225 Conn. 450 | Conn. | 1993
Lead Opinion
The principal issue in this criminal appeal is whether a statute imposing on the defendant in a criminal prosecution the burden of establishing the defense of mental disease or defect violates the due process provisions of the Connecticut constitution. The state charged the defendant, Angelo Joyner, with one count of kidnapping in the first degree, in viola
The jury could reasonably have found the following facts. The victim and her two and one-half year old daughter lived in an apartment in New Haven. On the evening of March 2,1989, the victim invited a number of neighbors and the defendant to her apartment. After the other visitors had left, the victim asked the defendant also to leave, but he refused to do so.
The defendant told the victim that he wanted to have sex with her. When she refused, he began to hit her and threatened to kill her daughter, who was asleep in an upstairs bedroom. He forced the victim to perform fellatio and penetrated her, vaginally and anally.
Early on the morning of March 3, 1989, two police officers went to the apartment in response to a complaint of screaming. Upon their arrival, they heard a woman repeatedly crying out for help. The defendant appeared in an upstairs window, but refused the officers’ request to open the door. After breaking down the door to gain entry, they told the defendant to come downstairs. The defendant first refused, threatening to kill the police officers with a gun, but he ultimately allowed the child to go downstairs and then went down himself, holding the victim. The defendant and the victim were nude and covered with blood. The victim’s face was swollen to twice its normal size. She could barely speak and was gasping for breath. The defendant had no visible injuries. Police inspection of the apartment disclosed the presence of bloodstains on the furniture and on the floor of numerous rooms.
Medical examinations of the victim revealed severe facial trauma, as well as a broken rib, and possibly a bruised kidney. The pattern of her injuries demonstrated that they had resulted from a beating and not from an accidental fall down a staircase.
The state toxicologist analyzed vaginal and anal smears taken from the victim and discovered the presence of sperm. This scientific evidence was consistent with the victim’s immediate complaints of sexual assault, both to an examining gynecologist and to a police officer.
The defendant did not deny his presence at the victim’s apartment. Without testifying himself, he offered
The jury found the defendant guilty as charged. The trial court denied the defendant’s motions for a new trial and for acquittal and rendered judgment in accordance with the jury verdict.
The defendant has raised seven issues in his appeal to this court. He maintains that the trial court improperly: (1) denied his motion for acquittal of assault in the first degree; (2) imposed upon him the burden of establishing his insanity, pursuant to General Statutes § 53a-13 (a), in violation of the due process provisions of article first, §§ 8 and 9 of the Connecticut constitution; (3) failed to give a sua sponte curative instruction to the jury in response to a prejudicial rebuttal argument by the state’s attorney; (4) admitted prior misconduct evidence; (5) refused to make an in camera inspection of privileged records of the victim; (6) permitted the state’s psychiatrist to testify that the defendant had been in control of his conduct; and (7) deprived him of his constitutional right to testify. We are unpersuaded by any of these claims.
The defendant’s first contention is that the state adduced insufficient evidence to sustain his conviction of assault in the first degree. In its long form information, the state charged that the defendant had committed first degree assault, as defined by § 53a-59 (a) (1), by intentionally causing serious physical injury to the victim “by means of a dangerous instrument; to wit: a piece of wood.” The defendant maintains that even if the jury could reasonably have found that he had inflicted serious physical injury upon the victim, it could reasonably have determined only that he had done so with his fists and not with a wooden stick. The defendant raised this issue in the trial court by filing a motion for acquittal, which the trial court denied.
This court’s review of claims relating to the sufficiency of the evidence to sustain a criminal conviction is governed by a well established standard of law. “Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); see also State v. Crosswell, 223 Conn. 243, 249, 612 A.2d 1174 (1992); State v. Roseboro, 221 Conn. 430, 434, 604 A.2d 1286 (1992). Applying that standard in this case, we conclude that the evidence presented by the state could reasonably have persuaded the jury, beyond a reasonable doubt, that the defendant had committed the crime of assault in the first degree.
The term “serious physical injury” is defined by General Statutes § 53a-3 (4) as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” When the evidence supports a finding that a beating with fists and with a stick, in combination, caused such serious impairment to the health of a victim as to render her unconscious, it is not necessary for the victim to be able to recall with precision what blows caused her injuries. Although the victim could not remember how often the defendant had hit her with the stick, she did recall that he had hit her with the stick at least once. She also testified that the defendant had stood over her, stick in hand, while she was lying on her back, before she lost consciousness. The jury could infer from this testimony, in conjunction with its examination of the stick, which was in evidence, that the state had proved assault in the first degree beyond a reasonable doubt.
II
The defendant’s second contention is that he is entitled to a new trial because the trial court improp
The defendant did not object at trial to the trial court’s charge assigning to him the burden of proof on mental disease. We have decided to review this claim, nonetheless, because the record is adequate for us to consider it, and because it raises an important and unresolved question of state constitutional law. State v. Golding, 213 Conn. 233, 238-41, 567 A.2d 823 (1989);
The defendant’s constitutional argument rests on two overlapping rules of law allegedly mandated by the due process clauses of our state constitution. The defendant’s principal but narrower contention is that our due process provisions require the state to prove sanity, once an issue about a defendant’s mental status has properly been raised, because the defendant’s mental status then becomes one of the elements of the state’s case. His alternate but broader contention is that, regardless of whether sanity is an element of the state’s case, our due process provisions incorporate principles of fairness, justice and morality that require the state to bear the ultimate burden of proof with respect to sanity.
A
To put the defendant’s state constitutional contentions into perspective, it is helpful to examine briefly how federal law has dealt with the issues that he raises. As a matter of federal constitutional law, although due process requires the state to prove every element of its case beyond a reasonable doubt; Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698-701, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); a defendant’s sanity is not an element of the state’s case, so that the state need not bear the burden of proof on that issue. Patterson v. New York, supra, 205-206; Leland v. Oregon, 343 U.S. 790, 797-99, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952).
As a matter of state constitutional law, we presume that the due process clauses contained in article first, §§ 8 and 9, incorporate the federal principle that due process requires the state to prove every element of its case beyond a reasonable doubt. We presume also that our due process clauses equally incorporate the federal principle that, as a general matter, “[i]t is constitutionally permissible for the state to place the burden on a criminal defendant to prove by a preponderance of the evidence elements which would constitute an affirmative defense but which do not serve to negate any essential element of the crime which the state has the burden of proving beyond a reasonable doubt in order to convict.” State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980); see also McMillan v. Pennsylvania, 477 U.S. 79, 85-86, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986); Patterson v. New York, supra. Bearing these propositions in mind, we must decide whether, under our state constitution, a defendant’s sanity, once put into issue, must be proved by the state as an element of its case or as a result of another applicable constitutional principle. We assuredly have the authority to construe our own due process clauses to afford higher levels of protection for the individual rights of insane persons than those guaranteed by the federal constitution. Cf., e.g., State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990); State v. Dukes, 209 Conn. 98, 120-23, 547 A.2d 10 (1988).
We turn first to the defendant’s claim that § 53a-13 (a), as amended, is unconstitutional because, once mental status has been raised as an issue in a criminal prosecution, proof of sanity necessarily becomes an element of the state’s case. We agree with the state that the legislature is not foreclosed from making insanity an affirmative defense to be proved by a defendant by a preponderance of the evidence, because we can discover no constitutional requirement that sanity be considered an essential element of the crime to be proved by the state beyond a reasonable doubt.
Our analysis of the defendant’s challenge to the constitutionality of § 53a-13 (a), as amended, must take account of two well established postulates. First, in light of the established presumption in favor of a statute’s constitutionality, any person attacking the validity of a lawfully enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt. State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). Second, in light of established doctrines implicit in the separation of powers, the primary responsibility for enacting the laws that define and classify crimes is vested in the legislature; State v. Dupree, supra, 665; State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976); State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976); and such legislative authority includes the responsibility for defining the elements of a crime. See State v. Breton, supra, 268.
Our inquiry into the constitutionality of § 53a-13 (a), as amended, must also proceed with the recognition that there is an analytic distinction between mental sta
The defendant’s principal contention is that, in light of our state due process clauses, this analytic distinction between the purposes for which evidence of mental status may be adduced is irrelevant. It does not matter, in his view, that the legislature has not included sanity as an element of the crime with which he has been charged. He maintains that it is just as unconstitutional for the legislature to shift to him the burden of establishing the defense of insanity as it would be to require him to bear the burden of proof on intent. In either case, he argues, principles of due process in Connecticut mandate the conclusion that, once the issue of mental status has properly been raised, mental status, including both intent and sanity, becomes an element of the crime charged on which the state must bear the burden of proof.
Pursuing this search for historical meaning, the defendant maintains that Connecticut cases, both in the nineteenth century and more recently, have described the defense of insanity as encompassing sanity within the elements of criminal behavior. These descriptions manifest, according to the defendant, a constitutional understanding about the relationship between sanity and the elements of a crime that the legislature is powerless to overturn.
Although cases in close temporal proximity to the enactment of our constitution in 1818 would have helped to clarify the intent of the framers with regard to the defense of insanity, neither our own research nor that of counsel has uncovered any such cases. Beginning in the latter part of the nineteenth century, the case law does, intermittently, endorse the proposition that the state must prove sanity and sometimes describes such proof as an element of the state’s case.
Nineteenth century Connecticut cases on insanity begin with State v. Johnson, 40 Conn. 136, 140 (1873), in which the court upheld an instruction that stated, in part, “[i]f upon the whole evidence the jury entertain a reasonable doubt as to the prisoner’s sufficient
In this century, it became the established pattern to place the burden of proof of sanity upon the state, once the defendant had introduced sufficient probative evidence about his mental condition to make his sanity an issue. The nature of the state’s obligation was first described as putting upon the state the burden “ ‘as it [has] in all other particulars’ ” to satisfy the jury beyond a reasonable doubt about the defendant’s sanity and responsibility at the time of his commission of the offense with which he was charged. State v. Joseph, 96 Conn. 637, 639, 115 A. 85 (1921); see also State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947). More recently, the state’s burden was described as including, as an essential element of the crimes charged, “the essential elements of the mental condition requisite to legal responsibility under our governing test.” State v. Conte, 157 Conn. 209, 212, 251 A.2d 81 (1968), cert. denied, 396 U.S. 964, 90 S. Ct. 439, 24 L. Ed. 2d 428 (1969); see also State v. Santangelo, 205 Conn. 578,
The question before us is what constitutional significance to attach to these various understandings about burdens of proof and elements of a crime. The defendant would have us take the language of the cases, especially references to sanity as an “essential element,” as so embedded in our Connecticut jurisprudence that due process requires continued observance of their rulings and precludes the legislature from relieving the state of its burden of proving sanity as an element of its case.
The state urges us, however, to view our cases from a perspective that differentiates between (1) independent facts, as to which the legislature is free to allocate the burden of proof either to the state or to the defendant, and (2) the elements of a crime, as to which due process requires the state to shoulder the burden of proof. The state regards the defense of insanity as relating to an independent fact. Accordingly, the state maintains that the legislature was empowered to shift the burden of proof with regard to that independent fact to the defendant.
We agree with the state that sanity, like the absence of drug dependency; see State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992); State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); is an independent fact and not an element of any existing criminal offense. As to such an independent fact,
C
The defendant’s alternate contention is that, regardless of whether sanity is an element of the state’s case, our state due process provisions incorporate principles of fairness, justice and morality that require the state to bear the ultimate burden of proof with respect to sanity. Relying particularly on article first, § 9, the defendant argues that historical principles, including natural law as a source of common law and constitutional principles, embody ethical strictures against
Article first, § 9, provides that “[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law.” We have held that the meaning to be attributed to the phrase “except in cases clearly warranted by law” will depend on the particular liberty interest that is at stake. State v. Lamme, supra, 178. “Such a construction is, of course, entirely consonant with the general contours of a constitutional safeguard rooted in flexible principles of due process.” Id.
The history of article first, § 9, suggests that it incorporates no single constitutional standard for due process. Its antecedents may be found in a number of quasi-constitutional and statutory enactments dating back to the seventeenth century. See State v. Lamme, supra, 178-79, and references therein cited; see also B. Chapin, Criminal Justice in Colonial America, 1606-1660 (1983). The earliest reported judicial discussion of the predecessor of article first, § 9, referred to its provisions without distinguishing between statutory and constitutional constraints on governmental intrusions on personal liberty. Jackson v. Bulloch, 12 Conn. 38, 43 (1837). Regarding the defendant’s claimed liberty interest, therefore, these precedents provide no support for his blanket assertion that article first, § 9, is historically rooted in constitutional guarantees protecting against defective statutory law. On the contrary, while some personal rights had their origins in the common law and in pre-1818 declarations of rights, others were created by statute. See C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefini
In addition to rights enumerated in the state constitution and statutes, late eighteenth century commentators referred also to natural rights as a source of the common law. See, e.g., 1 Root (Conn.), Introduction p. iv. The defendant contends that these common law principles preclude the punishment of a person whose sanity is in doubt.
We agree with the defendant that our common law tradition provides considerable support for the proposition that insanity is a defense to criminal conduct, so that the state could not entirely eradicate such a defense from the penal code. See, e.g., 2 Z. Swift, Digest of the Laws of Connecticut (Dutton Ed. 1871) p. 384. As we have noted on other occasions, our common law history is an important source of enlightenment about the meaning to be ascribed to open-ended constitutional provisions guaranteeing due process. See, e.g., State v. Stoddard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988); see also E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259, 261 (1989).
We do not agree, however, that these common law antecedents limit the power of the legislature to allocate the burden of proof with respect to insanity. Specifically, although the commentators emphasize the impropriety of punishment for a person who lacks the mental capacity and understanding that the criminal law has always required, they do not address the manner in which such lack of capacity is to be shown. More generally, the commentary does not speak to the relative primacy of inconsistent statutory and common law rules.
To the extent that common law rules are “derived from the law of nature,” it is likely that our ancestors envisaged the possibility that natural law principles could find expression, not only through constitutional rights, but by the actions of a duly constituted and representative legislature. According to Professor Philip
Colonial Americans understood that natural law permitted variations in civil laws “to accommodate the different circumstances in which such laws would operate. Consequently, constitutions and other civil laws could restrain natural liberty in varying degrees and ways and, nonetheless, could still be said to comport with natural law.” Id., 937. “When saying that constitutions and other civil laws should be formulated to reflect natural law, Americans typically were not suggesting that natural law was a kind of constitutional law or a source for constitutional rights not protected by a written constitution. On the contrary, under modern natural rights analysis, constitutional law and natural law were quite distinct from one another and played very different roles.” Id., 938. “Far from being a form of constitutional law, natural law typically was assumed to be the reasoning on the basis of which individuals adopted constitutions and a means by which the people could measure the adequacy of their constitutions.” Id., 940. “Although Americans often discussed constitutional guarantees of natural rights in terms of natural law, they did not broadly incorporate natural
Professor Hamburger’s analysis suggests that our forebears did not understand natural law to be a source of expansive, unlimited rights that the civil law was prohibited from subjecting to substantial statutory restrictions. We are unprepared, as a constitutional matter, to translate a general concern about the injustice of imposing criminal punishment on the insane into a binding stricture on statutory reallocation of the burden of proof on insanity.
We are equally unpersuaded that modern views about morality in the criminal law make it unconstitutional to require a defendant to prove his insanity in accordance with the terms of § 53a-13 (a), as amended. Although there continues to be considerable disagreement about the appropriate public policy response to mental illness; see, e.g., A. Goldstein, The Insanity Defense (1967) pp. 15-20; G. Christie & A. Pye, “Presumptions and Assumptions in the Criminal Law: Another View,” 1970 Duke L.J. 919, 937-38; we are not prepared to hold that the defense of insanity is so central to the issue of criminal culpability that allocating the burden of proof to the defendant, by a preponderance of the evidence, is constitutionally impermissible.
Our analysis of the constitutional requirements of due process in this regard is informed by the understanding that, under the state constitution, as under the federal constitution, “due process is flexible and calls for such procedural protections as the particular situation
Applying these factors to the present case, we conclude that imposing on the defendant the burden of proving his insanity by a preponderance of the evidence does not violate due process. The defendant’s private interest is that his insanity defense be properly adjudicated. The risk of an erroneous deprivation of that interest is that allocating the burden of proof of insanity to him, by a preponderance of the evidence, rather than to the state, by proof beyond a reasonable doubt, increases the possibility that the defense may fail in circumstances where it should be accepted. Both of these factors argue in favor of the defendant’s contention that § 53a-13 (a), as amended, is constitutionally questionable. The third factor, however, cuts the other way. The defendant is much more likely than the state to be able to produce reliable evidence of his own mental
We conclude, accordingly, that the trial court correctly instructed the jury in accordance with the provisions of § 53a-13 (a), as amended. Our state constitution permits the legislature to determine that the defendant, rather than the state, shoulder the burden of proof on sanity when sanity is not an element in the charge against the defendant.
Ill
The defendant’s third claim is that he is entitled to a new trial because the trial court failed to protect his rights when the state’s attorney argued, in rebuttal, that the jury could consider the defendant’s demeanor in the courtroom in evaluating his insanity defense.
We need not decide, in this appeal, whether the comments of which the defendant now complains would have required a judicial response had there been a timely objection at trial.
Furthermore, a single questionable statement by the state’s attorney does not merit plain error review under Practice Book § 4185. The injustice, if any, such a statement may manifest would not, in all probability, impair the effectiveness or integrity of the defendant’s trial. State v. Person, 215 Conn. 653, 666, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); State v. Foreshaw, 214 Conn. 540, 547, 572 A.2d 1006 (1990); State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).
The defendant’s fourth claim is that the trial court abused its discretion by permitting the state to introduce evidence of his prior misconduct in its cross-examination of the defendant’s psychiatrist. The psychiatrist testified that, in arriving at his diagnosis that the defendant had been psychotic and had suffered from a schizoaffective disorder at the time of the assault, he had relied in part on the defendant’s personal history, including two prior assaults in 1983. The state then inquired whether the psychiatrist was aware that these assaults had been so violent as to have caused brain damage to their victims. The psychiatrist acknowledged that he had known only that the defendant had severely beaten others with his fists. The psychiatrist also acknowledged that, although he had known that no insanity plea had been entered with regard to the 1983 assaults, he had not known that the defendant had not been diagnosed as having a mental disease or defect at that time. The trial court immediately instructed the jury that the evidence of the defendant’s prior misconduct could be considered only for the limited purpose of assessing the psychiatrist’s opinion, and not for a determination of the defendant’s guilt or innocence in this case.
The propriety of the state’s questioning is governed by State v. Carter, 198 Conn. 386, 503 A.2d 576 (1986). In that case, we adopted the view of numerous other state courts that a plea of insanity permits an inquiry into the defendant’s entire life and thus makes admissible evidence of his prior misconduct to show his mental condition, even though such evidence would ordinarily be excluded. Id., 391-92. “Once the insanity defense is asserted by a defendant the state is entitled to use relevant evidence of prior crimes to rebut it. This rule, of course, is subject to the constraint that the probative value of the evidence must outweigh its prejudicial effect. See State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970).” State v. Carter, supra, 393. On appeal, the issue is whether the trial court abused its discretion in concluding that the evidence was admissible. Id., 395.
We conclude that the ruling of the trial court was not an abuse of discretion. It was relevant for the state to ask the psychiatrist how these earlier charges, which had elicited no contemporaneous assertion of mental illness, fit the psychiatrist’s diagnosis of the defendant as having suffered from a long-term mental illness. In light of the psychiatrist’s acknowledgement that he had been aware of the existence of these charges when he had diagnosed the defendant, it was not impermissibly prejudicial to test the depth of his understanding of what allegedly had transpired. Furthermore, the trial court’s immediate sua sponte curative instruction served to minimize the risk of undue prejudice. The defendant cannot prevail on this claim.
Y
The defendant’s fifth claim is that the trial court improperly denied his request that it undertake an in camera inspection of the mental health records of the victim. The victim acknowledged that she had had several drinks on the occasion of the assaults, and her blood tests, taken immediately after the assaults, indicated a high blood alcohol content. The defendant believed, therefore, that the records might provide information useful to his cross-examination of the witness. The defendant urged the court to inspect such records, because the credibility of the victim was a central issue in this case.
The trial court ruled that the records of the New York hospitalization were too remote in time to warrant inspection, and that the defendant had failed to make a sufficient preliminary showing of how the victim’s mental health or alcohol treatment affected her testimonial capacity so as to warrant inspection of the records of the Connecticut shelter or of the Connecticut outpatient treatment facility. On appeal, the defendant does not challenge the court’s finding of temporal remoteness regarding the New York hospitalization. He contends instead that, at least with respect to the victim’s outpatient treatment for substance abuse, the court was required to undertake the requested inspection. We agree with the state, however, that the trial court correctly ruled that the defendant had not made the preliminary showing that our decisions have uniformly required to warrant further in camera inspection of mental health records. See State v. Castonguay, 218 Conn. 486, 590 A.2d 901 (1991); State v. D’Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986); State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985),
The trial court is vested, in the first instance, with the responsibility of resolving the inherent tension between the broad privilege that our state law affords to a witness concerning the confidentiality of his or her psychiatric communications and records, including those pertaining to the diagnosis, prognosis or treatment for alcohol abuse or alcoholism; see General Statutes (Rev. to 1991) §§ 17-155bb (b) (recodified at General Statutes § 17a-630 [c]), 52-146d, 52-146e; and a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. State v. D’Ambrosio, supra, 55-57; State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, supra, 227. The defendant’s right of cross-examination does not allow him to discredit and impeach “in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). Before a defendant may have access to privileged records that “he believes contain information that would allow him to impeach a witness’ ability to comprehend, know or correctly relate the truth, [he] must make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness.” (Internal quotation marks omitted.) State v. Castonguay, supra, 505; see also State v. D ’Ambrosio, supra, 58; State v. Pierson, supra, 225-26; State v. Esposito, supra, 179-80.
In this case, it was not enough for the defendant to show merely that the victim had consumed alcohol on
VI
The defendant’s sixth claim is that the trial court improperly permitted the state’s psychiatrist to testify that the defendant had control over his conduct. The basis of this claim is the court’s ruling to uphold the state’s objection to testimony by the defendant’s psychiatrist that the defendant’s history of mental disease or defect, schizoaffective disorder, alcoholism and drug abuse “substantially impaired his capacity to conform his conduct to the requirements of the law.” The defendant urges us to hold that, despite the absence of an objection at trial to the testimony by the state’s psychiatrist, the trial court’s inconsistent application of General Statutes § 54-86i
As a procedural matter, the admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under State v. Golding, supra, and State v. Evans, supra, because it does not, per se, raise a question of constitutional significance. See State v. Forrest, 216 Conn. 139, 146, 578 A.2d 1066 (1990); see also State v. Raguseo, 225 Conn. 114, 121, 622 A.2d 519 (1993). Even our ruling in State v. Torres, 210 Conn. 631, 642-43, 556 A.2d 1013 (1989), which held that a series of inconsistent evidentiary rulings could be so injurious as to impair a defendant’s constitutional rights, arose in the context of rulings to which proper exception had been taken.
As a substantive matter, construing § 54-86Í narrowly; see State v. Forrest, supra, 149; the trial court could reasonably have concluded that the testimony of the state’s psychiatrist did not violate the statute while the excluded testimony of the defendant’s psychiatrist crossed over the line by more closely paralleling the language that the statute forbids.
VII
The defendant’s final claim is that the trial court deprived him of his constitutional right to testify at trial by failing to conduct a canvass to determine, on the record, whether the defendant had knowingly and willingly waived his right to take the stand in his own behalf. Defense counsel informed the court, in the defendant’s presence, that the defendant had been advised of his rights and that the defendant would not testify.
We decline the defendant’s invitation to reconsider our decision in State v. Paradise, 213 Conn. 388, 404-405, 567 A.2d 1221 (1990), in which we held that a trial judge does not have an affirmative duty to canvass a defendant to ensure that his waiver of his right to testify is knowing, voluntary and intelligent. “We do not believe that federal law contains any such procedural requirement in a case such as this where the defendant has not alleged that he wanted to testify or that he did not know that he could testify. . . . The accused must act affirmatively. While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the ‘if and ‘when’ of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Citations omitted; internal quotation marks omitted.) Id., 405; accord United States v. Teague, 953 F.2d 1525, 1532-33 (11th Cir. 1992); United States v. Martinez, 883 F.2d 750, 757-760 (9th Cir. 1989). As in Paradise, the defendant here, even now, does not claim that he wanted to testify or that his lawyer failed to explain the available options to the defendant or ignored his wishes.
The judgment is affirmed.
In this opinion Borden, Norcott and Santaniello, Js., concurred.
General Statutes § 53a-92 provides in-relevant part: “kidnapping IN the first degree: class a felony, (a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”
General Statutes § 53a-59 provides in relevant part: “assault in the first degree: glass b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon- or a dangerous instrument . . . .”
General Statutes § 53a-70 provides in relevant part: “sexual assault IN THE FIRST DEGREE: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degree when such person-(1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”
General Statutes § 53a-12 provides in relevant part: ‘ ‘defenses; burden of proof. . . .
“(b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”
General Statutes § 53a-13 provides in relevant part: “lack of capacity due to mental disease or defect as affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.”
General Statutes § 53a-13 (a) made mental disease or defect an affirmative defense as a result of a 1983 legislative amendment to that section. Public Acts 1983, No. 83-486, § 1.
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
In his reply brief, the defendant alludes for the first time to a claim that General Statutes § 53a-13 (a) may also be unconstitutional as a matter of federal constitutional law. We decline to consider this claim because
We recognize the risk that a jury may have difficulty in understanding the distinction between mental status as it relates to the defense of insanity and mental status as it relates to intent. Whatever risk of confusion may be engendered by this distinction must be addressed by an appropriate jury instruction. The defendant has not challenged the jury instruction given by the trial court in this case.
2 W. Blackstone, Commentaries on the Laws of England (Carey Ed. 1916), Book 4, p. 2175, is not helpful to the defendant on the issue of legis
At least some of the commentary critical of assigning the burden of proof on insanity to the defendant does not take into account the conclusion reached by the United States Supreme Court in Patterson v. New York, 432 U.S. 197, 205-207, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), that sanity is not an element of the crime in a criminal prosecution. See, e.g., G. Fletcher, Rethinking Criminal Law (1978), § 7.3, pp. 537-38.
The United States Supreme Court has recognized the significance of the inquiry in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), in the context of criminal prosecutions. See, e.g., Herrara v. Collins, 506 U.S. , 113 S. Ct. 853, 864 n.6, 122 L. Ed. 2d 203 (1993); United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).
“[Practice Book] Sec. 760. psychiatric examination.
“In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination . . . whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination.”
In the absence of a proper objection, courts in other jurisdictions have refused to order a new trial on this ground. See, e.g., Pope v. Wainwright, 496 So. 2d 798, 802 (Pla. 1986), cert. denied sub nom. Pope v. Dugger, 480 U.S. 951, 107 S. Ct. 1617, 94 L. Ed. 2d 801 (1987).
In its curative instruction, the trial court told the jury:
“Ladies and gentlemen, ordinarily a witness’ prior misconduct or criminal record has no bearing whatsoever on any of your responsibilities.
“In other words, you have to decide whether or not the defendant is guilty or not guilty of these particular charges, and it has no bearing whatsoever what he may have done in the past. And that’s true in this case as well as to his guilt or his nonguilt.
“However, with respect to the issue of mental disease or defect, for that limited purpose only, the Court allowed the State’s Attorney to ask those questions on cross-examination that were just asked about these other alleged incidents, not with respect to the guilt or nonguilt of Mr. Joyner*475 for the incident offenses, but only with respect to cross-examination concerning the Doctor’s opinion that he reached concerning a mental disease or defect.
“And it’s very important that you only utilize that testimony, if at all —it’s up to you to decide whether to utilize it in any way. If you do utilize it, only with respect to the claim of mental disease or defect. In no way is it to be used against Mr. Joyner that he may have had other prior misconduct, or that he has a criminal record, or that he has convictions. That has no bearing whatsoever on this particular case.”
In its final instructions, the trial court reminded the jury that some testimony had been admitted only for the limited purpose of determining the affirmative defense of mental disease or defect. “[Y]ou will recall that I gave you limiting instructions as to how that material was to be utilized, and, obviously, you must follow those instructions and utilize that material only in the way that I instruct you.”
General Statutes § 54-86i provides: “testimony of expert witness RE MENTAL STATE OR CONDITION OF DEFENDANT. No expert witness tes
The state’s psychiatrist testified as follows:
“Q. Now, as part of your diagnosis, are you able to say with—well, do you have an opinion as to whether on the night of March 2nd or 3rd Mr. Joyner essentially had control of his own?
“A. Yes, yes, that he did have control of his conduct.
* ** *
“Q. Do you have an opinion from your evaluation-and all the other information that you gathered as part of this case that he essentially knew what he was doing and knew he shouldn’t be doing it?
“A. Well, yeah.”
The record contains the following colloquy:
“The Court: Mr. Dixon, is it fair to say that your client does not plan to testify?
“Mr. Dixon: Your Honor, my client will definitely not testify.
“The Court: Mr. Joyner, just for the record, do you understand that you have a constitutional right to testify, you also have a right, constitutional right not to testify, and your lawyer has indicated that for reasons that are entirely up to you and your lawyer that you do not wish to testify in this case, is that a fair statement in this case?
“Mr. Dixon: Yes, through me, yes, it is.
“The Court: You won’t permit your client to testify?
“Mr. Dixon: He is not going to testify.
“The Court: Mr. Dixon, you won’t permit your client to answer to me whether or not he is going to testify to me, yes or no?
“Mr. Dixon: Last I heard I was his legal representative.
“The Court: If that’s the way you want it, that’s fine. The record can reflect that Mr. Joyner has not spoken, however, his counselor has. As far*482 as the court is concerned, as an officer of the court, I accept Mr. Dixon’s representation that his client is not going to testify. And, so far as I’m concerned, the record reflects that he has been adequately, meaning Mr. Joyner, has been adequately—has been adequately—
“Mr. Clark: Advised.
“The Court: That’s the word, advised—advised [that] he has the right to testify or not testify.”
The state points out that the defendant had, on another occasion, personally expressed to the court his views on his choice of counsel and waiver of conflict. The record demonstrates, therefore, that the defendant was not so inexperienced in court matters that he would have had difficulty in articulating his position if he had been so inclined.
Dissenting Opinion
dissenting. I am deeply troubled by the majority’s holding that General Statutes §§ 53a-12 and 53a-13,
I
Like the majority, I begin my analysis by reviewing federal constitutional law in order to put the state constitutional claim in perspective.
Justice Brennan forcefully argued that sanity is an element of the state’s case in his dissent in Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976). “Like the state rule invalidated in Mullaney, which implied malice unless the accused negated it, the plea of insanity, whether or not the State chooses tp characterize it as an affirmative defense, relates to the accused’s state of mind, an essential element of the crime, and bears upon the appropriate form of punishment. Nor is it sufficient after Mullaney to say, as the Court did in Leland [v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952)], that a State may characterize the insanity defense as it chooses. We said m Mullaney that the requirement of [In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)] that the State prove all elements of the crime was one of substance, not limited to a State’s definition of the elements of the crime . . . .” (Internal quotation marks
II
It is clear that through the lens of our own state constitution, once the issue of the defendant’s mental status is raised, due process requires that the state prove beyond a reasonable doubt that the defendant did not lack the capacity to commit the crime. Consequently, I would find that to the extent that §§ 53a-12 and 53a-13 place the burden of proof on the defendant, they violate due process of law under the state constitution. “It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992).
The majority concedes, as it must, that the due process clauses contained in the Connecticut constitution, article first, §§ 8 and 9, implicitly require the state to prove every element of the crime charged beyond a reasonable doubt. The majority predicates its conclusion that §§ 53a-12 and 53a-13 do not violate this basic tenet of constitutional law on the purported “analytic distinction between mental status as it relates to the insanity defense and mental status as it relates to intent to engage in criminal conduct.” Accordingly, it concludes that sanity is not an element of the state’s case,
In State v. Geisler, supra, 684-86, we concluded that this court, “[i]n order to construe the contours of our state constitution and reach reasoned and principled results,” should employ various approaches for its construction.
In our analysis, we seek to construe article first, §§ 8 and 9, of the Connecticut constitution of 1965, which are derived from article first, §§ 9 and 10, of the Connecticut constitution of 1818.
Ill
The defendant claims, and I agree, that in view of our longstanding common law tradition, which predates our state constitution, the issue of sanity is an element of the state’s case. As a result, our state constitution requires the state to prove sanity beyond a reasonable doubt. This approach to constitutional interpretation has long been recognized as a means for determining what the framers had in mind. Chief Justice Peters
The common law provided the foundation for our unwritten constitution prior to 1818. Jesse Root, a judge of the Superior Court, wrote the following in his introduction to the 1789-1793 reports of cases: “Common law is the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections: It is universal and extends to all men, and to all combinations of men, in every possible situation; and embraces all cases and questions that can possibly arise; it is in itself perfect, clear and certain; it is immutable, and cannot be changed-or altered, without altering the nature and relation of things; it is superior to all other laws and regulations, by it they are corrected and controlled; all positive laws are to be construed by it, and wherein they are opposed to it, they are void.” 1 Root (Conn.), Introduction p. ix. Judge Root also noted that the common law “is the Magna Charta of all our natural and religious rights and liberties, and the only solid basis of our civil constitution and privileges—in short, it supports, pervades and enlightens all the ways of man, to the noblest ends by the happiest means, when and wherever its precepts and instructions are observed and followed—the usages and customs of men and the decisions of the courts of justice serve to declare
The common law antecedents clearly demonstrate that the issue of sanity was an element to be proven by the state. Twenty-two years before the adoption of our first formal constitution in 1818, Justice Zephaniah Swift, a leading Connecticut jurist, noted in his scholarly work on the state common law that “[t]o constitute a crime, it is necessary that there should be a vicious will, and an unlawful act. Where the will is not exercised, there can be no criminality . . . .” 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) pp. 367-68. Five short years after the adoption of the constitution of 1818, Justice Swift wrote: “[I]t is the reason of man that makes him accountable for his actions, and where there is no reason there is no crime . . . .” 2 Z. Swift, Digest of the Laws of Connecticut (1823) p. 361 (Z. Swift, Digest). He further noted that “a court, and jury must exercise a sound discretion in particular cases, always acquitting where there is a reasonable doubt of capacity . . . .” (Emphasis added.) Id., p. 362.
Furthermore, it is clear that in the colonial days and into the time of Swift’s writings, Connecticut jurists relied upon Blackstone as a source of the common law. Blackstone classified sanity as an essential element of a crime, noting that “an unwarrantable act without a
Justice Swift’s writing on the law of capacity is particularly important. He was instrumental in encouraging the public and the legislature to convene the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader is significant. J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) pp. 40-41.
Connecticut law has consistently provided that an individual could not be subject to punishment without the “mind and capacity, reason and understanding enough to enable him to judge of the nature, character and consequence of the act charged against him, that the act is wrong and criminal, and that the commission of it will justly and properly expose him to penalty.” State v. Davis, 158 Conn. 341, 354, 260 A.2d 587 (1969), vacated on other grounds, 408 U.S. 935, 92 S.
The majority circumvents the longstanding history of placing the burden of proof of sanity on the state by noting that there is no temporal case law to indicate that the state bore the burden of proof on this issue prior to 1818.
Indeed, approximately half of the jurisdictions require the state to prove the defendant’s sanity beyond a reasonable doubt. K. Fritz, “The Proposed Federal Insanity Defense: Should the Quality of Mercy Suffer for the Sake of Safety?” 22 Am. Crim. L. Rev. 49, 54 (1984). “The presumption of sanity is merely the general assumption that, ordinarily, human beings are of sound mind. Sanity and insanity are terms applicable to the mode of operation of the mind as judged by some accepted standard of normality. But as soon as the fact of sanity is put in issue (i.e., where some evidence of mental disorder is introduced), the prevailing rule in most jurisdictions is that sanity, like any other fact, must be proved as part of the prosecution’s case beyond a reasonable doubt. Therefore, when all the evidence is in, if there remains a reasonable doubt as to the accused’s responsibility, on the ground of insanity and the tests of irresponsibility, there is a reasonable doubt upon the whole issue of his guilt, and he should accordingly be acquitted.” (Internal quotation marks omitted.) S. Glueck, Mental Disorder and the Criminal Law
The Colorado Supreme Court, presented with the sanity issue, held that a statute that imposed upon the defendant the burden of proving insanity by a preponderance of the evidence violated the due process provision of its state constitution. “All Colorado decisions from the beginning of territorial days to the present require application of the rule that total guilt must be established beyond a reasonable doubt. Mental capacity to commit a crime is a material part of total guilt for there can be no crime without the mens rea.” People v. District Court for County of Jefferson, 165 Colo. 253, 265, 439 P.2d 741 (1968). The Arizona court similarly held that a statute that provided for two trials— the first to determine the issue of guilt or innocence and the second to consider the insanity defense-violated the due process provision of the state constitution. “The bifurcated trial would require the jury to find the intent or the intention solely from the circumstances connected with the offense . . . and the question of sound mind would have to be presented at the second trial which gives rise to the question of whether this is due process of law .... If an individual is insane he would not be able to intend an act, nor would he be able to premeditate or have malice aforethought.” State v. Shaw, 106 Ariz. 103, 109, 471 P.2d 715 (1970), cert. denied, 400 U.S. 1009, 91 S. Ct. 569, 27 L. Ed. 2d 622 (1971).
By labeling mental disease or defect an affirmative defense that the defendant must prove by a preponderance of the evidence, the legislature and the majority of this court condone a constitutionally impermissible shift of the state’s burden to prove every element of its case. This shift violates our notions of fundamental fairness by violating the time honored rule
IV
The defendant also claims that §§ 53a-12 and 53a-13 violate principles of fairness, justice and morality that are deeply embedded in natural law and in the due process provisions of our state constitution, particularly the protections of article first, § 9, which provides that “[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law.” Although the majority acknowledges that natural law principles were widely discussed in colonial America, it concludes that “we are not prepared to hold that the defense of insanity is so central to the issue of criminal culpability that allocating the burden of proof to the defendant, by the preponderance of the evidence, is constitutionally impermissible. ’ ’
Natural law, which pervaded eighteenth century legal thought throughout America, including Connecticut, is but one of many factors that must be considered in interpreting our state constitution.
One of the implicit principles of right and justice is the idea that moral culpability is essential to guilt. To punish for their acts those who cannot be held morally accountable would be cruel and unacceptable. 2 Z. Swift, Digest, supra, p. 362. “The formulations [of the insanity defense] come to us as part of a tradition which makes the notion of ‘desert’ or ‘blame’ central to criminal responsibility and which tries to define a class of persons who fall outside the boundaries of blame.” A. Goldstein, The Insanity Defense (1967) pp. 9-10. In Connecticut, it is clear that punishment was imposed only on those individuals who freely “choose and practice evil, and . . . refuse and counteract that which is just, right and good . . . for on freedom of choosing, depends the merit or demerit of every action.” 1 Root (Conn.), supra, p. xxx. The notion of blame is deeply embedded in Connecticut tradition and is implicit in our concept of liberty and fundamental fairness. To require that the defendant assume the burden of proving insanity or lack of culpability by a preponderance of the evidence violates this essential principle of due process. The defendant is forced to assume the risk on an issue that bears directly on his culpability and places him in the position of being punished when not “clearly warranted by law.”
V
In addition to the history and tradition leading up to our state constitution, practical and sociological concerns also compel the conclusion that §§ 53a-12 and 53a-13 violate article first, §§ 8 and 9 of the Connecticut constitution. As the majority acknowledges in footnote 5 of its opinion, “a jury may have difficulty in understanding the distinction between mental status as it relates to the defense of insanity and mental status as it relates to intent.” The majority concludes,
Sanity is an elusive issue that has been the source of disagreement and uncertainty among legal minds and is certain to baffle jurors. To say that the jury is capable of sorting out issues of intent and culpability, especially in the emotionally charged atmosphere associated with a trial in which the defendant’s sanity is at issue, is to ignore the reality of our jury system. These issues are complex not only for jurors, but for lawyers and psychiatrists as well. We should not divorce ourselves from the realities of the courtroom by underestimating the difficulty that the sanity issue presents to the average juror.
“Ever since our ancestral common law emerged out of the darkness of its early barbaric days, it has been a postulate of Western civilization that the taking of life by the hand of an insane person is not murder. But the nature and operation of the mind are so elusive to the grasp of the understanding that the basis for formulating standards of criminal responsibility and the means for determining whether those standards are satisfied in a particular case have greatly troubled law and medicine for more than a century.” Smith v. Baldi, 344 U.S. 561, 570, 73 S. Ct. 391, 97 L. Ed. 2d 549 (1952) (Frankfurter, J., dissenting), overruled, Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Chief Justice Swift echoed this sentiment, noting that “[n]o precise rule can be laid down, and a court, and jury must exercise a sound discretion in particular cases, always acquitting where there is a reasonable doubt of capacity: and though a man has some faint glimmerings of reason, yet if he does not comprehend the consequences of what he is doing, cannot distinguish between right, and wrong, and is rather actuated by a blind impulse, he cannot be considered as a moral, and accountable agent.” 2 Z. Swift, Digest, supra, p. 362.
Given Connecticut’s longstanding tradition of recognizing sanity as an element of the state’s case, a tradition so fundamental that it is firmly embedded in our constitutional guarantee of due process, I would hold that §§ 53a-12 and 53a-13, insofar as they place the burden of proof of insanity on the defendant after the issue of sanity has been raised, violate article first, §§8 and 9 of the Connecticut constitution.
Accordingly, I dissent.
See footnote 2 of the majority opinion.
See footnote 5, infra.
I agree with the majority that the defendant has neither adequately raised nor briefed the claim that General Statutes §§ 53a-12 and 53a-13 are unconstitutional as a matter of federal constitutional law.
In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we noted that the following tools of analysis should be considered in construing the contours of our state constitution: (1) the textual approach; (2) holdings and dicta of this court and the Appellate Court; (3) federal precedent; (4) sister state decisions; (5) the historical approach; and (6) economic/sociological considerations.
Article first, § 9 of the Connecticut constitution of 1818 provides in relevant part: “[The accused] shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, but by due course of law. . . .”
Article first, § 8 of the Connecticut constitution of 1965 provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law
Both article first, § 10 of the Connecticut constitution of 1818 and article first, § 9 of the Connecticut constitution of 1965 provide: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
“The 1818 debates are crucial for another reason. Connecticut was one of only two former colonies which did not write a constitution in the late eighteenth century after declaring independence. . . . Connecticut waited until 42 years after the Declaration of Independence and 31 years after the Federal Convention. While we tend to think of both 1818 and 1787 as a long time ago, 1818 was as different from 1787 as today is from 1959. For that reason, what was said to justify language in drafting the U.S. Constitution in 1787 is not a safe guide for construing similar language in 1818.” W. Horton, “Annotated Debates of the 1818 Constitutional Convention,” 65 Conn. B.J. SI-3 (1991).
“ ‘It is true,’ [Justice Swift] observe[d], ‘we have no written constitution-, our constitution is made up of usages and customs: but it has been always understood that there were certain fundamental axioms which were to be held sacred and inviolable, and which were the basis on which rested the rights of the people. . . .’ ” J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) p. 41.
Under General Statutes § 53a-12 (b), “[w]hen a defense declared to be an affirmative defense is raised at trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.” It is also important to note that the Commission to Revise the Criminal Statutes stated in its comments that “[t]hose defenses declared 'affirmative defenses’ in the Code embrace conduct which did not heretofore constitute a defense under Connecticut law.” (Emphasis added.) General Statutes Annotated § 53a-12 (b), Commission Comment 1971.
It is interesting to note that the majority of this court did not have any trouble relying on Chief Justice Swift’s treatise when they restricted the state constitutional right to bail by engrafting a “good behavior” requirement, contrary to the plain language of the constitution. State v. Ayala, 222 Conn. 331, 350, 610 A.2d 1162 (1992).
The majority’s reliance on the lack of affirmative case law prior to 1818 as support for its contention that the state did not bear the burden of proof on the issue of sanity ignores the historical reality that few cases were reported during that time period. As a result, judges relied most heavily on Blackstone and Swift. See W. Horton, “Connecticut Constitutional History 1776-1988,” 64 Conn. B.J. 355, 358 (1990).
Aside from State v. Hoyt, 46 Conn. 330, 337 (1878), and State v. Schweitzer, 57 Conn. 532, 539-41, 18 A. 787 (1889), both aberrations from the established line of cases, the majority cannot point to any case indicating that sanity was not an element of the crime charged, either before or after the adoption of the constitution of 1818.
Although natural law is one of many useful sources in attempting to discern the intent of the framers of our state constitution, it should not be adhered to so as to preclude current economic and sociological considerations. “Constitutional provisions must be interpreted within the context of the times. . . . We must interpret the constitution in accordance with the demands of modem society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.” (Citations omitted; internal quotation marks omitted.) State v. Dukes, 209 Conn. 98, 114-15, 547 A.2d 10 (1988).
