State v. Bell

• Decision Date: 27 December 2011
• Docket Number: No. 18715.,18715.
• Citation: 33 A.3d 167,303 Conn. 246
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Arnold BELL.

303 Conn. 246

33 A.3d 167

STATE of Connecticut

v.Arnold BELL.

No. 18715.

Supreme Court of Connecticut.

Argued April 25, 2011.Decided Dec. 27, 2011.

West Codenotes

Recognized as Unconstitutional

C.G.S.A. § 53a–40(h) Jeffrey C. Kestenband, special public defender, with whom was William H. Paetzold, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Gary Nicholson, senior assistant state's attorney, and Kevin Doyle, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

PALMER, J.

The defendant, Arnold Bell, was convicted, following a jury trial, of assault in the first degree in violation of General Statutes § 53a–59 (a)(5), carrying a pistol without a permit in violation of General Statutes (Rev. to 2001) § 29–35(a), and criminal possession of a pistol in violation of General Statutes (Rev. to 2001) § 53a–217c (a)(1). After further findings by the jury on a second part of the information and a subsequent hearing by the court, the trial court enhanced the defendant's sentence for being a persistent dangerous felony offender in violation of General Statutes (Rev. to 2001) § 53a–40,¹ and for committing a class A, B or C felony with a firearm in violation of General Statutes § 53–202k. The defendant appealed directly to this court from the judgment of conviction, claiming, inter alia, that the trial court had violated his constitutional rights to due process and a jury trial because the court, rather than the jury, found that the state had established the necessary factual predicate for his sentence enhancement under § 53a–40 (h). See State v. Bell, 283 Conn. 748, 752–53, 931 A.2d 198 (2007). This court concluded that § 53a–40 (h) was unconstitutional to the extent that it required the trial court to make the requisite finding, that is, that the defendant's extended incarceration would best serve the public interest. See id., at 810, 931 A.2d 198. We further determined that the legislature would have intended that the remainder of the statute continue to operate independently with the jury as the fact finder on the issue of whether extended incarceration would best serve the public interest. See id., at 811–12, 931 A.2d 198. Accordingly, we reversed that portion of the judgment and remanded the case to the trial court for a new sentencing proceeding at which the jury would make the requisite finding. Id., at 812–13, 931 A.2d 198. On remand, the jury found that extended incarceration of the defendant would best serve the public interest, and the trial court again imposed an enhanced sentence pursuant to § 53a–40 (h). The defendant then filed this appeal,² claiming that the trial court improperly (1) denied his motion to dismiss the second part of the information on the ground that the retroactive application to him of the constitutional gloss that this court placed on § 53a–40 (h) in Bell violated the ex post facto clause of the United States constitution,³ (2) construed the term “public interest,” as used in § 53a–40 (h), to exclude considerations of the costs of incarceration, (3) precluded the defendant from introducing expert testimony about his anticipated release date from a concurrent federal sentence, and (4) admitted evidence of the details of the victim's injuries. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. The defendant was convicted of assault in the first degree, carrying a pistol without a permit, and criminal possession of a pistol in connection with the shooting of Robert Fumiatti, a New Haven police officer, on June 13, 2002. Id., at 751–52, 755, 931 A.2d 198. After the jury returned its guilty verdict, the state presented its evidence on the second part of the information, in which the state charged the defendant with being a persistent dangerous felony offender because, prior to his conviction in the present case of assault in the first degree, he had been convicted of robbery in the first degree. Id., at 786, 931 A.2d 198. The jury found that the state had proved the two convictions and that the defendant was a persistent offender within the meaning of § 53a–40. See id., at 786–87, 931 A.2d 198. Thereafter, the trial court, Devlin, J., conducted a hearing on the question of whether the defendant's “history and character and the nature and circumstances of [his] criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest....” General Statutes (Rev. to 2001) § 53a–40 (h). The trial court concluded that extended incarceration of the defendant would best serve the public interest and imposed a sentence of forty years on the assault charge, effectively doubling the otherwise prescribed maximum term of imprisonment of twenty years. ⁴ State v. Bell, supra, 283 Conn. at 787–88, 931 A.2d 198; see General Statutes (Rev. to 2001) § 53a–35a (5).

On appeal to this court, the defendant challenged the propriety of his enhanced sentence pursuant to § 53a–40 (h), claiming that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, the jury, not the trial court, was required to decide whether the defendant's extended incarceration would best serve the public interest. See State v. Bell, supra, 283 Conn. at 753, 931 A.2d 198. This court agreed with the defendant that § 53a–40 (h) was unconstitutional under Apprendi insofar as the statute does not provide that a defendant is entitled to have the jury consider the question of whether an enhanced sentence is warranted under § 53a–40 (h). See id., at 810, 931 A.2d 198. After concluding that “the legislature would have adopted [§ 53a–40 (h) ] without the requirement that the court make the requisite public interest finding”; (emphasis in original) id., at 812, 931 A.2d 198; we remedied the constitutional infirmity by excising from § 53a–40 (h) the language “ ‘the court is of the opinion that’ ”; id., at 811–12, 931 A.2d 198; and remanded the case to the trial court for “a new sentencing proceeding [at which] the jury [would] make the determination, beyond a reasonable doubt, whether, upon consideration of the relevant factors [in] § 53a–40 (h), extended incarceration [would] best serve the public interest.” Id., at 812–13, 931 A.2d 198.

On remand, a trial on the public interest issue was held before the court, Licari, J. When the jury was unable to agree unanimously on a verdict, the trial court declared a mistrial, and a new trial was ordered. Before retrial, the defendant filed a motion to dismiss the second part of the information on the ground that this court in State v. Bell, supra, 283 Conn. at 810, 931 A.2d 198, had concluded § 53a–40 (h) was unconstitutional and that “[t]he retroactive application of an unconstitutional statute to [the defendant] violates his right to due process and [is] against the imposition of ex post facto laws.” The trial court, Blue, J., denied the motion.

At trial, the state presented evidence from which the jury reasonably could have found that the defendant committed the offenses in the manner described in our opinion in State v. Bell, supra, 283 Conn. at 753–58, 931 A.2d 198. The state also presented evidence that, between 1983 and 2002, the year of his arrest in the present case, the defendant had been convicted of first degree robbery, third degree robbery, possession of narcotics, possession of narcotics with intent to sell, conspiracy to sell narcotics, possession of a firearm by a convicted felon and third degree assault, and had spent extended periods in prison. The defendant committed a number of these crimes while he was in prison, on furlough or on probation. Indeed, the defendant was on supervised release from federal prison, where he was serving a sentence for a federal firearms violation, when he shot Fumiatti.

The defendant presented evidence that the area of the city of New Haven where he lived was dangerous and that drive-by shootings were common. ⁵ A childhood friend of the defendant, Penny Toney, testified that, despite having grown up in this dangerous neighborhood, the defendant was friendly and respectful; he would ensure that she arrived home safely after block parties and dances that they had attended when they were younger; he would help neighbors carry groceries; he married his pregnant girlfriend; and he took care of their daughter, Ahmia Bell. Ahmia Bell testified that the defendant was a good father when he was not in prison. The defendant also presented evidence that he was employed when he committed the offenses at issue in the present case and that he was a good employee. Finally, the defendant adduced evidence that, while he was in prison, he had been mature, responsible, cooperative and industrious, and that, during one period of incarceration, he had attended a daily school program and had volunteered to assist other inmates.

The jury found that the state had proven beyond a reasonable doubt that the defendant's history and character and the nature and circumstances of his criminal conduct indicated that his extended incarceration would best serve the public interest pursuant to § 53a–40 (h), and the trial court, Blue, J., imposed the same sentence for the assault conviction that the court, Devlin, J., had imposed after the first trial, that is, forty years imprisonment. ⁶ This appeal followed.

I

We first address the defendant's claim that the trial court improperly denied his motion to dismiss the second part of the information because the retroactive application of this court's ruling in State v. Bell, supra, 283 Conn. at 810, 931 A.2d 198, to the defendant violates the ex post facto clause. Specifically, the defendant contends that § 53a–40 (h), as modified by this court in Bell, is inoperable because it does not provide...