State v. Dupree, 12222

Citation196 Conn. 655,495 A.2d 691
Decision Date16 July 1985
Docket NumberNo. 12222,12222
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. William DUPREE.

Julia D. Dewey, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Mary M. Galvin, Asst. State's Atty., and Eric Mogilnicki, legal intern, for appellant-cross appellee (state).

Peter A. Kelly, New Haven, for appellee-cross appellant (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

This is an appeal by the state, with the permission of the trial court, from the judgment sentencing the defendant, after conviction by a jury of two counts of arson murder in violation of General Statutes § 53a-54d, to a term of life imprisonment suspended after twenty-five years with probation for five years. The counts arose from the deaths of the defendant's former wife, Laurel Dupree, and her seven year old son, David Neal, in a fire at 414 Winthrop Avenue, New Haven, in the early morning hours of September 24, 1981. The state claims that the trial court erred in refusing to sentence the defendant in accordance with the mandate of General Statutes § 53a-54d. The defendant has filed a cross appeal claiming the trial court erred (1) in ruling that the arson murder statute is constitutional and (2) in denying the defendant's motion to suppress an out-of-court identification of the defendant by a state's witness. We find no error in either the appeal or the cross appeal.

I

We will first consider the state's appeal. The trial court, in sentencing the defendant, merged the two counts of arson murder into one count and thereafter imposed one sentence, a term of life imprisonment, to be suspended after the defendant served twenty-five years, with a period of probation of five years. The merger of the counts is not an issue in this appeal. The state, however, challenges the legality of the trial court's suspension, after twenty-five years, of the sentence of life imprisonment imposed on the defendant. It is from the judgment suspending a portion of the defendant's sentence that the state appeals.

The arson murder statute, General Statutes § 53a-54d, provides: "ARSON MURDER. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole." The state claims that the arson murder statute requires the trial court to impose a mandatory sentence of life imprisonment on the defendant without eligibility for parole and that the trial court was prohibited from suspending any portion of that sentence.

If this crime had been committed prior to July 1, 1981, the trial court could not have suspended any portion of the life sentence mandated by the arson murder statute. Before that date, lengthy felony sentences were required to be indeterminate, necessitating the imposition of a minimum and a maximum sentence. General Statutes § 53a-35(a). 1 A trial court could not suspend a portion of an indeterminate sentence since such suspension would have been contrary to the intent and purpose of indeterminate sentencing. 2 The provision of General Statutes § 53a-54d which requires that one convicted of arson murder be "punished by life imprisonment and shall not be eligible for parole" eliminated both the possibility of parole and the necessity of imposing a minimum sentence, the imposition of which would have been a futile gesture since its only purpose was to determine a date for parole eligibility. General Statutes § 54-125. Therefore, in the context of an indeterminate sentencing scheme, the arson murder statute required the imposition of a mandatory life sentence to be served in its entirety.

In the 1980 legislative session, however, the legislature passed what is now General Statutes § 53a-35a, 3 which became effective on July 1, 1981, prior to the date of this crime. This statute instituted definite sentencing and effectively eliminated parole in Connecticut. There is a presumption that the legislature knew all existing statutes and intended the effect which its action would have. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 205, 440 A.2d 286 (1982); Beccia v. Waterbury, 185 Conn. 445, 459, 441 A.2d 131 (1981). The effect of General Statutes § 53a-35a is to put the arson murder statute in the context of a definite sentencing scheme and to render the phrase "shall not be eligible for parole" in the statute meaningless. There is no reason to believe, however, that the legislature intended the entire statute to be without meaning or effect. This situation is analogous to that in which a portion of a statute is declared unconstitutional. If the statute is severable, the portion of the statute which is valid remains operative. State ex rel Bennett v. Glynn, 154 Conn. 237, 243, 224 A.2d 711 (1966). Therefore, General Statutes § 53a-54d remains effective to make arson murder a crime and to require anyone convicted of that offense to receive a life sentence. Although the legislature may have originally intended to require anyone convicted of arson murder to serve a life sentence in its entirety, the court is bound by what the legislature has in fact said and not by what it meant to say. State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). Further, the court is required to construe criminal statutes strictly against the state and in favor of the accused. State v. DeMartin, 171 Conn. 524, 544, 370 A.2d 1038 (1976); State v. Cataudella, 159 Conn. 544, 555, 271 A.2d 99 (1970). It is also a rule of statutory construction that unless there is ambiguity in the language of a statute, there is no occasion to look to the legislative intent. In re Petition of State's Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979).

There is no ambiguity in the language of the presently effective portion of the arson murder statute. It requires the trial court to impose a sentence of life imprisonment on the defendant. The trial court did in fact impose a sentence of life imprisonment. There is now nothing in the language of § 53a-54d, or in any other section of the General Statutes, which explicitly prohibits the trial court from suspending a portion of that sentence. Absent a statutory prohibition, a term of imprisonment with the execution of such sentence of imprisonment suspended after a period set by the court and a period of probation is an authorized sentence. General Statutes § 53a-28(b)(5). 4

The state argues, however, that arson murder is another form of murder and that General Statutes § 53a-54a(c) 5 requires that all forms of murder, "unless ... a capital felony," be punished as a class A felony. It further argues that General Statutes § 53a-29(a) 6 rules out probation, such as that imposed in this case, for a class A felony and that a suspended sentence, unless accompanied by a period of probation, is not an authorized sentence under General Statutes § 53a-28(b)(5). Therefore, the state concludes that the trial court, by not imposing a life sentence to be served in its entirety, imposed an illegal sentence. We disagree.

The legislature chose to insert the penalty of life imprisonment, an expressly specified sentence, directly into the arson murder statute. That expressly specified sentence contained in General Statutes § 53a-54d removed the arson murder statute from the ambit of General Statutes § 53a-54a(c), which punishes murder as a class A felony, and placed it squarely within the definition of an unclassified felony in General Statutes § 53a-25. 7 There is no statutory provision which prohibits the suspension of a portion of a sentence of imprisonment accompanied by a period of probation for an unclassified felony. The trial court, therefore, had the authority to impose the sentence which it did.

II

The defendant's initial claim on his cross appeal is that General Statutes § 53a-54d violates his right to due process of law under the fourteenth amendment to the United States constitution and article first, § 8 of the constitution of Connecticut. A party contesting a statute's constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt. Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973); Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49 (1968).

The defendant's claim appears to be that the statute, merely from proof of the underlying crime of arson, creates an irrebuttable presumption of intent to cause death, and that such intent is an element of the crime of arson murder. A statute which creates a presumption and shifts to the defendant the burden to disprove an element of the crime charged would be a violation of both the federal and state due process clauses. Due process requires that the state prove all the elements of the crime charged beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1979); In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970); State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983).

The defendant misconstrues the statute. Intent to cause death is not an element of the crime of arson murder. Arson murder has no mens rea requirement beyond that of an intention to commit the underlying crime of arson upon which the charge of arson murder is predicated. See State v. Valeriano, 191 Conn. 659, 662, 468 A.2d 936 (1983), cert. denied, --- U.S. ----, 104 S.Ct. 2351, 80 L.Ed.2d 824 (1984); State v. Young, 191 Conn. 636, 639-44, 469 A.2d...

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