State v. Rollinson

• Decision Date: 02 June 1987
• Docket Number: No. 12814,12814
• Citation: 203 Conn. 641,526 A.2d 1283
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jeffrey ROLLINSON.

Page 1283

526 A.2d 1283

203 Conn. 641

STATE of Connecticut v. Jeffrey ROLLINSON.

No. 12814.

Supreme Court of Connecticut.

Argued April 8, 1987.

Decided June 2, 1987.

T. Stevens Bliss, Special Public Defender, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on the brief, were Raymond Doyle, Jr., and Linda Knight, Asst. State's Attys., and Alice Osedach, Legal Intern, for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and HULL, JJ.

PETERS, Chief Justice.

The principal issues on this appeal are the validity of the information charging the defendant, Jeffrey Rollinson, with having committed the crime of murder in violation of General Statutes § 53a-54a, ¹ and the admissibility at his trial of inculpatory statements that he made while he was a patient in a hospital alcohol detoxification unit. The trial court, after a jury verdict of guilty as charged, sentenced the defendant to incarceration for a term of twenty-five years. The defendant has appealed on multiple grounds. We find no error.

The jury could properly have found the following facts. On the morning of March 18, 1983, the body of Hazel Clinkard was found in the bedroom of her Bethel home. The victim had been brutally beaten and repeatedly stabbed. Near the body, the police found a blood-stained warm-up jacket worn by the assailant during the attack. This jacket belonged to the defendant, and it had been seen in the car the defendant had been driving the previous day.

During much of that previous day, March 17, the defendant had been drinking at various bars with Raymond Pannozzo and Jerry Lee Forker, both of whom lived in the victim's home. Pannozzo had told the defendant that the victim kept money in her bedroom. Pannozzo and Forker had invited the defendant to spend the night at the Clinkard home and the front door was, by agreement, left unlocked for the defendant when Pannozzo returned home alone. Pannozzo exchanged a few words with the victim in the early hours of March 18 and discovered her body later that morning.

On March 23, 1983, the defendant voluntarily admitted himself to the alcohol detoxification unit at Danbury Hospital. While there, he made a number of incriminating statements to members of the staff and to other patients. Upon his discharge, he went, in mid-April, to search a brook into which he thought he might have thrown a paring knife that might have been used in the slaying of the victim. A police scuba diver subsequently discovered such a knife in that location, and the knife was identified at trial as resembling one that was missing from the victim's home.

In this appeal from his conviction of murder, the defendant has raised ten issues that can conveniently be considered in four groupings. He maintains that the trial court erred: (1) in sustaining the validity of the information by which he was charged; (2) in two evidentiary rulings permitting the jury to hear incriminatory and prejudicial statements; (3) in improperly instructing the jury on reasonable doubt, motive and intent; and (4) in denying his post-trial motion for acquittal. We find no reversible error with regard to any of the defendant's claims.

I

The defendant has launched a twofold attack on the validity of the information by which he was charged with the crime of murder. Each of these claims of invalidity arises out of the 1983 enactment of General Statutes § 54-46a. ² This statute was enacted to implement the provisions of article XVII of the amendments to the Connecticut constitution, which substituted a probable cause hearing for the grand jury indictment formerly required before a person could be held to answer for a crime punishable by death or life imprisonment. Conn. Const., amend. XVII. ³ The defendant maintains that: (1) § 54-46a cannot be applied in his case without violating the prohibition against ex post facto laws contained in article one, § 10, of the United States constitution; ⁴ and (2) § 54-46a cannot be applied in any case without violating the prohibition against the separation of powers contained in article second of the Connecticut constitution. ⁵ These claims must be addressed separately.

A

The rules of law that underlie the defendant's claim under the United States constitution are well established. The prohibition of ex post facto laws forbids the enactment of "any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867)." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); see also W. LaFave & A. Scott, Criminal Law (1972) § 12; 2 R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law: Substance and Procedure (1986) § 15.9(b); L. Tribe, American Constitutional Law (1978) §§ 10-2, 10-3. Under the applicable federal cases, "two critical elements must be present for a criminal or penal law to be ex post facato: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." (Emphasis in original.) Weaver v. Graham, supra, at 29, 101 S.Ct. at 964.

Retroactivity, the first of these elements, is not an issue in this case. The crime of murder that the defendant was alleged to have committed occurred on March 18, 1983. Although the constitutional amendment abolishing the indicting grand jury had been approved by the voters the previous fall, § 54-46a, the statute that was required to implement that amendment, did not take effect until May 26, 1983. Section 54-46a repealed the prior statutory provision for grand jury indictments contained in General Statutes § 54-45 and prescribed the procedures by which probable cause hearings would be conducted. We held, in State v. Sanabria, 192 Conn. 671, 691, 474 A.2d 760 (1984), that "that portion of the [constitutional] amendment establishing probable cause hearings did not take effect until the enabling legislation took effect on May 26, 1983." On its effective date, "all persons then being held for crimes punishable by death or life imprisonment, who had not yet been indicted by grand jury became entitled to a probable cause hearing before their cases went to trial, regardless of the dates on which they were arrested or charged by information." (Emphasis in original.) Id., at 699, 474 A.2d 760. The defendant was charged with murder on July 13, 1984, and was, on September 6, 1984, afforded a hearing in probable cause pursuant to § 54-46a. It is therefore undisputed that, although the defendant was charged with the commission of a crime that antedated the effective date of § 54-46a, his prosecution has been governed retrospectively by the new procedures mandated by that statute.

The crucial question is that posed by the second element of the ex post facto test: does the substitution of a probable cause hearing for a grand jury indictment unconstitutionally "disadvantage the offender affected by it?" ⁶ The defendant maintains that this question should be answered in the affirmative because of several salient differences between grand jury proceedings and probable cause hearings: (1) the vesting of decision-making authority in a grand jury consisting of peer group representatives of the community at large in contrast to the determination of probable cause by a single judge; (2) the absence of counsel for the state, and for the defendant, at grand jury proceedings, in contrast to their affirmative role in probable cause hearings; (3) and the grand jury's discretion to gather information without regard to the formal rules of evidence, in contrast to the evidentiary rules that govern probable cause hearings; and (4) the confidentiality afforded by a grand jury proceeding, in contrast to the public nature of a probable cause hearing. The defendant argues that these distinctions present significant disadvantages that are not offset by his right, at his probable cause hearing, to have counsel present, to be informed of the basis of the charge against him and to present rebuttal evidence. We are unpersuaded.

The changes embodied in amendment seventeen to article first, § 8, of the Connecticut constitution, as implemented by § 54-46a, represent the collective judgment of the legislature and of the voters that indicting grand juries did not provide adequate safeguards for those accused of having committed serious crimes. As we noted in State v. Mitchell, 200 Conn. 323, 326-27, 512 A.2d 140 (1986), "[a]lthough originally conceived as a shielding device to protect individuals from unfounded prosecutions; State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667 (1970); the grand jury system came to be widely criticized for its secret operation and its ex parte nature. See Spinella, Conn.Crim.Proc. (1985) pp. 272-73; Berdon, 'Connecticut Grand Juries: The Case for Reform,' 54 Conn.B.J. 8, 9-16 (1980); Goldstein, 'The State and the Accused: Balance of Advantage in Criminal Procedure,' 69 Yale L.J. 1165, 1171 (1960)." The grand jury system precluded the accused person from effective participation in its processes and precluded judicial review of the evidentiary basis of any indictment that the grand jury might return. State v. Mitchell supra, 200 Conn. at 327, 512 A.2d 140, and cases there cited. These defects in the grand jury system do not become virtues simply because the defendant has labeled them as such. The advantages of an adversarial evidentiary hearing, with the assistance of counsel, are similarly not to be deprecated just because a hearing in probable cause is necessarily more limited in scope than a full trial on the merits. A defendant against whom a grand jury returns a true bill is afforded no more privacy than a defendant who is held for trial after a hearing in probable cause. For all of these reasons, the substitution of a fair and open hearing by a...