State v. Graham ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. ROBERT LEE GRAHAM
(SC 20153)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Argued September 16, 2020—officially released February 4, 2021*
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Hartford, where the court, Gold,
J., denied in part the defendant’s motions to suppress
certain evidence; thereafter, the case was tried to the
jury before Gold, J.; verdict and judgment of guilty,
from which the defendant appealed to this court. Appeal
dismissed.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, former state’s
attorney, and Vicki Melchiorre and Richard Rubin,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
PER CURIAM. After this case was argued, defense
counsel notified this court that the defendant and appel-
lant, Robert Lee Graham, died while in the custody of
the Commissioner of Correction on January 8, 2021.
Defense counsel did not request any specific disposition
of this appeal as a result of the defendant’s death. Con-
sistent with the past practice of this court, therefore,
we dismiss the appeal as moot. E.g., State v. Bostwick,
251 Conn. 117, 118–19, 740 A.2d 381 (1999); State v.
Trantolo, 209 Conn. 169, 170, 549 A.2d 1074 (1988);
State v. Granata, 162 Conn. 653, 653, 289 A.2d 385(1972); State v. Raffone, 161 Conn. 117, 120, 285 A.2d
323 (1971); see also Dove v. United States, 423 U.S. 325,
325, 96 S. Ct. 579, 46 L. Ed. 2d 531 (1976) (dismissing
petition for writ of certiorari as moot). We leave for
another day the question of whether the better course
of action in such cases, followed by the majority of
our sister courts, would be to vacate the judgment of
conviction and to remand with instructions to dismiss
the indictment ab initio. See, e.g., United States v. Mol-
lica, 849 F.2d 723, 725–26 (2d Cir. 1988) (vacating judg-
ment of conviction and dismissing indictment as to
deceased appellant); State v. Trantolo, supra, 174
(Healey, J., dissenting) (‘‘the great majority of courts
that have considered the problem have ruled that death
pending appellate review of a criminal conviction
abates not only the appeal but also the proceedings had
in the prosecution ab initio’’); J. Derrick, ‘‘Abatement
Effects of Accused’s Death Before Appellate Review of
Federal Criminal Conviction,’’ 80 A.L.R. Fed. 446, 448,
§ 2 (1986) (stating majority rule).
The appeal is dismissed.
* February 4, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.