State v. Miranda ( 2015 )

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STATE OF CONNECTICUT v. PEDRO L. MIRANDA
(SC 19228)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued February 10—officially released August 18, 2015
Procedural History
Substitute information charging the defendant with
two counts of the crime of capital felony, and with one
count each of the crimes of murder, felony murder and
kidnapping in the first degree, brought to the Superior
Court in the judicial district of Hartford and tried to
the jury before Dewey, J.; verdict and judgment of guilty
of one count each of capital felony, murder, felony
murder and kidnapping in the first degree, from which
the defendant appealed to the Appellate Court, Lavine,
Beach and Borden, Js., which reversed in part the trial
court’s judgment and remanded the case to that court
with direction to vacate the defendant’s conviction of
felony murder and murder, and the state, on the granting
of certification, appealed to this court. Affirmed.
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, David Zagaja, senior assistant state’s attor-
ney, and Melissa Patterson, assistant state’s attorney,
for the appellant (state).
Alice Osedach, assistant public defender, for the
appellee (defendant).
Opinion
ROBINSON, J. The sole issue in this certified appeal
is whether the vacatur remedy prescribed in State v.
Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), applies to
the double jeopardy violation1 caused by cumulative
homicide convictions arising from the killing of a single
victim. The state appeals, upon our grant of its petition
for certification,2 from the judgment of the Appellate
Court reversing in part the trial court’s judgment and
remanding the case with direction to vacate the convic-
tions of the defendant, Pedro L. Miranda, for murder
and felony murder on the ground that those convictions
violated constitutional prohibitions against double jeop-
ardy because they were cumulative of the controlling
conviction of capital felony. See State v. Miranda, 145
Conn. App. 494, 520, 75 A.3d 742 (2013). On appeal,
the state claims that the Appellate Court improperly
concluded that vacatur was the appropriate remedy for
the double jeopardy violation caused by the cumulative
conviction of felony murder. We disagree with the
state’s claim and, accordingly, affirm the judgment of
the Appellate Court.
The record reveals the following relevant facts and
procedural history.3 In connection with the killing of a
single victim, a jury found the defendant guilty of capital
felony in violation of General Statutes (Rev. to 1987)
§ 53a-54b (5),4 murder in violation of General Statutes
(Rev. to 1987) § 53a-54a (a), felony murder in violation
of General Statutes (Rev. to 1987) § 53a-54c, and kidnap-
ping in the first degree in violation of General Statutes
(Rev. to 1987) § 53a-92 (a) (2) (A).5 The trial court,
Dewey, J., subsequently rendered judgment in accor-
dance with the jury’s verdict and sentenced the defen-
dant to life without parole for the capital felony
conviction, fifty years imprisonment for the murder
conviction, twenty-five years imprisonment for the fel-
ony murder conviction, and twenty-five years imprison-
ment for the kidnapping conviction. The trial court
ordered the sentences to run consecutively, for a total
effective sentence of life without parole plus 100
years imprisonment.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, inter alia, that
his cumulative convictions and sentences for capital
felony, murder, and felony murder violated constitu-
tional protections against double jeopardy because they
arose from the killing of a single victim.6 In his brief to
the Appellate Court, the defendant asserted that, in
accordance with State v. Chicano, 216 Conn. 699, 584
A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct.
2898, 115 L. Ed. 2d 1062 (1991), overruled in part by
State v. Polanco, 308 Conn. 242, 261, 61 A.3d 1084 (2013),
the appropriate remedy was to merge his murder and
felony murder convictions into his controlling capital
felony conviction, and to vacate his murder and felony
murder sentences. In its brief, the state agreed with the
defendant’s claim and his suggested remedy.
After briefing, but prior to the parties’ oral argument
before the Appellate Court, this court issued its decision
in Polanco, which expressly overruled Chicano in part
and held that when a defendant is convicted of greater
and lesser included offenses in violation of double jeop-
ardy protections, the conviction for the lesser included
offense must be vacated—not merged. State v. Polanco,
supra, 308 Conn. 255. The Appellate Court subsequently
ordered the parties to be prepared to discuss at oral
argument the potential impact of Polanco on the defen-
dant’s appeal. During oral argument before the Appel-
late Court, the parties agreed that, because murder is
a lesser included offense of capital felony, the Polanco
holding rendered it necessary to vacate the defendant’s
murder conviction. The parties disagreed, however,
about whether Polanco also affected the defendant’s
felony murder conviction. The defendant contended
that the vacatur remedy set forth in Polanco should
logically extend to his felony murder conviction,
whereas the state contended that the merger remedy
set forth in Chicano remained viable because felony
murder is not a lesser included offense of capital felony.
In a unanimous opinion, the Appellate Court first
agreed with the parties’ position that Polanco required
it to vacate the defendant’s murder conviction. State v.
Miranda, supra, 145 Conn. App. 505–506. The Appellate
Court then turned to the defendant’s felony murder
conviction, and observed that this court had stated in
Polanco that it was not aware of any reason why the
vacatur remedy should not be applied ‘‘with equal force
to other scenarios in which cumulative convictions vio-
late the double jeopardy clause . . . .’’ (Internal quota-
tion marks omitted.) Id., 506, quoting State v. Polanco,
supra, 308 Conn. 249 n.3. The Appellate Court disagreed
with the state’s proffered reason why the vacatur rem-
edy should not extend to the defendant’s felony murder
conviction—namely that, unlike his murder conviction,
it was uncertain whether his felony murder conviction
could be reinstated if the controlling capital felony con-
viction was ever overturned on a ground that solely
undermined the controlling conviction. State v.
Miranda, supra, 506–507. Citing State v. Polanco, supra,
506–507, the Appellate Court concluded that, ‘‘if substi-
tuting a conviction of a lesser included offense is proper
[when] the record establishes that the jury necessarily
found, beyond a reasonable doubt, all of the essential
elements required to convict the defendant . . . then,
a fortiori, it is proper to reinstate a vacated conviction
when the jury explicitly found the defendant guilty of
the vacated offense.’’ (Citation omitted; footnote omit-
ted; internal quotation marks omitted.) State v.
Miranda, supra, 506–507. Accordingly, the Appellate
Court reversed in part the trial court’s judgment and
remanded the case with direction to vacate the defen-
dant’s convictions of murder and felony murder. Id.,
520. This certified appeal followed. See footnote 2 of
this opinion.
On appeal, the state claims that the Appellate Court
improperly concluded that vacatur is the appropriate
remedy for the defendant’s cumulative felony murder
conviction that violated his double jeopardy protec-
tions.7 As an initial matter, the state acknowledges that,
under Connecticut law, the imposition of cumulative
punishments for the homicide offenses of capital felony
and felony murder violates constitutional protections
against double jeopardy if those offenses arise from the
killing of a single victim. See, e.g., State v. John, 210
Conn. 652, 696–97, 557 A.2d 93, cert. denied, 493 U.S.
824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). Moreover, the
state recognizes that, under the United States Supreme
Court’s decisions in Ball v. United States, 470 U.S. 856,
105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985), and Rutledge
v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L.
Ed. 2d 419 (1996), a cumulative conviction can be a
form of punishment in and of itself because it may lead
a defendant to suffer adverse collateral consequences.8
With these concessions in mind, the state narrowly
focuses its argument on the type of remedy that exists
for the defendant’s cumulative felony murder con-
viction.
Specifically, the state argues that ‘‘this court should
limit the reach of Polanco to only [double jeopardy]
scenarios involving greater and lesser included offenses
. . . .’’ The state contends, and the defendant agrees,
that the present case does not involve greater and lesser
included offenses because ‘‘capital felony and felony
murder each require proof of elements that the other
does not.’’9 Consequently, the state insists that Chicano
still governs the defendant’s case and ‘‘the appropriate
remedy remains merger, rather than vacatur . . . .’’
Further, the state argues that maintaining the merger
approach set forth in Chicano would avoid a risk that
the defendant might ‘‘escape punishment entirely if he
were to later succeed in reversing his controlling [capi-
tal felony] conviction,’’ because it is uncertain whether
the defendant’s felony murder offense could ever be
resurrected after being vacated.10
In response, the defendant argues that the Appellate
Court properly concluded that the vacatur remedy set
forth in Polanco extends to his cumulative felony mur-
der conviction. Quoting State v. Polanco, supra, 308
Conn. 258, the defendant asserts that ‘‘the jurispruden-
tial underpinnings to this court’s approval of the merger
approach in Chicano have . . . been repudiated,’’ and
that the merger approach ‘‘is now at odds with the
remedy utilized almost uniformly by the Circuit Courts
of Appeals.’’ (Internal quotation marks omitted.) The
defendant further contends that the state’s concern of
being unable to resurrect the felony murder conviction
is baseless. Noting that, in Polanco, this court expressly
approved of the practice of resurrecting a vacated con-
viction of a lesser included offense in the event that a
conviction for a greater offense is overturned on non-
overlapping grounds, the defendant argues that ‘‘the
vacatur remedy is no more final than the merger rem-
edy.’’ (Internal quotation marks omitted.) The defen-
dant asserts that there is no barrier to using this
resurrection practice in other scenarios in which a con-
trolling conviction is overturned for reasons that would
not affect a conviction that previously had been vacated
because of a double jeopardy violation. We agree with
the defendant, and conclude that the Appellate Court
properly determined that vacatur was the appropriate
remedy for his cumulative felony murder conviction.
We begin by recognizing that, in Polanco, we invoked
our supervisory powers to readopt vacatur as a remedy
for a cumulative conviction that violated double jeop-
ardy protections. State v. Polanco, supra, 308 Conn.
248–49, 255–56. We also provided a detailed history of
this court’s case law on remedies for violations of the
double jeopardy protection against unauthorized multi-
ple punishments, as well as the parallel evolution of
such jurisprudence in the United States Court of
Appeals for the Second Circuit and in the United States
Supreme Court. See id., 249–54. We noted that, ‘‘[f]or
several years prior to Chicano, it was this court’s policy,
when multiple punishments [were] imposed for the
same offense . . . [to] set aside the judgment of con-
viction for one of the offenses, thereby vacating both the
conviction and the sentence for that offense.’’ (Internal
quotation marks omitted.) Id., 249; see also State v.
John, supra, 210 Conn. 696 (‘‘[a]n indictment charging
an accused with intentional and felony murder of a
particular victim charges a single offense, committed
conjunctively in two different ways’’ [internal quotation
marks omitted]).
‘‘In Chicano, which involved a defendant’s cumula-
tive convictions for felony murder and manslaughter in
the first degree—a single crime for double jeopardy
purposes—this court considered the state’s request
. . . to abandon its established vacatur remedy in favor
of the Second Circuit’s merger approach. . . . Relying
exclusively on the reasoning [set forth in prevailing
opinions from the Second Circuit at the time], this court
ultimately was persuaded that the merger of convictions
approach should be adopted. . . . Subsequently . . .
this court . . . extended the merger remedy to cumula-
tive convictions of greater and lesser included
offenses.’’ (Citations omitted.) State v. Polanco, supra,
308 Conn. 252–53.
‘‘In Rutledge [v. United States, supra, 517 U.S. 292],
the Supreme Court expressly found unpersuasive the
policy rationale underlying the Second Circuit’s adop-
tion of the merger of convictions approach . . . the
very rationale on which this court had relied in Chicano.
Following Rutledge, the Second Circuit repudiated the
merger approach . . . .’’ (Citation omitted.) State v.
Polanco, supra, 308 Conn. 258. Other jurisdictions
adjusted where necessary, and ‘‘the remedy established
in Chicano is now at odds with the remedy utilized
almost uniformly by the Circuit Courts of Appeals.’’ Id.As a result of these contemporary developments, in
Polanco, this court readopted the vacatur remedy and,
thereby, returned to our pre-Chicano approach, consis-
tent with that of the federal system. Id., 259–60.
Although the holding in Polanco was limited to cases
involving greater and lesser included offenses—in light
of the issue presented—this court remarked in dictum
that it was ‘‘aware of no reason why our holding, of
logical necessity, would not apply with equal force to
other scenarios in which cumulative convictions violate
the double jeopardy clause . . . .’’ Id., 249 n.3. In the
present appeal, we are confronted with one of those
prophesied ‘‘other scenarios,’’ for the defendant had
been subjected to cumulative capital felony and felony
murder convictions in violation of double jeopardy pro-
tections.
We conclude that the remedy set forth in Polanco
should extend to scenarios like the defendant’s, thus
making it appropriate to vacate his cumulative felony
murder conviction. To begin, our conclusion finds sup-
port in persuasive contemporary decisions of various
Circuit Courts of Appeal. Although Polanco principally
relied on federal appellate decisions that eschewed the
merger remedy for greater and lesser included offenses;
id., 258; federal appellate decisions have also eschewed
the merger remedy in other contexts in which a defen-
dant had been subjected to an unauthorized cumulative
conviction. See Wood v. Milyard, 721 F.3d 1190, 1195–97
(10th Cir. 2013) (vacating unauthorized cumulative mur-
der conviction, when each form of murder required
proof of different element); see also United States v.
Britt, 112 Fed. Appx. 352, 357–58 (5th Cir. 2004); United
States v. Locust, 95 Fed. Appx. 507, 517–18 (4th Cir.
2004). It is fitting, then, to continue Polanco’s harmoni-
zation of our approach with that of the federal system.
See State v. Polanco, supra, 308 Conn. 259–60. Analo-
gously, by requiring usage of the vacatur approach
beyond greater and lesser included scenarios, in ‘‘other
scenarios in which cumulative convictions violate the
double jeopardy clause’’; id., 249 n.3; we promote inter-
nal consistency and eliminate the potential for confu-
sion within our own state’s judicial system.
Perhaps more importantly, although the merger
approach of Chicano was intended as a remedy for all
manner of unlawful cumulative convictions; see State
v. Chicano, supra, 216 Conn. 722–25; that remedy has
proven unwieldy in practice. In Polanco, this court
noted that ‘‘at oral argument . . . there was some ques-
tion as to how a conviction for a lesser included offense,
which has been merged with a conviction on the greater
offense, appears on a defendant’s criminal record. On
the basis of the state’s representations, it appears that
there has been some inconsistency among our judicial
districts on how courts memorialize the conviction for
the lesser offense. Still, it is clear that the conviction
appears, in at least some capacity and in some
instances, on the criminal record.’’ State v. Polanco,
supra, 308 Conn. 260 n.10; see also Ball v. United States,
supra, 470 U.S. 865 (‘‘[a] second conviction [for the
same offense], even if it results in no greater sentence,
is an impermissible punishment’’).
These inconsistent results are not altogether surpris-
ing, and the present appeal illustrates just how challeng-
ing it can be to implement the merger approach.11
Indeed, the state’s acknowledgment at oral argument
before this court that the violative cumulative convic-
tion ‘‘is not eliminated from existence’’12 under the
merger approach seems confusingly incongruent with
its brief, which asserts that felony murder ‘‘would not
exist as a separate conviction’’ for the defendant if it
were merged. To this end, in scenarios not involving
greater and lesser included offenses, the mechanics of
the merger arrangement are particularly confounding,
because by definition one conviction could not nest
entirely inside the other.13
In sum, we are not convinced that the opaque remedy
of merger can be implemented in a manner that consis-
tently protects defendants from the potential collateral
consequences of having an unauthorized cumulative
homicide conviction. See Rutledge v. United States,
supra, 517 U.S. 302. Instead, ‘‘we think it wise to adhere
to an approach that the federal courts seem to conclude
is less likely to give rise to collateral consequences,’’
namely, the vacatur approach. (Emphasis in original.)
State v. Polanco, supra, 308 Conn. 256 n.5. Extending
this vacatur remedy beyond scenarios involving greater
and lesser included offenses will therefore promote
inter-jurisdictional and intra-jurisdictional harmony,
and better safeguard against unconstitutional multi-
ple punishments.
Because we think it is appropriate to continue to end
our use of the merger approach, we briefly address
the state’s concern that the defendant might ‘‘escape
punishment entirely if he were to later succeed in
reversing his controlling [capital felony] conviction.’’
Generally, we see no substantive obstacle to resurrect-
ing a cumulative conviction that was once vacated on
double jeopardy grounds—provided that the reasons
for overturning the controlling conviction would not
also undermine the vacated conviction. See, e.g., United
States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996) (‘‘[t]his
practice [of reinstating a previously vacated conviction]
does not violate the [d]ouble [j]eopardy [c]lause
because, in essence, the defendant is not subjected to
multiple punishment; rather, he is placed in exactly the
same position in which he would have been had there
been no [erroneous conviction of the controlling
offense] in the first instance’’). This holds true regard-
less of whether the previously vacated conviction was
for a lesser included offense of the controlling convic-
tion, or was cumulative in some other manner. In either
instance, a jury necessarily found that all the elements
of the cumulative offense were proven beyond a reason-
able doubt. Put differently, although the cumulative
conviction goes away with vacatur, the jury’s verdict
does not.14
On this point, the experience of the State of Washing-
ton is especially illustrative. In the case underlying State
v. Schwab, 163 Wn. 2d 664, 669, 185 P.3d 1151 (2008)
(en banc), a defendant was convicted of second degree
felony murder and first degree manslaughter in connec-
tion with the killing of a single victim. On direct appeal,
those cumulative homicide convictions were held to be
a double jeopardy violation, leading the Washington
Court of Appeals to remand the case with direction for
the trial court to vacate the first degree manslaughter
conviction. Id. Later, on collateral review, the same
defendant succeeded in overturning his remaining sec-
ond degree felony murder conviction in light of
intervening case law. Id., 670. As a result, that defen-
dant’s collateral review petition was granted, and his
case was remanded to the trial court for additional
proceedings. Id. On remand, the trial court determined
that there was no bar to reinstating the vacated first
degree manslaughter conviction, and the Washington
Court of Appeals thereafter upheld that judgment. Id.,
670–71. The Supreme Court of Washington subse-
quently concluded that this series of events complied
with specialized court rules of that state, as well as
double jeopardy protections more broadly. Id., 673–76.
It specifically opined that ‘‘revival of the [vacated] man-
slaughter conviction would serve the interest of jus-
tice’’; id., 674; without raising a double jeopardy
concern. Id., 676; see also id., 674–75 (reasoning abey-
ance, conditional dismissal, or automatic revival of
cumulative conviction would have been improper).
Moving beyond this illustration of how a vacated
homicide conviction might later be reinstated, we
return to the present case. We emphasize that, even if
the defendant’s controlling capital felony conviction
were to be overturned on limited grounds, it would not
necessarily follow that he would escape all punishment
for homicide—so long as the form of judgment reflected
the jury’s verdict with respect to each of the cumulative
homicide convictions and indicated that the court had
vacated those cumulative homicide convictions in light
of the controlling capital felony conviction. One of the
cumulative convictions could be reinstated so long as
the defect in the overturned controlling conviction was
not shared with that cumulative conviction. As one
example, if this defendant’s capital felony conviction
was ever overturned because the underlying kidnapping
was called into question, the conviction of the lesser
included offense of murder could be reinstated.15 See
State v. Polanco, supra, 308 Conn. 263; see also General
Statutes (Rev. to 1987) § 53a-54b (5) (capital felony if
kidnapper murders his kidnapping victim). As a second
example, if the defendant’s capital felony conviction
was ever overturned because his underlying intent to
cause the death of the victim was called into question,
the coordinate conviction of the offense of felony mur-
der could be reinstated. Compare General Statutes
(Rev. to 1987) § 53a-54b (capital felony requires mur-
der), with General Statutes (Rev. to 1987) § 53a-54a (a)
(murder requires intent to cause death of victim), and
General Statutes (Rev. to 1987) § 53a-54c (felony mur-
der requires no intent to cause death of victim). In
either instance, after reinstating a once vacated homi-
cide conviction, the trial court would proceed to sen-
tence the defendant for that offense, which, in turn,
would have the effect of activating the defendant’s right
to challenge the new judgment on any basis unconnec-
ted to the overturned conviction. See In re Application
for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653,
662–63, 866 A.2d 542 (2005) (recognizing that, pursuant
to collateral estoppel doctrine, parties that had ‘‘fair
and full opportunity to litigate’’ legal issue could not
litigate same issue again in another proceeding).
Finally, we do not attempt to address every possible
question that could arise from cases where cumulative
convictions have been imposed in violation of double
jeopardy protections, and limit our analysis to the
cumulative homicide convictions presently before us.
Moreover, ‘‘[t]o the extent that the creation of generally
applicable rules on this topic are necessary or appro-
priate, that responsibility is left to the Rules Committee
of the Superior Court, which is vested with the power
to establish rules of procedure for our trial courts.’’
State v. Jones, 314 Conn. 410, 425, 102 A.3d 694 (2014).
Accordingly, we conclude that the Appellate Court
properly determined that the trial court was required
to vacate the defendant’s convictions of murder and
felony murder.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
‘‘The double jeopardy clause of the fifth amendment to the United States
constitution provides: [N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb. The double jeopardy clause
[applies] to the states through the due process clause of the fourteenth
amendment. . . . This constitutional guarantee prohibits not only multiple
trials for the same offense, but also multiple punishments for the same
offense in a single trial.’’ (Internal quotation marks omitted.) State v. Polanco,
supra, 308 Conn. 244 n.1; see also Ball v. United States, 470 U.S. 856, 865,
105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985) (‘‘the second conviction [for the
same offense], even if it results in no greater sentence, is an impermissi-
ble punishment’’).
By comparison, ‘‘[t]he constitution of Connecticut does not contain an
express prohibition against double jeopardy. Instead, we repeatedly have
held that the due process guarantees, presently encompassed in article
first, § 8, of the Connecticut constitution, include protection against double
jeopardy.’’ State v. Michael J., 274 Conn. 321, 350, 875 A.2d 510 (2005). Our
state constitution offers double jeopardy protection that mirrors, but does
not exceed, that provided by the federal constitution. Id., 354.
2
We granted the state’s petition for certification to appeal limited to the
following issue: ‘‘Did the Appellate Court properly apply State v. Polanco,
[supra, 308 Conn. 242], which held that the appropriate remedy for cumula-
tive convictions of greater and lesser included offenses arising from the
same incident is to vacate the conviction for the lesser offense, to cumulative
homicide convictions arising from the killing of a single victim?’’ State v.
Miranda, 310 Conn. 942, 942–43, 79 A.3d 894 (2013).
3
A detailed review of the facts underlying the present case is set forth
in the opinion of the Appellate Court. See State v. Miranda, supra, 145
Conn. App. 497–501.
4
General Statutes (Rev. to 1987) § 53a-54b provides in relevant part: ‘‘A
person is guilty of a capital felony who is convicted of any of the following
. . . (5) murder by a kidnapper of a kidnapped person during the course
of the kidnapping or before such person is able to return or be returned to
safety . . . .’’
5
We note that each of these statutes has been amended by the legislature
subsequent to the criminal acts underlying the present case. See, e.g., Public
Acts 2012, No. 12-5, § 1; Public Acts 1992, No. 92-260, § 26. We note that
these amendments have no bearing on the merits of the present appeal.
Hereinafter, all references to §§ 53a-54a, 53a-54b, 53a-54c and 53a-92 within
this opinion are to the 1987 revision.
6
The defendant did not raise a double jeopardy claim in connection with
his conviction and sentence for kidnapping.
7
The state does not challenge any of the Appellate Court’s conclusions
with respect to the cumulative conviction of murder.
8
We note that the state has not raised the issue regarding collateral
consequences that was conspicuously avoided in Rutledge. See Rutledge v.
United States, supra, 517 U.S. 302–303 (declining to explore argument that
defendant sentenced to life without parole would ‘‘never be exposed to
collateral consequences like those described in Ball’’ because defendant
still faced $50 assessment for cumulative conviction); see also State v.
Polanco, supra, 308 Conn. 254 (discussing this aspect of Rutledge).
9
Because the parties agree that capital felony and felony murder each
‘‘require proof of elements that the other does not,’’ we will assume, without
deciding, that the convictions in this particular case were not for greater
and lesser included offenses. See, e.g., Brown v. Ohio, 432 U.S. 161, 168,
97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (lesser included offense requires ‘‘no
proof beyond that which is required for conviction of the greater’’).
10
Additionally, the state claims that the trial court improperly sentenced
the defendant to life ‘‘without parole’’ for his controlling capital felony
conviction and asks us to correct the form of the judgment. Citing General
Statutes § 53a-35a (1) (A), the state asserts that, in a capital felony case
where the death penalty is not imposed, the only permissible sentence is
life ‘‘without the possibility of release . . . .’’ While the state is correct in
a literalistic sense, it has identified a distinction without a difference. The
terms of life ‘‘without parole’’ and life ‘‘without the possibility of release’’
are functionally identical in Connecticut. See General Statutes § 54-125a (b)
(1) (‘‘[n]o person convicted of any of the following offenses . . . shall be
eligible for parole . . . [A] [c]apital felony’’); see also State v. Ross, 230
Conn. 183, 302 n.16, 646 A.2d 1318 (1994) (Berdon, J., dissenting in part)
(‘‘If the penalty of death were declared unconstitutional, the alternative
sentence in Connecticut that would be in place for the conviction of a capital
felony under . . . § 53a-54b would be ‘a sentence of life imprisonment with-
out the possibility of release.’ . . . This simply means life imprisonment
without the possibility of parole . . . .’’ [Emphasis in original.]), cert.
denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Because
these terms are functionally identical, and the state has not provided any
substantive reason why we should direct the trial court to revise the form
of the defendant’s existing capital felony sentence in this respect, we decline
its request to do so.
11
Even celebrated jurists have found the merger concept vexing. See,
e.g., United States v. Estrada, 751 F.2d 128, 135 (2d Cir. 1984) (Kearse, J.,
concurring) (‘‘It is not clear to me . . . what the precise effect is of ‘join[ing]’
or ‘combin[ing]’ the convictions . . . . I believe it would have been appro-
priate to vacate the [cumulative] convictions . . . . I do not know what
[the merger remedy] means ontologically . . . .’’ [Citations omitted.]).
12
We refer to the following colloquy in particular:
‘‘[The Court]: How would it happen in the merger context?
‘‘[Counsel for the State]: In the merger context, it would just happen in
the same way that it’s been happening . . . .
‘‘[The Court]: But what happens?
‘‘[Counsel for the State]: The conviction . . . is not eliminated from exis-
tence . . . it’s just kind of held in abeyance . . . .’’
13
Cf. J. Shellenberger & J. Strazzella, ‘‘The Lesser Included Offense Doc-
trine and the Constitution: The Development of Due Process and Double
Jeopardy Remedies,’’ 79 Marq. L. Rev. 1, 131 n.450 (1995) (‘‘[i]n this sense
[of merging greater and lesser included offenses], the meaning is that the
lesser becomes part of the conviction for the whole; a conviction for all the
elements of the greater is automatically a conviction of the crime comprised
entirely of elements necessarily included in the greater’’).
14
Thus, we remain unpersuaded by the state’s contention that the vacatur
remedy returns a defendant ‘‘to his pretrial status of innocence,’’ an argument
we rejected in Polanco, nearly verbatim. See State v. Polanco, supra, 308
Conn. 260 n.11 (‘‘[i]t appears that the state is concerned that, if we were to
apply . . . the vacatur approach, vacating a defendant’s conviction for a
lesser included offense would amount to a reversion of his or her status to
presumptively innocent, a result that would be wholly inconsistent with the
verdict of guilty actually rendered’’).
15
Given our conclusion that vacatur is the appropriate remedy for a cumu-
lative homicide conviction that violates double jeopardy protections, we
note that, in future cases involving felony murder, it may be a better practice
to obtain jury interrogatories that identify which predicate felony served as
the basis for a jury’s felony murder verdict if the charging documents and
the record indicate multiple potential bases for that verdict. Cf. State v.
Terwilliger, 314 Conn. 618, 637, 104 A.3d 638 (2014) (reviewing courts ‘‘avoid
undue speculation when faced with a general jury verdict that convicts the
defendant of a single offense but is ambiguous as to the specific theory on
which the jury relied in rendering its verdict’’).