242 Conn. 409 | Conn. | 1997
Opinion
In an amended information filed on January 3, 1997, the state charged the defendant, Timothy Solek, with five criminal offenses. Count one charged the defendant with capital felony (murder committed in the course of the commission of a sexual assault in the first degree) in violation of General Statutes § 53a-54b (7).
Before addressing the substantive issue in this appeal, we set forth the relevant factual circumstances
The trial court, Reman, J., granted the defendant’s motion for a separate probable cause hearing and for severance of the case against him from the state’s case against Smith. As a result, two trial court judges conducted separate hearings in probable cause for the defendant and for Smith. Because of a potential problem under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the defendant’s confession was not admitted as evidence in Smith’s probable cause hearing, and, likewise, Smith’s confes
On December 11, 1996, the state filed an amended information, charging the defendant with six criminal offenses.
The trial court, Hartmere, J., held a hearing on, among other things, the defendant’s motion for a bill of particulars.
On January 3, 1997, the state filed the five count amended information that is involved in this appeal.
After substantial argument, the trial court, Hartmere, J., dismissed the capital felony count of the January 3, 1997 amended information. In its appeal from the trial court’s decision, the state argues that count one of the
I
The first basis upon which the trial court dismissed count one of the January 3, 1997 substitute information was Practice Book § 815 (2). Practice Book § 815 sets forth nine separate bases upon which a criminal defendant may ground a pretrial motion to dismiss. See footnote 6 of this opinion. Subdivision (2) of § 815 affords a criminal defendant the right to have an information dismissed prior to trial because of “[d]efects in the information including failure to charge an offense . . . .” (Emphasis added.) The trial court determined that the charging language of count one was defective because it failed to state a cognizable offense. We have not had occasion to address the standard of appellate review applicable to a trial court determination, pursuant to § 815 (2), that an information, or, as in this case, one count of an information, failed to charge an offense. Although several of the bases for dismissal in § 815 are grounded in statutes; see, e.g., General Statutes §§ 54-56 (insufficiency of evidence or cause), 54-193 (statute of limitations), 54-82c (speedy trial); and at least one of those determinations is discretionary in nature; see General Statutes § 54-56; we conclude that atrial court’s dismissal of an information in whole or in part, pursuant to § 815 (2), because it failed to charge an offense amounts to a determination that the facts alleged in the information do not satisfy applicable statutory requirements. Where, as in this case, the question is a matter of statutory construction rather than of factual sufficiency, this determination constitutes a question of law that is reviewed de novo.
“Our fundamental objective when construing a statute is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.)
Section 53a-54b provides in relevant part that “[a] person is guilty of a capital felony who is convicted of . . . murder committed in the course of the commission of sexual assault in the first degree . . . .” In 1980, the legislature added this offense to the list of capital felonies in § 53a-54b. Public Acts 1980, No. 80-335 (P.A. 80-335). A review of the legislative history of P.A. 80-335 reveals that the legislature did not specifically contemplate whether its use of “murder” in the wording of the offense encompassed murder committed by an accessory as well as murder committed by a principal. Public Act 80-335 must be read, however, in light of the principle of criminal law, based both in statutory and common law, that a defendant may be convicted of a substantive offense, through the use of accessory principles of liability, even though the defendant did not actually commit the substantive offense. See General Statutes § 53a-8; State v. Hicks, 169 Conn. 581, 585, 363 A.2d 1081 (1975); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971).
The accessory statute in place in 1980, § 53a-8, provided in relevant part that “[a] person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” (Emphasis added.) General Statutes (Rev. to 1979) § 53a-8. In addition, we have stated that “[t]here is no such crime as being an accessory .... The accessory
Because these principles of accessory liability were well established when the legislature enacted P.A. 80-335, we infer that the legislature intended its use of “murder” in the wording of the offense of capital felony to encompass murder committed by an accessory as well as murder committed by a principal. We find the defendant’s alternate interpretation of § 53a-54b (7) to be unpersuasive.
The defendant argues that a defendant may be held criminally responsible for the capital felony of murder committed in the course of the commission of a sexual assault in the first degree only if the defendant, with the intent to cause the death of the victim, either: (1) intentionally causes the death of the victim in the course of a sexual assault in the first degree; or (2) intentionally aids another person and the other person, in the course
Moreover, contrary to the defendant’s alternate argument, count one of the information also provided him with sufficient notice of the crime charged. When an information “informjs] the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise,
II
The trial court’s second basis for dismissing count one of the January 3, 1997 amended information was State v. Hope, 203 Conn. 420, 524 A.2d 1148 (1987). In that case, the state charged Hope, pursuant to an accessory theory of liability, with capital felony (murder for hire) in violation of § 53a-54b (2). Id., 421. In the second count of the indictment, the state alleged that Geraldine Burke had hired John J. McGann, for his pecuniary gain, for the purpose of causing the death of her husband, Donald C. Burke. Id., 422. The second count alleged further that Donald Burke was murdered by a person or persons, including Hope, which person or persons, with intent to cause the death of Donald
As a consequence of our decision in McGann, we dismissed the state’s appeal in Hope as moot. State v. Hope, supra, 203 Conn. 425. We stated that “[a]s the state acknowledges, [Hope] can no longer be tried on a charge of capital felony murder in light of our determination that McGann was not a hired assassin under the terms of § 53a-54b (2). . . . [Hope] cannot be held liable as an accessoiy on [the capital felony] charge in the absence of evidence that anyone else committed a capital felony murder.”
The trial court in the present case concluded that these statements in Hope mandated dismissal of count one of the January 3, 1997 amended information. First, the trial court construed count one as charging the defendant with capital felony on the basis of an accessory theory of liability. Because Judge Gormley did not find probable cause with respect to Smith, the purported principal, on the charge of capital felony, the
We conclude that the trial corat’s reliance on Hope was misplaced for several reasons. First, Hope is distinguishable from the present case because Judge Gormley’s finding of no probable cause with respect to Smith on the capital felony charge is not equivalent to ora conclusion in McGann that McGann was not a hired assassin. Our conclusion in McGann was a conclusion of law that, on the basis of the evidence presented in McGann’s trial, McGann did not commit the offense of capital felony. That conclusion was binding on all lower courts. Judge Gormley’s finding of no probable cause with respect to Smith on the capital felony charge, however, was binding only with respect to Smith. Judge Gormley found that there was no probable cause to believe, on the basis of the evidence presented to him, that Smith had committed the offense of capital felony. The only binding effect that finding had was that the state could not thereafter charge Smith with capital felony unless, at a later date, it was able to persuade a judge that probable cause existed to believe that Smith had committed capital felony. See General Statutes § 54-46a.
Moreover, even if we were to assume for the sake of argument that Judge Gormley’s finding of no probable cause with respect to Smith on the capital felony charge had the same preclusive effect that our McGann finding had in Hope, Hope would operate to preclude the state from prosecuting the defendant for capital felony only if (1) the state’s entire case against the defendant was
First, the state’s case against the defendant on the capital felony charge is not predicated solely on an accessory theory of liability. Rather, only one element of the state’s case against the defendant, the murder element, is dependent upon accessory liability. Although Judge Gormley found no probable cause with respect to Smith on the capital felony charge, he did find probable cause with respect to Smith on the murder charge.
In addition, the evidence that the state intended to produce in its case against the defendant was different from the evidence that the state produced in Smith’s probable cause hearing. Specifically, in its case against the defendant, the state intended to introduce into evidence the defendant’s confession, which, because of a potential problem under Bruton v. United States, supra, 391 U.S. 123, had not been produced for Judge Gormley at Smith’s probable cause hearing. In Smith’s probable cause hearing, the state introduced into evidence only Smith’s confession, which differed in various aspects from the defendant’s confession. Thus, in the state’s case against the defendant, the state intended to introduce evidence that Judge Gormley did not have the benefit of hearing when he made his probable cause decision with respect to Smith. For the foregoing reasons, State v. Hope, supra, 203 Conn. 420, is not applicable to the present case.
Ill
Finally, we deem it necessary to address what appears to be one other basis upon which the trial court dismissed count one, which may become relevant on
The trial court dismissed count one, in part, because the court found the count, and the state’s representations concerning it, to be confusing and vague on the question of whether count one charged the defendant as a principal or as an accessory, an issue that was relevant to the disposition of the defendant’s motion. We conclude, however, that the trial court’s concern with disposing of the defendant’s motion prior to trial was misplaced.
The defendant has not cited and we have found no authority aside from the constitutionally required hearing in probable cause; see General Statutes § 54-46a; that entitles a defendant to a pretrial judicial determination of ineligibility for the death penalty. Moreover, “[u]nder Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.” (Internal quotation marks omitted.) State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991); see also State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979). Because the defendant was not entitled
On remand, after the close of evidence, the trial court will have to determine whether a jury instruction on accessory liability is warranted in view of the evidence presented during the trial and the state’s theory of liability in the case. Furthermore, if the defendant is convicted of capital felony and the state seeks the death penalty, the trial court will have to fashion a jury instruction, pursuant to § 53a-46a, that will allow the penalty phase jury to determine whether the defendant’s participation in the capital felony was so minor as to constitute a mitigating factor that precludes the imposition of the death penalty.
The dismissal of count one of the January 3, 1997 amended information is reversed and the case is remanded to the trial court with direction to reinstate that count and for further proceedings.
In this opinion the other justices concurred.
General Statutes § 53a-54b provides in relevant part: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety ... (7) murder committed in the course of the commission of sexual assault in the first degree . . . .”
General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”
General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. . . .”
General Statutes § 53a-54c provides in relevant part: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . .
General Statutes § 53a-70 provides in relevant part: “Sexual assault in the first degree: Class B felony: Nonsuspendable sentences, (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, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present. . . .”
General Statutes § 53a-71 provides in relevant part: “Sexual assault in the second degree: Class C felony: Nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (2) such other person is mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse; or (3) such other person is physically helpless . . . .”
Practice Book § 815 provides: “ — Matters To Be Raised
“The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information:
“(1) Defects in the institution of the prosecution including any grand jury proceedings;
“(2) Defects in the information including failure to charge an offense;
“(4) Absence of jurisdiction of the court over the defendant or the subject matter;
“(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial;
“(6) Previous prosecution barring the present prosecution;
“(7) Claim that the defendant has been denied a speedy trial;
“(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid; or
“(9) Any other grounds.” (Emphasis added.)
General Statutes § 52-265a provides: “Direct appeal on questions involving the public interest, (a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.
“(b) The Chief Justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
“(c) Upon certification by the Chief Justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the Chief Justice, who shall thereupon call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal.
“(d) The Chief Justice may malee orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”
Practice Book § 4180 provides: “Application for Certification Pursuant to General Statutes § 52-265a — Unavailability of Chief Justice
“If the chief justice is unavailable or disqualified, the most senior associate justice who is available and is not disqualified shall rule on the application for certification.”
In count one, the state charged the defendant with capital felony (murder committed in the course of a sexual assault in the first degree), and in count two charged him with murder. The remaining counts charged the defendant with felony murder, sexual assault in the first and second degrees and unlawful restraint in the first degree.
The defendant had also filed several motions, eight of which related to the imposition of the death penalty in this case. The defendant had filed a motion, dated October 29, 1996, for a pretrial determination that he was ineligible for the death penalty. In addition, the defendant had filed six
The January 3, 1997 amended information contained only five counts because the state had abandoned its charge of unlawful restraint in the first degree. The wording of the murder, felony murder and sexual assault counts remained the same.
The state’s attorney stated: “Our position is [that] on the capital felony the defendant is a principal, because the underlying portion of that crime is the crime of sexual assault in the first degree. There has never been any claim by the defense that we’re alleging other than the fact [that] the defendant was a principal to that particular crime, that in the course of that sexual assault there was an intentional murder as opposed to an accidental murder, an intentional murder committed by both people, although the actual person who killed her was Mr. Smith, as we’ve acknowledged, by the strangulation. We allege that the activity of the defendant was set forth with sufficient precision to inform the defendant of the nature of the proceedings in order to prepare a defense at this particular time.”
In Hope, the state, in effect, conceded that it had no additional evidence that McGann had committed capital felony other than the evidence it had presented in McGann’s trial. State v. Hope, supra, 203 Conn. 423-24.
General Statutes § 54-46a provides: “Probable cause hearing for persons charged with crimes punishable by death or life imprisonment, (a) No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable
“(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court, finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the courl determines that such evidence would be sufficient to rebut the finding of probable cause.
“(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense." (Emphasis added.)
On April 4, 1997, the trial court filed an articulation of its alternative basis for dismissing count one. In that document, the trial court stated: “As the state was informed on numerous occasions during the proceedings, the language in the pleading directly impacted other motions on which the court had ruled and was attempting to rule, including the disproportionality argument contained in the motion for pretrial judicial determination that the defendant [is] ineligible for death penalty. While the state steadfastly maintained that the defendant was charged as a principal despite utilizing the charging language from the accessory statute, this court could not render a reasoned decision. . . . Despite the vagueness of the capital felony charge in count one, the state refused to specify its theory of liability. This court believes that the defective pleading of count one mandated its dismissal pursuant to Practice Book § 815 (2).”
General Statutes § 53a-46a provides in relevant part: “Imposition of sentence for capital felony. Hearing. Special verdict. Mitigating and aggravating factors. Factors barring death sentence, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, tire judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) exists. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state. . . .
“(g) If the jury or, if there is no jury, the court finds that (1) any of the factors set forth in subsection (h) exist, or (2) none of the aggravating factors set forth in subsection (i) exists or (3) one or more of the aggravating factors set forth in subsection (i) exist and one or more mitigating factors exist, but the one or more aggravating factors set forth in subsection (i) do not outweigh the one or more mitigating factors, the court shall impose a sentence of life imprisonment without the possibility of release.
“(h) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that at the time of the offense (1) he was under the age of eighteen years or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (4) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(i) The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a.” (Emphasis added.)