State v. Brown

• Decision Date: 26 January 1971
• Citation: 279 A.2d 554,160 Conn. 346
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Chester BROWN.

Page 554

279 A.2d 554

160 Conn. 346

STATE of Connecticut v. Chester BROWN.

Supreme Court of Connecticut.

Jan. 26, 1971.

Igor I. Sikorsky, Jr., Sp. Public Defender, for appellant (defendant).

Arlen D. Nickowitz, Asst. State's Atty., with whom, on the brief, was Joseph T. Gormley, Jr., State's Atty., for appellee (state).

Before ALCORN, C.J., and HOUSE, COTTER, RYAN and SHAPIRO, JJ.

HOUSE, Associate Justice.

On September 29, 1961, the defendant was tried by a jury in the Superior Court for Fairfield County on the charge of rape. He did not testify and the court charged the jury in accordance with the then common practice and existing law that once the state had presented a prima facie case the failure of the defendant to testify becomes a fact which the jury are entitled to consider. See State v. Nelson, 139 Conn. 124, 127, 90 A.2d 157. The defendant took no exception to the charge, was found guilty and sentenced. Thereafter followed a number of habeas corpus petitions and an appeal. One of the issues raised in habeas corpus proceedings concerned an alleged denial of the defendant's opportunity to appeal. On June 10, 1965, a judge of the Superior Court in the course of denying a habeas corpus petition filed by the defendant added language purportedly granting him a right to appeal from his conviction. An appeal was thereafter taken and in State v. Brown, 157 Conn. 398, 254 A.2d 570, this court dismissed the appeal on the ground that because the trial court had dismissed the habeas corpus petition it lacked authority to grant a late appeal. The dismissal was without prejudice to the defendant's right by habeas corpus proceedings to seek a determination of the merits of his claim that he had been improperly denied a right of appeal. Another habeas corpus petition was brought by the defendant and the Superior Court then found that the defendant had been denied his constitutional right of appeal from his 1961 conviction. The court granted the defendant the right to appeal from his conviction although it purported to limit the exercise of this right to consideration only of appealable issues which might have existed if the appeal had been taken in regular course following the conviction. The present appeal from the 1961 conviction was then taken and an assignment of errors filed on December 2, 1969. The only assignment of error is that the court in charging the jury in 1961 made reference to the failure of the defendant to testify.

Between the 1961 trial and the 1969 appeal the United States Supreme Court on April 28, 1965, decided the case of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. This case overruled the earlier law enunciated in 1908 in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, and established the rule that it is reversible error for a court to charge a jury that it may take into consideration the failure of an accused to testify. The Griffin case did not decide whether the new rule applied only prospectively or had retroactive effect. Thereafter, on December 13, 1965, the United States Supreme Court in a per curiam decision remanded to the Supreme Court of Ohio the case of O'Connor v. Ohio, 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337, 'for further proceedings in light of Griffin v. California, 380 U.S. 609 (85 S.Ct. 1229, 14 L.Ed.2d 106).' The O'Connor case involved the constitutionality of a nontestifying-defendant comment. Thereafter, on January 19, 1966, the United States Supreme Court decided the case of Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453. Citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the court said (382 U.S. p. 419, 86 S.Ct. p. 467): 'We have considered the purposes of the Griffin rule, the reliance placed upon the Twining doctrine, and the effect upon the administration of justice of a retrospective application of Griffin. After full consideration of all the factors, we are not able to say that the Griffin rule requires retrospective application.' A footnote to the Tehan decision (p. 409, 86 S.Ct. 459) expressly disclaimed any intention on the part of the court to decide whether the Griffin rule was applicable to cases pending on review at the time that case was decided. The opinion (p. 409, 86 S.Ct. p. 461) noted that 'the original Ohio judgment of conviction in this case became final long before Griffin v. State of California was decided by this Court', and then subjoined the following footnote: 'Nor is there any question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced. Cf. O'Connor v. Ohio, * * * (382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337). The precise question is whether the rule of Griffin v. State of California is to be applied to cases in which the judgment of conviction was rendered, the availability of appeal exhausted, and the time for certiorari finally denied, all before April 28, 1965.'

Subsequently, on November 14, 1966, the United States Supreme Court considered the second appeal in O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189. In reversing the judgment of the Supreme Court of Ohio the court stated: 'The State does not contest the fact that the prosecutor's remarks violated the constitutional rule announced in Griffin. Moreover, it is clear that the prospective application of that rule, announced in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, does not prevent petitioner from relying on Griffin since his conviction was not final when the decision in Griffin was rendered. Indeed, in Tehan we cited our remand of petitioner's case as evidence that Griffin applied to all convictions which had not become final on the date of the Griffin judgment. 382 U.S. at 409 n. 3, 86 S.Ct., at 461.'

In the light of the Tehan footnote and the language in the second O'Connor decision we followed the rule laid down in Griffin and found reversible error in the cases of State v. Annunziato, 154 Conn. 41, 221 A.2d 57, State v. Vars, 154 Conn. 255, 224 A.2d 744, and State v. Wilkas, 154 Conn. 407, 225 A.2d 821. In all of these cases the usual pre-Griffin charge had been given and in each instance an appeal was pending at the time the Griffin case was decided. The appellant in the present appeal relies on the Griffin rule as applied in these cases and the claim that since at the time the Griffin case was decided his conviction was not 'final' as that term was used in the second O'Connor case his conviction should be reversed. Under the circumstances in which the defendant's late appeal was granted it is clear that although his trial had been completed in 1961 before the Griffin decision was released, nevertheless, because of the appeal permitted in 1969, as a result of the habeas corpus proceedings, his conviction was not 'final.' Nor could the trial court properly limit the grounds upon which the appeal might be predicated. Fredericks v. Reincke, 152 Conn. 501, 508, 208 A.2d 756.

Tehan and the second O'Connor case were two of the earliest of a great many recent decisions by the United States Supreme Court concerning the principles of retroactivity in criminal cases. We have analyzed the decisions of the United States Supreme Court since those two cases were decided in 1966, and have found no later cases which have held that the fact that a case was still on direct appeal was of the slightest significance.

Several cases have held that newly enunciated constitutional principles are fully retroactive in their application. These include the following: Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, applying to the rule in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, concerning the state's efforts to find witnesses for the defense; Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, applying to the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, concerning the confession of a codefendant; Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, applying to Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, concerning double jeopardy.

Another line of cases has held that the new principle applied only to those cases in which the proscribed act took place after the date of the decision enunciating the new rule. These include Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, applying the United States v. Wade rule, in 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, in regard to the presence of counsel at police lineups; DeStefano v. Woods, 394 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, applying to Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, referring to the right to a jury trial in misdemeanor (Duncan) and contempt (Bloom) cases; Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, applying to McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, concerning the voluntariness of guilty pleas; and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, applying to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, concerning eavesdropping. Even two earlier decisions of major significance, Escobedo v. Illinois, 378 U.S. 478, L.Ed.2d 694, were held to apply only to trials starting after the dates of those decisions, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

This apparent abandonment by the United States Supreme Court of the O'Connor 'final conviction' line of demarcation in favor of full retroactivity or prospective operation only is confirmed by the express language of two cases decided since that decision. In Stovall v. Denno, ...