State v. Brown

279 A.2d 554, 160 Conn. 346, 1971 Conn. LEXIS 690

• Court: Supreme Court of Connecticut
• Decided: January 26, 1971
• Status: Published

Opinions

House, J.

On September 29, 1961, the defendant was tried by a jury in the Superior Court in Fair-field 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. 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 (p. 419): “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) 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) noted that “the original Ohio judgment of conviction in this case became final long before Griffin v. 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. 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 . 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. 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.”

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 on 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, 392 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, 84 S. Ct. 1758, 12 L. Ed. 2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, were held to apply only to trials starting after the dates of those decisions. 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, supra, decided on June 12, 1967, the United States Supreme Court held that the principles set out in United States v. Wade, supra, and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, regarding cases involving confrontations for identification purposes conducted in the absence of counsel should have application only to confrontations occurring after the date on which the Stovall case was decided. The opinion contains the following pertinent language (p. 300): “In Tehan v. Shott, ... we thought it persuasive against retroactive application of the no-comment rule of Griffin v. California, 380 U.S. 609, that such application would have a very serious impact on the six states that allowed comment on an accused’s failure to take the stand. We said, ‘To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.’ 382 U.S. at 419. That impact is insignificant compared to the impact to be expected from retroactivity of the Wade and Gilbert rules. . . . We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive. We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable. . . . Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”

This principle was subsequently expressly affirmed in DeStefano v. Woods, supra, decided on June 17, 1968. The per curiam opinion in that case held that the decisions in 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, relating to the right to jury trial do not apply to cases where trials began prior to May 20, 1968, the date of the United States Supreme Court decisions in the Duncan and Bloom cases. This statement of this rule in the opinion is subjoined by the following footnote (p. 635): “We see no basis for a distinction between convictions that have become final and cases at various stages of trial and appeal. See Stovall v. Denno, . . . [388 U.S. 293, 300-301, 87 S. Ct. 1967, 18 L. Ed. 2d 1199].”

We conclude that, although it does not appear that the second O’Connor case has been expressly overruled, nevertheless the United States Supreme Court would not follow that decision today in determining the applicability of the Griffin rule. Furthermore, application of the retroactivity tests prescribed by that court in Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199,¹ all result in persuasive arguments against the applicability of that rule to the present case.

We find language in an en banc decision of the Court of Appeals for the Fourth Circuit apt in the present situation. In Rowe v. Peyton, 383 F.2d 709, 714, affirmed in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426, that court said, speaking by Haynsworth, C. J.: “This court, of course, must follow the Supreme Court, but there are occasional situations in which subsequent Supreme Court opinions have so eroded an older ease, without explicitly overruling it, as to warrant a subordinate court in pursuing what it conceives to be a clearly defined new lead from the Supreme Court to a conclusion inconsistent with an older Supreme Court case.”

We conclude that the Griffin rule does not govern disposition of the present appeal.

There is no error.

In this opinion Ryan and Shapiro, Js., concurred.

1 “The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (e) the effect on the administration of justice of a retroactive application of the new standards.”