State v. Johnson

Decision Date22 July 1997
Docket NumberNo. 15132,15132
Citation241 Conn. 702,699 A.2d 57
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Duane B. JOHNSON.

Louis S. Avitabile, Special Public Defender, with whom, on the brief, was Meryl Anne Spat, Waterbury, for appellant (defendant).

Jack W. Fischer, Assistant State's Attorney, with whom were Mark S. Solak, State's Attorney, and, on the brief, Harry Weller, Assistant State's Attorney, Ronald G. Weller, Deputy Assistant State's Attorney, and David Scannell, Legal Intern, for appellee (State).

G. Douglas Nash, Chief of Legal Services, New Haven, and Gerard A. Smyth, Chief Public Defender, Hartford, filed a brief for the Office of the Chief Public Defender as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, BERON, NORCOTT, KATZ, PALMER and McDONALD, JJ.

NORCOTT, Associate Justice.

The principal issue in this appeal is whether, under the circumstances of this case, felony murder can serve as the predicate murder for a capital felony conviction. The defendant, Duane B. Johnson, was charged in an amended information with felony murder in violation of General Statutes § 53a-54c, 1 capital felony in violation of General Statutes § 53a-54b(1), 2 burglary in the first degree in violation of General Statutes §§ 53a- 101(a) and 53a-8, 3 larceny in the third degree in violation of General Statutes §§ 53a-119, 53a-124(a)(2) and 53a-8, 4 and twenty counts of stealing a firearm in violation of General Statutes §§ 53a-212 and 53a-8. 5 The charges against the defendant stemmed from his involvement in the burglary of a sporting goods store that culminated in the shooting death of Connecticut State Trooper Russell Bagshaw. Following a jury trial, the defendant was convicted on all counts. He appealed to this court from the judgment of conviction pursuant to General Statutes § 51-199(b)(3). We reverse the judgment of conviction on the capital felony count and remand the case to the trial court with direction to vacate the capital felony conviction and to resentence the defendant on the felony murder conviction, and we affirm the judgment of conviction on the remaining counts.

The jury could have reasonably found the following facts. On June 5, 1991, sometime after midnight, the defendant and his brother, Terry Johnson, broke into the Land and Sea Sports Center (sporting goods store) in North Windham. Once inside, Terry loaded a nine millimeter semi-automatic pistol and handed the pistol out the window to the defendant. Terry also passed approximately twenty shotguns and rifles, boxes of ammunition and other merchandise through the window to the defendant, who carried them to Terry's car.

Meanwhile, Bagshaw was patrolling the area near the sporting goods store in his police cruiser. At approximately 3 a.m., the defendant saw Bagshaw's cruiser approaching the sporting goods store and warned Terry Johnson. Terry then climbed out the store's window, grabbed the loaded pistol and waited near the corner of the building. As Bagshaw drove up the driveway toward the store, Terry began shooting at the cruiser. His gunshots hit and fatally wounded Bagshaw. The defendant and Terry then fled. Additional facts will be provided where necessary.

After his conviction, but before sentencing, the defendant filed a motion in arrest of judgment pursuant to Practice Book § 905, 6 claiming that a charge of capital felony based on the commission of a felony murder is not a cognizable offense under the laws of Connecticut. After the state declined to seek the death penalty on the capital felony conviction, the trial court denied the motion and sentenced the defendant to life imprisonment without the possibility of parole on the capital felony conviction, ten years imprisonment on the burglary count, five years imprisonment on the larceny count and three years imprisonment on each of the twenty counts of stealing a firearm. The defendant's sentences on the burglary, larceny and firearms counts were to run concurrently with the capital felony sentence. No sentence was imposed on the defendant for the felony murder conviction, which was merged with the capital felony conviction in order to avoid exposing the defendant to double jeopardy. The total effective sentence was life imprisonment without the possibility of parole.

On appeal, the defendant claims that the trial court improperly denied: (1) his motion in arrest of judgment; 2) his motion to suppress two oral statements that the defendant had made before having been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) his motion to suppress his two written statements, which, although preceded by Miranda warnings, were the product of the allegedly illegally obtained oral statements. After the parties filed their briefs in the present appeal, we decided a similar case, State v. Harrell, 238 Conn. 828, 681 A.2d 944 (1996). In Harrell, we held that the term "murder" as used in the capital felony statute, § 53a-54b, could be applied only to intentional murder. Id., at 839, 681 A.2d 944. Consequently, this court concluded that, under the circumstances of that case, the defendant's conviction for two counts of arson murder under General Statutes § 53a-54d 7 could not serve as the predicate murders for a charge of capital felony. Id.

In light of our decision in Harrell, we ordered supplemental briefing in the present appeal limited to the following three issues: "(1) Under the circumstances of this case, as a matter of statutory construction, can the defendant's conviction for felony murder under General Statutes § 53a-54c properly serve as the predicate murder for purposes of the capital felony statute, General Statutes § 53a-54b? (2) What effect, if any, does this court's decision in State v. Harrell, [supra] 238 Conn. 828, 681 A.2d 944 ... have on the resolution of this question? (3) [What are] the possible constitutional consequences, if any, under the federal and state constitutions of a construction of § 53a-54b that provides for a conviction of felony murder as the predicate murder under § 53a-54b?" We conclude that, under the circumstances of this case, the defendant's conviction for felony murder under § 53a-54c cannot serve as the predicate murder for capital felony under § 53a-54b. The trial court, therefore, improperly denied the defendant's motion in arrest of judgment. As for the defendant's remaining claims, we conclude that the trial court properly denied the defendant's motion to suppress his oral and written statements.

I

The defendant first claims that, under the circumstances of this case, his conviction for felony murder under § 53a-54c cannot serve as the predicate murder for the crime of capital felony under § 53a-54b. In support of this argument, the defendant relies on our recent holding in State v. Harrell, supra, 238 Conn. at 839, 681 A.2d 944, that an unintentional murder cannot serve as the predicate murder for capital felony. The defendant argues that Harrell controls the resolution of the present case because his conviction for felony murder was based on the claim that Bagshaw was killed in the course of the burglary, not on any claim that the defendant intentionally murdered, or aided in the murder of, Bagshaw. The state seeks to distinguish Harrell on the ground that the present case does involve an intentional murder, whereas Harrell did not. We agree with the defendant that Harrell is dispositive and conclude that, under the circumstances of this case, the defendant's felony murder conviction cannot serve as the predicate murder for capital felony.

In Harrell, we were presented with the question of whether the term "murder" as used in § 53a-54b included unintentional as well as intentional murder. 8 The state argued that, in the absence of any language limiting the term solely to intentional murder, "murder" refers to the three types of murder recognized in the penal code: intentional murder under General Statutes § 53a-54a, felony murder under § 53a-54c, and arson murder under § 53a-54d. Id., at 831, 833-34, 681 A.2d 944. The defendant argued that, in light of the legislative history of the capital felony statute, the term "murder" refers only to intentional murder under § 53a-54a. Id., at 834, 681 A.2d 944. When the legislature enacted the present capital felony statute in 1973, it contemporaneously repealed the felony murder statute, leaving intentional murder as the only form of murder expressly recognized under the penal code. Id., at 835-36, 681 A.2d 944. The defendant argued that, when the legislature later enacted the present felony murder statute in 1974, it did not evince an intent to expand the scope of the capital felony statute to include felony murder as a predicate offense. Id., at 836, 681 A.2d 944. In the alternative, the defendant argued that the term "murder" was at least ambiguous and, thus, should be construed in favor of the defendant. Id., at 831, 681 A.2d 944.

To determine whether the term "murder" in the capital felony statute includes unintentional as well as intentional murder, we employed the familiar principles of statutory construction. "Statutory construction is a question of law and therefore our review is plenary.... [O]ur fundamental objective 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.... We are also mindful of well established principles that govern the construction of penal statutes. Courts must avoid imposing criminal liability where the legislature has not expressly so intended.... Accordingly, [c]riminal statutes are not to be read more broadly...

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28 cases
  • State v. Lutters
    • United States
    • Connecticut Supreme Court
    • July 20, 2004
    ...State v. Coltherst, 263 Conn. 478, 500, 820 A.2d 1024 (2003), citing State v. Harrell, supra, 839. Similarly, in State v. Johnson, 241 Conn. 702, 712, 699 A.2d 57 (1997), we rejected the state's claim that the defendant's conviction of felony murder could serve as the predicate for capital ......
  • State v. Small
    • United States
    • Connecticut Supreme Court
    • July 29, 1997
    ...may be predicated only upon a conviction for intentional murder. This issue is controlled by our decision in State v. Johnson, 241 Conn. 702, 699 A.2d 57 (1997), and, in accordance with that decision, the defendant's capital felony conviction is vacated. Because the two counts of felony mur......
  • State v. Turner
    • United States
    • Connecticut Supreme Court
    • January 20, 2004
    ...mixed question of law and fact," over which our review is de novo. (Internal quotation marks omitted.) Id.; see also State v. Johnson, 241 Conn. 702, 719, 699 A.2d 57 (1997) ("historical facts surrounding custody reviewed for clear error; ultimate determination of custody reviewed de With t......
  • State v. Amado
    • United States
    • Connecticut Court of Appeals
    • October 6, 1998
    ...murder convictions were proper and that they provided a sufficient predicate for his capital felony conviction. In State v. Johnson, 241 Conn. 702, 721, 699 A.2d 57 (1997), our Supreme Court reversed a capital felony conviction where felony murder was the predicate. The Johnson court relied......
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2 books & journal articles
  • Significant Developments in Criminal Law 1996-1997
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 72, 1997
    • Invalid date
    ...justice. 1. 238 Conn. 828, 681 A.2d 944 (1996). 2. CONN. GEN. STAT. §53a-54b(8). 3. Harrell, supra note I at 831. 4. Id. at 838. 5. 241 Conn. 702, 699 A.2d 57 6. Harrell, supra note I at 828. 7. Johnson, supra note 5 at 712. 8. 242 Conn. 93, 700 A.2d 617 (1997). 9. 242 Conn. 409, 699 A.2d 9......
  • 1997 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 72, 1997
    • Invalid date
    ...McDonald concurred in "the result" that the dissent would reach. Id. at 723. The case concerned the late filing of a habeas petition. 20.241 Conn. 702, 699 A.2d 57 (1997) (en banc). 21.State v. Harrell, 238 Conn. 828, 681 A.2d 944 (1996). 22.241 Conn. at 721-24. 23.242 Conn. 93, 123-25, 700......

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