, 125 Conn. App. 331–33. After the victim rebuffed him, the defendant left the classroom, only to return shortly thereafter, threaten her with a knife and then physically assault her, causing numerous physical injuries to her fingers, right hand, arm and face, some of which required surgical treatment.3 Id., 332–34.
The state subsequently charged the defendant with assault in the first degree in violation of
‘‘Thereafter, the court stated that it would ‘make some introductory remarks before [proceeding] to formal sentencing.’ At that time, the court indicated that it had considered a letter submitted to the court from the defendant’s mother and the statement of the defendant’s father. The court then stated: ‘
‘‘The court discussed the victim’s ‘credible’ trial testimony, noting that ‘[t]here is no reason in my mind to doubt her testimony that the defendant came at her from behind with a knife to her throat.’ The court stated: ‘A person intends the natural consequences of his acts. And the natural consequences of that act is to cause serious physical injury. [The] [d]efendant came аbout six inches away from killing this young woman or completely ruining her life; for that, I suppose, the victim and the defendant should both consider themselves fortunate.
‘‘ ‘As the state correctly points out, the victim was totally blameless. This is not a case in which the victim knew the defendant, provoked the defendant, enticed the defendant or did anything to threaten the defendant. The victim bears no part of the blame for this incident. Despite that, the defendant threatened to rob [the victim] of the prime of her life. He threatened to rob the victim of being a wife, a mother, an adult daughter, a college educated artist or a person with some other promising career. Thus, it is fully appropriate that I take away the defendant’s liberty during the prime of his life.
‘‘ ‘The defendant’s defense was intoxication. There is no question that the defendant had been drinking to an excess on September 3, 2004. But the defendant is responsible for his own actions. He had been through a well-known alcohol rehabilitation program, undoubtedly paid for by his caring parents, and thrown away all the good that this program had done him.
‘‘ ‘On the day in question, the defendant put a . . . knife with a six inch blade in his pants as he walked into [Western Connecticut State University]. Why did he do that?
‘‘ ‘Even if the defendant had drunk to an excess, there must be some deep-seated anger within the defendant that explains this act of rage and violence, which the state aptly points out appears to be part of a pattern. This, in my view, makes the defendant a dangerous person, one from whom the victim, [Western Connecticut State University], and society should be protected.
‘‘ ‘It also points out, incidentally, the dangers of substance abuse. There’s no evidence, I don’t think, that the defendant was using drugs on the day in question, but he does have a history of drug and alcohol abuse and . . . it has long been clear to me that drug and alcohol abuse is not a victimless crime. And today’s sentencing provides graphic evidence of that.
‘‘ ‘Furthermore, intoxication simply does not explain his statement to the police and his testimony in court that this was an accident. Did the accident supposedly occur because of intoxication? I never understood that. But I do know that this was no accident. I do not believe the defendant’s testimony that he just happened to get poked in the leg with his knife, that he just happened to pull the knife out at that time and that [the victim] just happened to turn around at that time. I believe the defendant gave a false explanation to the police, that he testified falsely in court and that he essentially obstructed justice in doing so. And this is an aggravating factor.’
‘‘The court observed that the defendant had committed the crimes at issue while he
‘‘ ‘By committing these crimes while out on bail, the defendant not only committed a crime against the victim but also committed a crime against the court. The defendant broke his word to the court and showed disrespect for the law. The only mitigating factor I can find in this situation is that the defendant at least admitted the bail status violations.6 . . . [I]n due course, it will be entirely up to the judge in Norwalk to decide how to sentence in those cases. . . . [T]he current convictions are separate offenses from the ones in the Norwalk [court] . . . .’ Thereafter, the court sentenced the defendant on each count, imposing a total effective sentence of twenty-five years imprisonment, execution suspended after twenty years, followed by five years of probation with special conditions. The sentencing proceeding concluded without any additional comments by defense counsel.’’ (Emphasis added; footnotes added.) Id., 335–38.
The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia,7 that the trial court ‘‘deprived him of his right to due process when it considered improper factors at the time of sentencing.’’ State v. Elson, 116 Conn. App. 196, 235, 975 A.2d 678 (2009). Specifically, ‘‘[t]he defendant argue[d] that the court improperly considered (1) the fact that he proceeded to trial rather than accepting a plea bargain offered by the state and (2) the knife that was a full exhibit at the trial.’’8 Id. In affirming the judgment of the trial court, the three judge panel of the Appellate
Court that initially heard the defendant’s appeal, Bishop, Harper and Dupont, Js., split three ways in addressing the sentencing claim. Id., 235–36. Judge Harper, authoring the lead opinion for the panel, declined to review the defendant’s sentencing claim, concluding that it was unpreserved and that he had not properly made an ‘‘affirmative request’’ for review in his main briеf under State v. Golding, supra, 213 Conn. 239–40. State v. Elson, supra, 116 Conn. App. 239–40. Judge Dupont concurred in the result, concluding that,
Thereafter, the Appellate Court granted the defendant’s motion for reargument and reconsideration en banc. State v. Elson, supra, 125 Conn. App. 331. The en banc Appellate Court majority concluded that the defendant had not properly made an ‘‘[affirmative] request’’ for Golding review of his unpreserved sentencing claim in his main brief and, therefore, declined to review that claim. Id., 356. In so concluding, the en banc Appellate Court interpreted that requirement to ‘‘eschew the notion that it necessarily includes the use of talismanic words or phrases, such as a citation to the Golding opinion or a recitation of any specific language from that opinion in an analysis of the reviewability of the claim.’’ Id., 353. Rather, relying on our decision in In re Melody L., 290 Conn. 131, 154, 962 A.2d 81 (2009), the Appellate Court determined that ‘‘what is required in making an affirmative request for review, is that a party present an analysis consistent with the principles codified in Golding for the review of unpreserved claims of constitutional magnitude. As a starting point, a party seeking review of such claim must alert the reviewing court to the fact that the claim is unpreserved or that there is a possibility that the reviewing court may determine that the claim is not properly preserved for appellate review. Thereafter, the party must, in its main brief, present an analysis based in law and tailored to the unique circumstances surrounding the claim that, if the reviewing court determines that the claim is not preserved, the claim nevertheless is reviewable on appeal because (1) the record is adequate to review the claim and (2) the claim is of constitutional magnitude, alleging the deprivation of a fundamental constitutional right.’’ (Footnote omitted.) State v. Elson, supra, 125 Conn. App. 354. Further, the Appellate Court overruled its decision in State v. Wright, supra, 114 Conn. App.
The Appellate Court majority then declined to use its supervisory authority over the administration of justice to reach the defendant’s claims, noting that the defendant did not make that request until his reply brief and, therein, only skeletally. Id., 359–60. In dicta, the Appellate Court majority relied on State v. Kelly, supra, 256 Conn. 79–84, and concluded that the ‘‘totality of the circumstances’’ indicated that the trial court had not violated the defendant’s due process rights by penalizing him at sentencing for having elected to stand triаl.9 State v. Elson, supra, 125 Conn. App. 365–66. The Appellate Court’s en banc reconsideration of this case, which again affirmed the judgment of the trial court, resulted in numerous separate opinions, including an opinion concurring in part and dissenting in part issued by Judge Bishop; id., 388; a concurring opinion issued by Judge Robinson; id., 369; and an opinion concurring in part issued by Judge Dupont.10 Id., 378. This certified appeal followed. See footnote 1 of this opinion.
Originally, we granted certification in this appeal solely to consider whether the defendant’s briefing of his unpreserved sentencing claim in the Appellate Court constituted an adequate request for Golding review. See 1 id. Following oral argument, however, we ordered the parties, sua sponte, to submit simultaneous supplemental briefs on the following issues, both of which had been raised in the defendant’s petition for certification, but were not previously granted certification by this court: (1) ‘‘Should the doctrine of State v. Golding, [supra, 213 Conn. 233], apply to an unpreserved claim that a trial judge commented improperly during sentencing on the defendant’s exercise of his constitutional right to a jury trial?’’ and (2) ‘‘Should this court exercise its supervisory powers in the present matter to vacate the defendant’s sentence and remand the case to the trial court for resentencing?’’
For reasons explained in greater detail subsequently in this opinion, we conclude that the defendant’s briefing of his unpreserved sentencing claim in the Appellate Court constituted an adequate request for Golding review, because we overrule the ‘‘affirmative request’’ requirement as articulated in, inter alia, State v. Ramos, supra, 261 Conn. 171.11 We further conclude that
remarks by a trial court on the public’s perception of the procedural fairness of the criminal justice system.
I
CONSTITUTIONAL CLAIMS
We begin with the defendant’s constitutional claims that we originally certified, namely, that: (1) the Appellate Court improperly concluded that his claims were not reviewable under State v. Golding, supra, 213 Conn. 239–40, because he had failed to make the necessary ‘‘affirmative request’’ for such review; and (2) Golding review and relief was necessary because ‘‘the trial court’s consideration of ‘put[ting] the victim through the trial’ infringed on the defendant’s state and federal constitutional rights, and warrants a remand from this court for resentencing.’’
A
Affirmative Request Requirement
With respeсt to reviewability, the defendant contends that the Appellate Court should have reviewed his claim because his briefing demonstrated that the first two prongs of State v. Golding, supra, 213 Conn. 239–40, which pertain to reviewability, had been satisfied. The defendant further contends that the line of cases establishing the ‘‘affirmative request’’ rule, as interpreted by the en banc Appellate Court, ‘‘unduly restrict[s] a defendant’s ability to present legitimate but unpreserved claims of a deprivation of a fundamental constitutional right.’’ He relies on Judge Dupont’s concurrence in the present case, and the Appellate Court’s opinion in State v. Wright, supra, 114 Conn. App. 448, as establishing that the affirmative request requirement has a ‘‘shaky foundation’’ in this court’s case law. He further argues that, consistent with the concurring opinion authored by Justice Palmer in Johnson v. Commissioner of Correction, 288 Conn. 53, 68, 951 A.2d 520 (2008), we should interpret the affirmative request requirement consistently with Wright; see State v. Wright, supra, 463–64; to avoid ‘‘unjust results, and diminish[ing] a defendant’s right to effective appellate review of otherwise fully analyzed claims.’’ Thus, the defendant contends that we should review unpreserved constitutional claims pursuant to Golding, regardless of a brief’s failure to request that level of review by name or by tracking the party’s entitlement thereto, if the requesting party has ‘‘present[ed] a record that is [adequate] for review and affirmatively [demonstrates] that his claim is indeed a violation of a fundamental constitutional right.’’ (Internal quotation marks omitted.) State v. Wright, supra, 463.
In response, the state endorses the en banc Appellate Court’s interpretation of the ‘‘affirmative request’’ requirement as ‘‘embod[ying] long-standing and well settled principles of notice and adequate briefing,’’ and contends that the approach in Wright, advocated by the defendant, is deficient because it does not alert the court of appeal that review of an unpreserved claim is being requested. The
Consideration of the continuing vitality of the affirmative request requirement must begin with a review of what the Appellate Court aptly described as the ‘‘bedrock principle of appellate jurisprudence’’ that this court generally will not review unpreserved claims made for the first time on appeal.’’ State v. Elson, supra, 125 Conn. App. 340–41. Specifically, in State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), this court stated that ‘‘[o]nly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.’’ One of those ‘‘ ‘exceptional circumstances’ ’’ is ‘‘where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.’’ Id., 70.
As this court later recognized, however, the Evans standard lent itself to ‘‘inconsistent application’’ as evidenced by the ‘‘disparate approaches’’ by this court and the Appellate Court to ‘‘the Evans criteria.’’ State v. Golding, supra, 213 Conn. 239. Accordingly, in Golding, this court refined the Evans framework, articulating ‘‘guidelines designed to facilitate a less burdensome, more uniform application of the . . . Evans standard . . . .’’ Id. Specifically, Golding held that ‘‘a defendant
We first alluded to an expansion of the defendant’s burden to demonstrate entitlement to review under Golding in State v. Waz, 240 Conn. 365, 692 A.2d 1217 (1997), which involved an unpreserved state constitutional claim. The state argued thаt this court should decline to review the claim because the defendant made ‘‘no express reference to the guidelines governing our review of unpreserved constitutional claims set forth in State v. Golding [supra, 213 Conn. 239–40].’’ State v. Waz, supra, 371 n.11. Notwithstanding the defendant’s ‘‘failure to invoke our review under the criteria specified in Golding,’’ we reached the merits of the claim, but ‘‘admonish[ed] defendants who seek consideration of unpreserved constitutional claims . . . that they bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding.’’13 Id. Thus, in Waz this court appeared to read the first two prongs of Golding not merely as setting forth uniform rules governing entitlement to review of unpreserved constitutional claims, but also as requiring a defendant specifically to invoke that entitlement in his brief—as opposed to briefing only the merits of the constitutional claim itself—unless, as in Waz, the record otherwise is clear that the defendant is entitled to review of that claim. Subsequent to Waz, this court declined on multiple occasions to reach unpreserved constitutional claims when the appellant expressly failed to seek review under Golding. See, e.g., State v. Andresen, 256 Conn. 313, 323–24, 773 A.2d 328 (2001) (sufficiency of evidence to support conviction for selling unregistered securities); Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000) (claim of state constitutional right to appeal).
Subsequently, in State v. Ramos, supra, 261 Conn. 171, the affirmative request requirement made its appearance for the first time in our case law. In Ramos, we quoted this passage from Waz, namely, that defendants ‘‘bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding’’; (internal quotation marks omitted) id., quoting State v. Waz, supra, 240 Conn. 371 n.11; in support of the proposition that a ‘‘party is obligated . . . affirmatively to request review under’’ either Golding or the plain error doctrine. (Emphasis added.) State v. Ramos, supra, 171. In Ramos, we then declined to review the defendant’s ‘‘claim that the trial court’s [jury] instruction on provocation was defective.’’ Id., 171–72. In support of this decision, we cited Ghant v. Commissioner of Correction, supra, 255 Conn. 17, for the proposition that it is ‘‘inappropriate to engage in [a] level of review not requested,’’ and noted that the defendant had ‘‘requested neither Golding nor plain error review.’’ State v. Ramos, supra, 171–72.
The decisions of this court following Ramos repeatedly used the term ‘‘affirmative request’’ in describing the obligation to invoke Golding review. Although none of those cases ever explained that term specifically, those opinions nevertheless implied that a requesting party was required to cite Golding, or at the very least engage in a threshold layer of briefing demonstrating the party’s entitlement to Golding review. See, e.g., In re Melody L., supra, 290 Conn. 154 (‘‘[T]he respondent does not seek a review under Golding. Her brief makes no mention of, or request for Golding review. Consequently, we decline to review the respondent’s constitutional claims.’’); id. (noting that constitutional claim was inadequately briefed so ‘‘therefore [we] could not address this claim even if Golding review had been sought’’); State v. McKenzie-Adams, 281 Conn. 486, 533 n.23, 915 A.2d 822 (declining to reach unpreserved confrontation clause claim after concluding claim was inadequately briefed because ‘‘the defendant failed to brief his entitlement either to Golding review or to plain error review in his main brief’’), cеrt. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007), overruled on other grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012); Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d 1178 (2005) (stating that court will reach unpreserved constitutional claims if ‘‘party affirmatively requests and adequately briefs his entitlement to Golding review,’’ and declining to reach constitutional claim as inadequately briefed where ‘‘the [defendant] ma[de] only a passing reference to Golding for the first time in his reply brief and fail[ed] to brief his entitlement to Golding review’’); see also Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008) (The court declined to engage in Golding review of unpreserved claims of improprieties by defense counsel during summation because ‘‘the plaintiff’s brief is devoid of legal analysis regarding any of the Golding prongs or plain error review. In fact, the only discussion of Golding or plain error review in the plaintiff’s brief consists of a lone citation, in a footnote, to Golding and to ‘the plain error doctrine.’ In addition, none of the cases that the plaintiff cites relate to either Golding review or plain error review.’’ [Emphasis omitted.]). Numerous other decisions from this court after Ramos also failed to define the phrase ‘‘affirmative request’’ and summarily declined to afford Golding review in the absence of some form of express request by the party seeking review.14 See, e.g., In re Jan Carlos D., 297 Conn. 16, 20 n.10, 997 A.2d 471 (2010); Johnson v. Commissioner of Correction, supra, 288 Conn. 60; State v. Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005).
These decisions reciting the affirmative request requirement make clear the existence of a threshold briefing requirement to establish a party’s entitlement to Golding review. Far less clear, however, is why we apparently imposed such a threshold requirement—in essence adding a fifth prong to Golding. The ‘‘affirmative request’’ requirement might well have been a result of a non sequitur in a single opinion, namely Ramos, taking on a jurisprudential life of its own. This conclusion is borne out by the fact that none of our decisions have ever explained the purpose of requiring a defendant seeking Golding review to brief both his underlying constitutional claim and the adequacy of his request for review of that claim.15 This likely is because requiring parties to undertake an ill-defined, mechanistic layer of threshold briefing to demonstrate their entitlement to review of an unpreserved constitutional claims is fundamentally at odds with the policy goals of Golding, which is a judicially created rule of reviewability designed to balance the twin policy goals of vindicating constitutional rights while ensuring fairness to the parties and the courts alike by safeguarding against the tactical use of
defendant. See State v. Golding, supra, 213 Conn. 239–40.
In our view, Judges Bishop and Dupont, in their separate opinions in this case, best summarized why the additional briefing hurdle for an appellant imposed by the affirmative request requirement does nothing to enhance the notice concerns already addressed by the first two prongs of Golding, namely, ‘‘to prevent unfair surprise and to give the state the opportunity to fully respond to the defendant’s claims.’’ State v. Elson, supra, 125 Conn. App. 388 n.2 (Bishop, J., concurring in part and dissenting in part); see id., 381 (Dupont, J., concurring). Specifically, if a defendant’s main brief properly identifies those portions of the record that form the factual basis for the unpreserved claim and a legal basis for the constitutional nature of that claim, then the opposing party and the reviewing court are more than able to respond to or address that claim as a matter of reviewability. If the defendant’s brief fails to identify the relevant record sections, identify the governing constitutional principles, or apply law to fact in demonstrating the existence of a constitutional violation requiring reversal, then the claim likely will be deemed inadequately briefed and will fail on that ground anyway, regardless of some threshold invocation of Golding review prior to the briefing of the merits. See, e.g., In re Melody L., supra, 290 Conn. 154; accord State v. Golding, supra, 213 Conn. 240–41 (‘‘Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label. . . . For example, once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.’’ [Citations omitted.]).
Further, requiring a defendant to acknowledge expressly that his claim is or may be unpreserved as a precondition to Golding review; see State v. Elson, supra, 125 Conn. App. 358–59; does not add anything to the reviewability calculus. The issue of preservation is often hotly contested. See, e.g., State v. Dalzell, 282 Conn. 709, 718–19, 924 A.2d 809 (2007). When the constitutional claim is one that is especially fact dependent, such as a suppression matter, the failure to preserve the
the issue of the defendant’s mother’s consent never were adduced in the trial court’’). If a reviewing court deems a claim of constitutional dimension to be unpreserved, declining to review that claim for failure of a defendant to either acknowledge that claim’s unpreserved nature or incant the word Golding would represent a triumph of form over substance. Put differently, the affirmative request requirement, which has often caused appellants to adopt a belt and suspenders approach to the briefing of constitutional claims by arguing preservation and affirmatively claiming entitlement to Golding review as a safeguard, has served only to swell briefs with boilerplate and block quotes that are the understandable product of abundant caution by the appellants’ counsel.17
Indeed, beyond expediting the writing of appellate opinions disposing of seemingly specious unpreserved claims on direct appeal, we agree with Judge Dupont that all articulating a fifth threshold prong of Golding accomplishes—particularly when the merits of the underlying claim have been briefed adequately to demonstrate reviewability and potential reversibility under the four prongs of Golding—is sowing grounds for ‘‘future habeas corpus petitions and other cases, both civil and criminal, that allege ineffective assistance of appellate counsel for failure to obtain appellate review of an unpreserved constitutional claim . . . .’’ State v. Elson, supra, 125 Conn. App. 387 (Dupont, J., concurring). This, of course, serves no judicial economy, аs the rapidly written appellate opinion of today is nothing more
Finally, what is most troubling is that the affirmative request requirement has appeared to function as a ‘‘magic words’’ test—notwithstanding, as noted by the Appellate Court, this court’s refusal in a variety of contexts ‘‘to attach talismanic significance to the presence or absence of particular words or phrases.’’ (Internal quotation marks omitted.) State v. Elson, supra, 125 Conn. App. 353; see also, e.g., State v. Robinson, 227 Conn. 711, 731, 631 A.2d 288 (1993) (‘‘[t]he fact that the trial court did not utter the talismanic words that the evidence was ‘more probative than prejudicial’ does not indicate that it did not make such a determination’’). For example, in Johnson v. Commissioner of Correction, supra, 288 Conn. 60, this court declined Golding review for the sole reason that the defendant ‘‘failed to request that we undertake such review’’ or, more to the point, to say some magic word or phrase. Such a rigid approach is irreconcilable with the strong principles of public policy weighing in favor of reviewability that lie at the heart of Golding, and is entirely inconsistent with our body
of case law that values substance over matters of form.18 See id., 68 (Palmer, J., concurring) (addressing merits of constitutional claim, notwithstanding petitioner’s failure to acknowledge its unpreserved nature or ‘‘invoke Golding,’’ because ‘‘arguments and analysis that the [defendant] raised in support of his ex post facto claim are precisely the same arguments and analysis that he would have raised if he had invoked Golding’’).
In this case, the Appellate Court accurately interpreted our body of case law applying the ‘‘affirmative request’’ prerequisite to Golding review to require ‘‘nothing less than an explicit assertion and analysis in a party’s main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude.’’ State v. Elson, supra, 125 Conn. App. 354–55. Nevertheless, we determine that the analysis of public policy and practical considerations underlying the affirmative request requirement set forth in State v. Wright, supra, 114 Conn. App. 463–64, although inconsistent with binding precedent from this court, is better reasoned. Accordingly, we overrule State v. Ramos, supra, 261 Conn. 171, and its progeny to the extent that those cases require a defendant to affirmatively request such review or impart a threshold level of analysis of entitlement to review under Golding.19 We conclude, therefore, that to obtain review of an unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 239–40, а defendant need only raise that claim in his main brief, wherein he must ‘‘present a record that is [adequate] for review and affirmatively [demonstrate] that his claim is indeed a violation of a fundamental constitutional right.’’ (Internal quotation marks omitted.) State v. Wright, supra, 463. Accordingly, the defendant’s failure in his main brief, as stated by the Appellate Court to (1) ‘‘identify or address any issues related to the reviewability of the claim,’’ (2) ‘‘state that any extraordinary level of review is requested,’’ (3) ‘‘refer to the Golding opinion either by name or in substance [or] address the issue of the adequacy of the record to review the claim,’’ or (4) ‘‘present an analysis that, if the claim was not preserved, it nevertheless should be reviewed,’’ did not preclude consideration of his federal constitutional claim, which otherwise was properly briefed, identified relevant constitutional authorities, and was founded on an adequate record for review. State v. Elson, supra, 125 Conn. App. 356; see also State v. Wright, supra, 463–64 (reviewing claim despite failure to mention Golding because ‘‘the defendant has provided a record adequate for review and has sufficiently demonstrated, by discussion of relevant authority, that his claim . . . implicates his sixth amendment right to confront witnesses and his fourteenth amendment due process right to obtain exculpa-
tory evidence’’).
B
Merits of the Defendant’s Constitutional Claim
We now turn to a review of the defendant’s constitutional claim under Golding. Relying heavily on Judge Bishop’s concurring and dissenting opinion; see State v. Elson, supra, 125 Conn. App. 395–96;
We note at the outset that this unpreserved claim is reviewable under the first two prongs of State v. Golding, supra, 213 Conn. 239, because: (1) the record is adequate for review as the trial court’s remarks during sentencing are set forth in the transcripts in their entirety;20 and (2) the claim is of constitutional magnitude, as demonstrated by the defendant’s discussion of relevant authority in his main brief. See, e.g., State v. Kelly, supra, 256 Conn. 80–81 (discussing
Our analysis under the third prong of Golding begins with State v. Kelly, supra, 256 Conn. 79–80, which is our leading decision21 with respect to whether a trial court violates a defendant’s ‘‘federal and state constitutional rights by improperly considering, at the sentencing phase of the proceedings, the defеndant’s decision to proceed to trial.’’22 In Kelly, the defendant challenged the trial
In resolving this claim we noted that, ‘‘[a]s a general matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb a trial court’s sentencing decision only if that discretion clearly has been abused. . . . In spite of that discretion, however, the [a]ugmen-
tation of sentence based on a defendant’s decision to stand on [his or her] right to put the [g]overnment to its proof rather than plead guilty is clearly improper.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 80–81. Reviewing other federal and state courts’ approaches to similar claims, we adopted what we deemed to be the majority view,24 and concluded ‘‘that review of claims that a trial court lengthened a defendant’s sentence as a punishment
Applying this majority view in Kelly, we determined that ‘‘[n]o fair reading of the record would permit the conclusion that the trial court’s comment should be understood to mean that it was lengthening the defendant’s sentence based on his choice to stand trial. Rather, we interpret[ed] the trial court’s remark as a reminder to the defendant of the oft acknowledged truth that many factors favor relative leniency for those who acknowledge their guilt . . . and thus help conserve scarce judicial and prosecutorial resources for those cases that merit the scrutiny afforded by a trial. . . . State v. Coleman, 242 Conn. 523, 544, 700 A.2d 14 (1997). There is a world of difference between that reminder and a clear showing that the defendant received a lengthier sentence because he chose to exercise his right to a jury trial.’’26 (Internal quotation marks omitted.) State v. Kelly, supra, 256 Conn. 84. We then concluded that the ‘‘totality of the circumstances surrounding the defendant’s sentencing gave no indication that the trial court improperly аugmented the defendant’s sentence based on his decision to stand trial. As the trial judge [in Kelly] noted, he gave particular consideration to the age of the victim, the age of the defendant, the lack of closure of the matter for the eleven years preceding the second trial, the fact that the sentence was not influenced by other criminal matters pending against the defendant and, finally, proportionality.’’ Id., 83; accord State v. Fisher, 121 Conn. App. 335, 350–52, 995 A.2d 105 (2010) (applying Kelly totality of circumstances analysis to claim that trial court improperly took defendant’s silence into account, thereby penalizing him for exercise of fifth amendment rights, in dispositional phase of violation of probation proceeding).
Having reviewed the totality of the sentencing record in the present case, we conclude that the defendant has not carried his burden of proving that the trial court penalized him for exercising his constitutional right to a jury trial. First, we note that the length of the sentence that the defendant received must be evaluated relative to the maximum sentence faced by the defendant and the sentence recommended by the state. In this case, the
The lack of vindictiveness evinced in the length of the sentence is supported by the fact that the vast majority of the trial court’s sentencing remarks reflected a detailed focus on ‘‘legitimate sentencing considerations,’’ namely, victim impact evidence; see State v. Coleman, supra, 242 Conn. 546–47; and the defendant’s demeanor, criminal history, presentence investigation report, prospect for rehabilitation and ‘‘general lack of remorse for the crimes’’ of which he has been convicted. State v. Anderson, 212 Conn. 31, 50, 561 A.2d 897 (1989); see also State v. Eric M., 271 Conn. 641, 653–54, 858 A.2d 767 (2004); State v. Barnes, 33 Conn. App. 603, 610, 637 A.2d 398 (1994), aff’d, 232 Conn. 740, 657 A.2d 611 (1995). Indeed, it is significant that, when the trial court made the specific comments at issue, it did so in the context of discounting the mitigating factors, including the defendant’s allocution, statements from a family friend and his father, and a letter from his mother, rather than in its separate recitation of factors that would justify lengthening the defendant’s sentence, including the victim impact evidence, the severity of the defendant’s attack on the victim, the randomness of the attack, the defendant’s dangerousness as reflected by his pattern of violent behavior, which has been exacerbated by his substance abuse problems that have not been treated successfully, his incredible trial testimony, and the fact that he committed the crimes while on pretrial release for other pending felony charges. See State v. Elson, supra, 125 Conn. App. 337–38. Thus, the totality of the circumstances indicates that the trial court’s actions were consistent with the maxim that, ‘‘[a]lthough a court may deny leniency to an accused who . . . elects to exercise a statutory or constitutional right, a court may not penalize an accused for exercising such a right by increasing his or her sentence solely because of that election.’’ State v. Revelo, 256 Conn. 494, 513, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). Accordingly, we conclude that the defendant has not carried his burden of proving, on the basis of the totality of the circumstances, that the trial court augmented his sentence in retaliation for the exercise of his right to stand trial.
II
SUPERVISORY AUTHORITY CLAIMS
We next turn to the dispositive supplemental issue, namely, whether we should
In response, the state contends that we should not exercise our supervisory authority because the defendant failed to request that relief properly in his main brief in the Appellate Court and the record is ambiguous and, therefore, inadequate with respect to whether the trial court actually lengthened the defendant’s sentence because he had elected to stand trial. Citing State v. Lockhart, 298 Conn. 537, 577, 4 A.3d 1176 (2010), State v. Andrews, 248 Conn. 1, 20, 726 A.2d 104 (1999), and State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998), the state further emphasizes that we should invoke our supervisory powers only ‘‘rare[ly]’’ and ‘‘ ‘with great caution’ ’’ when ‘‘traditional protections are inadequate to ensure the fair and just administration of the courts.’’ Positing that the trial court’s comments were constitutionally indistinguishable from those determined not to require reversal in State v. Kelly, supra, 256 Conn. 79–84, the state further emphasizes that the exercise of our supervisory powers is inappropriate because there is no indication of a ‘‘judicial practice or tendency among sentencing courts to improperly comment upon and/or
penalize a defendant‘s exercise of his right to stand trial,” either systemically or with regard to the trial judge in this case. In this vein, the state contends that existing doctrines of extraordinary review, such as Golding and plain error, provide sufficient protection to criminal defendants and that remanding the case for resentencing on this ambiguous record would contravene the usual presumption that the trial court acted correctly. See, e.g., State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987). We, however, agree with the defendant, and utilize our supervisory powers to emphasize that it would be inappropriate for a trial judge to consider, at sentencing, a defendant‘s decision to exercise his right to a trial, including with respect to an assessment of the defendant‘s remorse, given the negative impact such comments are likely to have on the public‘s perception of the criminal justice system. Accordingly, we remand this case to the trial court for a new sentencing proceeding.
A
Scope of This Court‘s Supervisory Powers
“It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice. . . . Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are
We begin with the state‘s arguments with respect to the propriety of the use of our supervisory powers in this case. The state contends that we should not use our supervisory powers to reach the defendant‘s unpreserved sentencing claim because he failed to request this type of review in his main brief before the Appellate Court, doing so only in his reply brief filed in that court. The state correctly observes that, to receive review, a claim must be raised and briefed adequately in a party‘s principal brief, and that the failure to do so constitutes the abandonment of the claim. See, e.g., State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997). The purpose of this rule is to provide the court with “the full benefit of . . . written argument” and to eliminate the unfair surprise to the appellee that would be created were an appellant to be permitted to raise a new claim on appeal in its reply brief. (Internal quotation marks omitted.) State v. Garvin, supra, 312. An appeals court may, however, raise the question of whether to use
We next turn to the state‘s contention that existing constitutional, statutory and procedural rules, including bypass doctrines permitting the review of unpreserved claims such as State v. Golding, supra, 213 Conn. 239–40, and plain error,29 are “generally adequate to protect the rights of the defendant and the integrity of the judicial system“; (internal quotation marks omitted) State v. Lockhart, supra, 298 Conn. 576; thus rendering it unnecessary and inappropriate to utilize our supervisory authority “for the sole purpose of vacating some portion or all of a criminal judgment merely to redress a perceived error in an individual case.” See also State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997) (noting that supervisory authority “is not a form of free-floating justice, untethered to legal principle” [internal quotation marks omitted]). We agree with the state that the supervisory authority of this state‘s appellate courts is not intended to serve as a bypass to the bypass, permitting the review of unpreserved claims of case-specific error—constitutional or not—that are not otherwise amenable to relief under Golding or the plain error doctrine. “Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers.”
B
This Court‘s Supervisory Powers in the Sentencing Context
1
Background
We have previously utilized our supervisory powers to craft procedural rules that protect against the appearance of a judge penalizing a defendant for the exercise of his constitutional rights because “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . .” (Citation omitted.) Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). Most notably, in State v. Coleman, supra, 242 Conn. 541, we refrained from determining, “for state constitutional purposes, as to whether a presumption of vindictiveness attaches where a defendant previously has been sentenced under the terms of a plea agreement and, having successfully challenged his conviction, receives a greater sentence following a trial,”32 but nevertheless utilized our supervisory powers to conclude that “such a defendant should be afforded an explanation, if one is requested, justifying the
In Coleman, we determined that our use of supervisory powers to adopt this rule “dispels these concerns in two important respects. First, it aids in the elimination of even the possibility of retaliation so that the defendant will have no apprehension about exercising the right of appeal. . . . Second, because it is [usually] exceedingly difficult to establish that a judge has retaliated against a defendant for exercising legal rights . . . the rule ensures that there will be an adequate record for appellatе review of a defendant‘s claim of retaliation.”34 (Citations omitted; internal quotation marks omitted.) Id., 541–42.
Similarly, in State v. Revelo, supra, 256 Conn. 503 and n.19, we deemed the presence or appearance of vindictiveness in sentencing to be a matter sufficiently important to justify the use of our supervisory power to reach an issue that was not preserved and, indeed, might well have been waived by the trial court‘s canvass informing the defendant that his appellate rights were limited under
2
Trial Courts’ Commentary during Sentencing
In our view, concerns about the appearance of vindictiveness in sentencing expressed in Coleman and Revelo are not assuaged by the oft-repeated, but difficult to implement, “fine distinction” noted therein between extending lenience to those who plead guilty and penalizing those who exercise their rights to a trial.37 See, e.g., State v. Revelo, supra, 256 Conn. 513–14; State v. Kelly, supra, 256 Conn. 84; State v. Coleman, supra, 242 Conn. 544. Thus, we find persuasive Judge Bishop‘s comprehensive dissenting opinion, which utilizes the appellate courts’ supervisory power to reach the defendant‘s unpreserved claims. State v. Elson, supra, 125 Conn. App. 388–89. In particular, we agree with Judge Bishop that, given our state‘s extremely heavy reliance on plea bargaining in resolving criminal cases;38 see, e.g., State v. D‘Antonio, 274 Conn. 658, 679–80 n.12, 877 A.2d 696 (2005); we “must be particularly vigilant in circumstances in which the right [to a jury trial] may be in peril. One such circumstance may arise at sentencing. One court has commented, ‘courts must not use the sentencing power as a сarrot and stick to clear congested calendars, and they must not create an appearance of such a practice.’ United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948, 93 S. Ct. 1924, 36 L. Ed. 2d 409 (1973).” State v. Elson, supra, 125 Conn. App. 393. Thus, we too observe that, “[w]here disposition by trial is relatively rare, it is even more important to public confidence in our judicial system, if not to due process itself, that the court not take into consideration at sentencing the rare exercise of the right of the defendant to require the state to prove its case at trial.” Id., 393 n.7 (Bishop, J., concurring and dissenting). Accordingly, we conclude, pursuant to our supervisory authority, that a trial judge should not comment negatively on the defendant‘s decision to elect a trial during sentencing, given the appearance of impropriety of that consideration.39
Further, our conclusion, pursuant to our supervisory authority, at sentencing, that trial judges should not comment negatively on a defendant‘s election of a trial supplements the constitutional analysis in State v. Kelly, supra, 256 Conn. 81, wherein this court emphasized that the “[a]ugmentation of sentence based on a defendant‘s decision to stand on [his or her] right to put the [g]overnment to its proof rather than plead guilty is clearly improper.” (Internal quotation marks omitted.) As noted previously,40 in Kelly, we adopted what we deemed to be the majority approach, and concluded “that review of claims that a trial court lengthened a defendant‘s sentence as a punishment for exercising his or her constitutional right to a jury trial should be based on the totality of the circumstances. We further [held] that the burden of proof in such cases rests with the defendant.” Id., 82. In so concluding, we rejected as a constitutional matter a minority view employing a ” ‘per se’ rule requiring a remand for resentencing whenever a colorable claim is raised by a defendant that his sentence was lengthened because of his choice to stand trial.” Id. Our conclusion
3
Application to the Merits of This Case
Relying on Judge Robinson‘s concurrence in this case, the state contends, however, that the record is ambiguous with respect to whether the trial court actually lengthened the defendant‘s sentence as a result of his election of a trial, and that this ambiguity renders it inadequate for review. See State v. Elson, supra, 125 Conn. App. 375–77. We disagree. The record in this case is perfectly adequate for review in that the transcript of the sentencing proceeding tells us verbatim what happened in the trial court; the only question or ambiguity remaining concerns the possible inferences to be drawn from the trial court‘s comments therein.42 Put differently, finding this particular record inadequate for review of this claim would mean that, absent the extremely unlikely admission by a trial judge that he or she is lengthening a defendant‘s sentence as a result of the trial election,43 no record would ever be adequate for review of a claim like this without the aid of a crystal ball or mind reаder.
Moreover, Judge Robinson‘s observations with respect to the content of the record in this case capture the very need for the exercise of our supervisory authority in this context. He aptly observed that “reasonable minds can disagree as to whether the court‘s statement concerning
Finally, we do not in any way intimate that trial courts are precluded from considering or discussing at sentencing the defendant‘s conduct during the trial and sentencing proceedings, including the apparent veracity of the defendant‘s testimony therein. Beyond forgoing the potential and permissible exercise of leniency in exchange for a guilty plea, a defendant who elects a trial generally incurs greater exposure at sentencing because “the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.” Alabama v. Smith, 490 U.S. 794, 801, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989); accord State v. Coleman, supra, 242 Conn. 543–44. The defendant‘s demeanor, criminal history, presentence investigation report, prospect for rehabilitation and “general lack of remorse for the crimes” of which he has been convicted remain “legitimate sentencing considerations.”44 State v. Anderson, supra, 212 Conn. 50;
We conclude, therefore, that the trial court‘s remarks, which created an appearance of impropriety insofar as they referred adversely to the defendant‘s election of a trial in evaluating the defendant‘s remorse and addressing the effect of the offense and trial on the victim,45 warrant the invocation of our supervisory authority to grant the defendant a new sentencing
The judgment of the Appellate Court with respect to the defendant‘s sentencing is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court in part and to remand the case to the trial court for a new sentencing proceeding.
In this opinion the other justices concurred.
* This case originally was argued before a panel of this court consisting of Chief Justice Rogers and Justices Norcott, Palmer, Zarella and Eveleigh. Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte, ordered that the case be considered en banc. Accordingly, Justices McDonald and Espinosa were added to the panel, and they have read the record and briefs and listened to a recording of the oral argument prior to participating in this decision.
The listing of justices reflects their seniority status on this court as of the date of oral argument.
Notes
“As I worked on a drawing in White Hall, [the defendant] brutally attacked me with а knife. . . . As I put up my hands to protect my face he slashed me with the knife. I don‘t know how I found the strength to fight him off, especially given the pain I was in and the blood covering me, but somehow I escaped and ran to campus police for assistance. I was in such shock that I refused to stop running, despite offers of help from other students. I felt that if I could reach a police officer I would be safe. I cannot stop thinking about what would have happened if I did not manage to escape, most likely I would not be here today.
“After the attack my family and I lived in fear that the defendant would not be found and I would live my life afraid that he would return and . . . continue to attack or kill other victims. My husband and other family members and friends stayed with me at all times so I would not be alone. He was apprehended, but I am so fearful.
“I underwent surgery for my hand and had several months of therapy. I have visible scars on my face and body that will never go away.
“Beyond the physical injuries I‘ve suffered, this crime has had a tremendous impact on my life emotionally. Before this happened, I was open and trusting. Now I am guarded and cautious, always fearing that this could happen to me again.
“I am now the mother of a four month old—in fact, I testified at the trial when my baby was only four weeks old. During the trial, it was awful for me to relive the brutal attack and for my husband, parents, friends, and the many other family members to hear firsthand the events of that day.
“The fact that the defendant denied he had the capacity to commit this crime is shocking and shows me that he has not taken responsibility for what he has done to me. In my opinion, any capable of such a brutal and unprovoked attack will strike again.
“It is my sincere hope that the court recognizes the viciousness of the crime and the apparent lack of remorse by the defendant and sentences him to an appropriate punishment. Please protect me and other innocent victims from further attacks. Thank you.”
Judge Robinson concurred with the judgment of the Appellate Court, including the majority‘s decision not to utilize its supervisory powers to reach the defendant‘s claims, but wrote “separately to emphasize the point that a trial court should never take into consideration whether a person exercised his or her constitutional right to trial by jury and also to dispel any suggestion that this court‘s decision represents tacit approval for such a practice.” Id., 369.
Judge Dupont again concurred in the result separately, concluding that the defendant‘s unpreserved constitutional claim was raised adequately under State v. Wright, supra, 114 Conn. App. 463, which she would not overrule, but also concluding that the defendant had failed to prove that the trial court violated his due process rights at sentencing. See State v. Elson, supra, 125 Conn. App. 386–87.
We acknowledge that Roy appears to have sowed some confusion about whether its principle of permitting review under the principles of State v. Golding, supra, 213 Conn. 239–40, despite the defendant‘s failure to invoke that decision, “applies to all alleged constitutional deprivations or only those that relatе to a claim that the evidence was insufficient to convince a trier that every element of an offense has been proven beyond a reasonable doubt.” State v. Rogers, 38 Conn. App. 777, 788 n.10, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). The Appellate Court “interpret[ed] the words ‘[i]n the circumstances of this case’ to refer to unpreserved sufficiency claims and not to the particular factual situation presented in Roy.” Id.; see State v. Thomas, 62 Conn. App. 356, 361 n.6, 772 A.2d 611 (same), cert. denied, 256 Conn. 912, 772 A.2d 1125 (2001); see also State v. Wright, supra, 114 Conn. App. 462–63 (citing Roy and Waz in support of proposition that, “in a number of instances, both [our Appellate Court] and our Supreme Court have reviewed an unpreserved alleged constitutional claim despite the defendant‘s failure to request a Golding review“); State v. Liebowitz, 65 Conn. App. 788, 805 n.7, 783 A.2d 1108 (citing Roy in rejecting the state‘s claim “that Golding review is inappropriate because the defendant, in his brief, summarily states that his confrontation clause rights were violated without any citation to authority or analysis” stating that “[a]lthough the defendant did not provide this court with an overwhelming analysis of his claim, neither an inadequate briefing of a constitutional issue nor a failure to invoke the word ‘Golding’ prevents us from reviewing the claim“), cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).
In any event, the distinction between consideration and augmentation is, for the practical purpose of establishing a constitutional violation requiring reversal, is one that lacks a meaningful difference. Under Kelly, consideration and augmentation are inseparable with respect to establishing the existence of a constitutional violation requiring reversal; augmentation is necessary to establish the requisite harm. Put differently, our adoption of a totality of the circumstances analysis in Kelly indicates a rejection of an approach deeming consideration of the defendant‘s trial election to be, in essence, structural constitutional error requiring per se reversal.
” ‘Mitigating factors which I have considered are age of the defendant, intelligence, school record or work record, prior criminal record, record since the offense in question, remorse, either drug addiction or alcohol involvement, mental problems, attitude, family support and community support.
” ‘The law requires me to consider each and every single one of those factors in pronouncing the sentence and I have done so.
” ‘I have given special consideration to five factors that I have noted here: the age of [the victim] a week after her sixteenth birthday; the age of [the defendant], a high school teenager; the lack of closure of this matter for a period of eleven years; the fact that this sentence is not punishing [the defendant] for any matters for which he is currently awaiting disposition and/or trial.
” ‘The final factor that I have considered is the rules on proportionality.’ ” (Emphasis added.) State v. Kelly, supra, 256 Conn. 80 n.27.
“[W]e recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.” (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 371–73, 33 A.3d 239 (2012); see also Practice Book § 60-5.
Examples of the first category include: State v. Medrano, 308 Conn. 604, 631, 65 A.3d 503 (2013) (The court utilizes its supervisory power to “direct our trial courts in the future to refrain from instructing jurors, when a defendant testifies, that they may specifically consider the defendant‘s interest in the outcome of the case and the importance to him of the outcome of the trial. Instead, we instruct the trial courts to use the general credibility instruction to apply to a criminal defendant who testifies.“); State v. Pena, 301 Conn. 669, 684, 22 A.3d 611 (2011) (declining to use supervisory power to overrule State v. Huey, 199 Conn. 121, 505 A.2d 1242 [1986], but stating that “we suggest that our trial courts in future sentencings refrain from expressing disagreement with the jury‘s verdict“); State v. Ouellette, 295 Conn. 173, 191–92, 989 A.2d 1048 (2010) (when state attests to witness’ cooperation at that witness’ sentencing hearing, sentencing court must “inquire into the nature of any plea agreement between the state and the witness, and any representations concerning that agreement made during the trials at which the witness testified“); State v. Ledbetter, 275 Conn. 534, 578–79, 881 A.2d 290 (2005) (requiring jury instruction concerning certain risks inherent in eyewitness identification procedures), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006); State v. Padua, 273 Conn. 138, 178–79, 869 A.2d 192 (2005) (requiring appeals court to address defendant‘s insufficiency of evidence claim first, if claim is properly briefed and sufficient record exists, even if another meritorious claim would result in new trial, because successful sufficiency claim would render new trial unnecessary); Duperry v. Solnit, 261 Conn. 309, 329, 803 A.2d 287 (2002) (when criminal defendant pleads not guilty by reason of mental disease or defect and state substantially agrees with defendant‘s plea, court must canvass defendant to ensure that plea is voluntary and made with full awareness of consequences); State v. O‘Neil, 261 Conn. 49, 74–76, 801 A.2d 730 (2002) (revising and directing specific version of “Chip Smith” charge in future cases); State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) (using supervisory power to avoid “danger of juror misunderstanding” by “direct[-ing] our trial courts in the future to refrain from instructing jurors that one who uses a deadly weapon on the vital part of another ‘will be deemed to have intended’ the probable result of that act and that from such a circumstance the intent to kill properly may be inferred“); State v. Griffin, 253 Conn. 195, 209–10, 749 A.2d 1192 (2000) (prohibiting use of “two-inference” jury instruction as potentially misleading jury as to application of reasonable doubt standard); State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999) (precluding jury instruction stating that reasonable doubt is not doubt suggested by ” ‘ingenuity of counsel’ “); State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (1999) (prohibiting use of jury instruction that requirement of proof beyond reasonable doubt is rule intended to “protect the innocent and not the guilty” [internal quotation marks omitted]), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Coleman, supra, 242 Conn. 541–42 (concluding that record indicated that reversal was not necessary after adopting rule requiring sentencing court, upon defendant‘s request, to articulate its reasons for imposing greater sentence after trial than that previously imposed under terms of withdrawn plea agreement); State v. Gould, 241 Conn. 1, 14–15, 695 A.2d 1022 (1997) (requiring that videotaped dеposition testimony be replayed in open court, under supervision of trial judge, and in presence of parties and counsel, rather than in jury room, but holding no prejudice from failure to do so in that case); State v. Patterson, 230 Conn. 385, 397–400, 645 A.2d 535 (1994) (adopting unwaivable supervisory rule for future cases requiring trial judge to be present in court to oversee voir dire in criminal trial, but determining that defendant had waived his objection to judge‘s absence as constitutional matter); and State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166 (1989) (establishing procedure to be followed during jury selection when defendant raises claim that state has peremptorily excluded juror on basis of race pursuant to Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1715, 90 L. Ed. 2d 69 [1986]), cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).
Examples of the second category include: State v. Polanco, 308 Conn. 242, 256–58, 61 A.3d 1084 (2013) (overruling merger approach articulated in State v. Chicano, 216 Conn. 699, 584 A.2d 425 [1990], cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 [1991], with vacatur approach when defendant is convicted of greater and lesser included offenses); State v. Rose, supra, 305 Conn. 605–606 (adopting rule of per se reversal when defendant is compelled to stand trial in prison garb); State v. Connor, 292 Conn. 483, 518–19, 533, 973 A.2d 627 (2009) (remanding case to trial court for findings after adopting rule requiring trial court, upon finding that mentally ill or incapacitated criminal defendant is competent to stand trial and to waive right to counsel at that trial, to make additional determination that defendant is competent to conduct trial proceedings without counsel); State v. Gore, 288 Conn. 770, 787–90, 955 A.2d 1 (2008) (upholding reversal of conviction after articulating rule that when criminal defendant seeks to waive right to trial by jury without written waiver, court must canvass defendant to ensure that waiver is knowing, intelligent and voluntary); State v. Santiago, supra, 245 Conn. 340 (remanding case for further proceedings after expanding scope of inquiry required for general allegations of juror misconduct when alleged misconduct results from racial bias of juror or jurors); State v. Brown, supra, 235 Conn. 502, 528–30, 668 A.2d 1288 (1995) (ordering remand for further proceedings after adopting rule requiring trial judge presented with allegations of juror misconduct to conduct preliminary inquiry into such allegations); and State v. Jones, 234 Conn. 324, 347–50, 662 A.2d 1199 (1995) (requiring bifurcation of jury trial proceedings in capital felony cases when defendant is charged under
We have also utilized our supervisory powers in a very limited manner to address claims of and deter repeated instances of prosecutorial impropriety. For discussion of these cases, see footnote 31 of this opinion.
This “fine distinction” between extending lenience to defendants who plead guilty and penalizing those who exercise their right to a trial has recently been criticized as an analytical fiction that “changes merely the form of the problem, not the substance” and therefore “fails to alleviate the constitutional difficulties.” C. Hessick & F. Hessick, “Recognizing Constitutional Rights at Sentencing,” 99 Cal. L. Rev. 47, 64 (2011); see also id., 63 (“[t]he refusal to grant a defendant leniency that is given to others because the defendant performed some act—exercising his right to a jury—seems analytically indistinct from increasing that defendant‘s punishment because he performed that same act“).
The most recent statistics for the fiscal years of 2010–2011 and 2011–2012 indicate that Judge Bishop‘s observation retains its currency. See Connecticut Judicial Branch, Biennial Report and Statistics 2010–2012, pp. 50–51 (indicating that 5.1 percent, or 177 out of 3450, of criminal cases were disposed via trial in 2010–2011 and 4.8 percent, or 164 out of 3386, of criminal cases were disposed via trial in 2011–2012), available at http://jud.ct.gov/ Publications/BiennialReport2010-12.pdf (last visited April 21, 2014).
Under these factors, and particularly with respect to the victim in this case, as the defendant points out, our remedy in this certified appeal will not require her to relive the trauma created by the defendant‘s actions. The victim‘s previous statement is on record and may be considered by the trial court at the defendant‘s resentencing, should she desire not to return to court.