State v. Apt ( 2015 )

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STATE v. APT—DISSENT
ROBINSON, J., with whom ZARELLA and McDON-
ALD, Js., join, dissenting. I respectfully disagree with
the majority’s conclusion that the erasure provisions
of General Statutes § 54-142a1 do not ‘‘preclude a trial
court from enhancing a defendant’s sentence’’ pursuant
to General Statutes § 53a-40b2 ‘‘after the records per-
taining to the charges for which the defendant was on
pretrial release have been erased,’’ although the state
is not permitted to ‘‘use the erased records to prove
the basis for the sentence enhancement under § 53a-
40b.’’ In my view, the majority’s conclusion that § 54-
142a allows for such an enhancement creates a world
of parallel realities that contradicts the logic and pur-
pose of that statute. Guided largely by this court’s deci-
sion in State v. Morowitz, 200 Conn. 440, 512 A.2d 175
(1986), I agree instead with the Appellate Court’s well
reasoned conclusion that a trial court may not impose
a sentence enhancement under § 53a-40b, ‘‘when, prior
to the sentencing, the records relating to the arrests
that led to the defendant’s release on bond had been
erased pursuant to § 54-142a.’’ State v. Apt, 146 Conn.
App. 641, 643, 78 A.3d 249 (2013). Accordingly, I respect-
fully dissent.
To provide context for the analysis that follows, I
briefly frame the statutory construction matter before
us.3 It is undisputed that criminal charges against the
defendant, Seth William Apt, which arose from a Sep-
tember 10, 2007 arrest in Manchester, were erased in
accordance with § 54-142a (e), following the May 7,
2010 dismissal of those charges attendant to his comple-
tion of accelerated rehabilitation. See General Statutes
§ 54-56e.4 On May 7, 2010, the state also entered a nolle
prosequi on certain other charges against the defendant
stemming from arrests dated December 19, 2008, and
January 16, 2009. Those arrests were erased in accor-
dance with § 54-142a (c) (1). All of these erasures took
place before the defendant’s June 24, 2011 sentencing
on his conviction of larceny in the third degree in viola-
tion of General Statutes § 53a-124 (a) (2), a crime that
he had committed in Hebron while on released on bond.
At that June 24, 2011 sentencing hearing, the trial court
enhanced the defendant’s sentence pursuant to § 53a-
40b. The key to this certified appeal, then, is whether
a sentence enhancement under § 53a-40b for crimes
committed while on pretrial release is permissible when
the arrests occasioning that release had been erased
pursuant to § 54-142a prior to sentencing, particularly
given § 54-142a (e) (3), which provides: ‘‘Any person
who shall have been the subject of such an erasure
shall be deemed to have never been arrested within the
meaning of the general statutes with respect to the
proceedings so erased and may so swear under oath.’’
The statutory construction issue presented by this
case raises a question of law over which our review is
plenary. See, e.g., State v. Moreno-Hernandez, 317
Conn. 292, 299, 118 A.3d 26 (2015). I agree with the
majority’s determination that § 54-142a is ambiguous
on this point, insofar as it is subject to more than one
reasonable interpretation, thus permitting resorting to
extratextual materials under General Statutes § 1-2z.
Id., 299–300.
Turning, then, to the relevant extratextual materials,
the majority observes accurately that the legislative
history of § 54-142a, and particularly, § 54-142a (e) (3),
‘‘indicates that [it] was intended to insulate people who
are arrested but never convicted from the adverse soci-
etal consequences that result from having an arrest
record . . . .’’5 The adverse consequences addressed
by the legislators in discussing the original erasure stat-
ute concerned the general ‘‘stigma’’ of arrest, and the
attendant negative consequences for eligibility for
employment or military service. See 10 H.R. Proc., Pt.
9, 1963 Sess., pp. 3498–99, remarks of Representative
Richard Duda; 10 S. Proc., Pt. 8, 1963 Sess., p. 2730,
remarks of Senator Morgan McGuire. The legislature’s
subsequent amendments to the erasure statute empha-
sized the importance of addressing the fact of the arrest
itself, and provided as a matter of law that a person
whose arrest records had been erased could truthfully
state, including under oath, that he had never been
arrested.6 See 12 H.R. Proc., Pt. 4, 1967 Sess., p. 1621,
remarks of Representative John Carrozzella; 12 H.R.
Proc., Pt. 5, 1967 Sess., pp. 1760–61, remarks of Repre-
sentative Carl Ajello and Representative John Carroz-
zella; 12 S. Proc., Pt. 3, 1967 Sess., p. 1106, remarks of
Senator T. Clark Hull and Senator Jay Jackson.
The purpose of § 54-142a guides my reading of our
past cases interpreting that statute, particularly State
v. Morowitz, supra, 200 Conn. 440. See New England
Road, Inc. v. Planning & Zoning Commission, 308
Conn. 180, 186, 61 A.3d 505 (2013) (‘‘in interpreting
[statutory language] we do not write on a clean slate,
but are bound by our previous judicial interpretations
of this language and the purpose of the statute’’). In
Morowitz, this court considered the claim of a defen-
dant, a podiatrist, that his prior acts of sexual miscon-
duct with a patient were inadmissible at his trial for
the sexual assault of an anesthetized patient. State v.
Morowitz, supra, 441–42. Specifically, the defendant in
Morowitz claimed that the evidence was inadmissible,
notwithstanding the ‘‘ordinary rules governing prior
misconduct evidence . . . because the incident to
which the testimony referred formed the basis of crimi-
nal charges for which the defendant had been granted,
and had successfully completed, accelerated rehabilita-
tion pursuant to . . . § 54-56e,’’ thus resulting in the
erasure of ‘‘all police, court, and prosecution records
in connection with these dismissed charges . . . .’’ Id.,
447–48. The court disagreed, observing that this argu-
ment ‘‘misperceives both the focus of prior misconduct
evidence and the scope of § 54-142a, the erasure statute.
Evidence of a criminal defendant’s prior crimes or mis-
conduct is offered, not to show that the defendant has
a criminal record, but to establish that, because the
prior conduct shares certain distinctive features with
the charged conduct, it is reasonable to infer that the
defendant committed the charged act in a similar man-
ner. . . . To be relevant for this purpose, it is not neces-
sary for the prior offense to have resulted either in an
arrest or in a conviction. . . . Such evidence may be
admissible even when a prosecution for the earlier
offense has resulted in an acquittal. . . . Consequently,
the fact that the defendant’s earlier charges were dis-
missed when he satisfied the conditions of accelerated
rehabilitation does not in any way lessen the relevance
of the evidence in the present case.’’ (Citations omitted.)
Id., 448–49.
This court further observed that an ‘‘analysis of . . .
§ 54-142a is . . . unhelpful to the defendant’s position.
Section 54-142a refers by its terms to ‘records’ of crimi-
nal proceedings, mandating in subsection (a) the era-
sure of ‘all police and court records and records of any
state’s attorney’ pertaining to charges which have been
dismissed, and prohibiting in subsection (e) the disclo-
sure of the contents of those records by judicial or law
enforcement personnel. There is no reference in the
statute to disclosures by private parties or to matters
extraneous to the records themselves. We have refused
in the past to extend the strictures of § 54-142a beyond
the classes of documents and individuals denominated
therein. See State v. West, 192 Conn. 488, 496, 472 A.2d
775 (1984) (photographs and fingerprints are not
‘records’ within the meaning of the statute); Doe v.
Manson, 183 Conn. 183, 188, 438 A.2d 859 (1981) (prison
records in the custody of the commissioner of correc-
tions are not ‘records’ within the meaning of the stat-
ute). The defendant offers no persuasive reason for us
to do so here.’’ State v. Morowitz, supra, 200 Conn.
449–50. Thus, the court held in Morowitz that the defen-
dant had failed ‘‘to establish that the disputed testimony
represented a ‘record’ within the reach of § 54-142a. In
admitting the testimony, the trial court carefully distin-
guished between evidence based on personal knowl-
edge and evidence based on the erased records, and
limited the scope of the [witness’] testimony to a
description of the prior incident as she remembered it.
Since the witness was also the victim of the earlier
assault, her personal knowledge of the events to which
she testified obviously preceded, and was independent
of, the court proceedings which followed. No reference
was permitted to the defendant’s prior arrest or prose-
cution, nor were any records of the prior proceedings
admitted into evidence.’’ (Emphasis added.) Id., 450.
The court further emphasized that ‘‘recognition of
this distinction does not undermine the purpose of the
erasure statute, which is ‘to protect innocent persons
from the harmful consequences of a criminal charge’
which is subsequently dismissed. . . . Prohibiting the
subsequent use of records of the prior arrest and court
proceedings adequately fulfills this purpose by insulat-
ing such an individual from the consequences of the
prior prosecution. The statute does not and cannot
insulate him from the consequences of his prior
actions. Although the records of the defendant’s prior
prosecution were erased, the prior victim’s memory of
the assault remained. Because the disputed testimony
was based on personal knowledge independent of the
erased records, § 54-142a did not bar its admission.’’
(Citations omitted; emphasis altered.) Id., 451.
In my view, Morowitz demonstrates that the erasure
statute is aimed at protecting persons from the collat-
eral effects of criminal proceedings resulting from prior
conduct, and in particular, the status of having been
arrested.7 The majority’s conclusion that the state may
attempt to prove the defendant’s status as a person on
pretrial release, despite the erasure of the police and
court records pertaining to the charges leading to that
status, leads to an absurd result by sanctioning the
genesis of a jurisprudential Schro¨dinger’s Cat8 with
respect to the proof of the sentence enhancement. Spe-
cifically, under § 54-142a as interpreted by the majority,
the defendant may testify under oath—truthfully as a
matter of law—that he has never been arrested, but
third-party witnesses may testify to the contrary about
the defendant’s status as a person on pretrial release,
and the official records that would conclusively resolve
the dispute over a technical legal matter pertaining to
the defendant’s status as an arrested person on release;
see State v. Fagan, 280 Conn. 69, 100–101, 905 A.2d
1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491,
167 L. Ed. 2d 236 (2007); are, as the majority acknowl-
edges, categorically inadmissible.9 In my view, the
majority’s endorsement of these two parallel realities
is at odds with the legislature’s intent, in enacting § 54-
142a, namely, to protect people from the collateral con-
sequences of arrests that did not lead to convictions.10
This is particularly so, given that any evidence of the
defendant’s status as a person on pretrial release neces-
sarily ‘‘derive[s] from erased records.’’ Rado v. Board
of Education, 216 Conn. 541, 550, 583 A.2d 102 (1990);
see also id., 551–52 (noting that erasure statute ‘‘was
not intended to obliterate memory or to exclude any
testimony not shown to have been derived from erased
records’’ in holding that detective could use his note-
book to refresh memory before testifying in teacher
termination proceeding premised on teacher’s acts of
wiretapping and eavesdropping, despite fact that crimi-
nal charges resulting from that conduct had been dis-
missed and records erased).
To this end, I also disagree with the majority’s reli-
ance on certain hypothetical examples, as well as § 54-
56e, the accelerated rehabilitation statute; see footnote
4 of this dissenting opinion; in support of its construc-
tion of § 54-142a. With respect to accelerated rehabilita-
tion, the majority accurately notes that § 54-56e (b)
‘‘plainly requires the trial court to inquire into whether a
defendant previously has participated in the accelerated
rehabilitation program,’’ with certain eligibility require-
ments implying the historical fact of a previous arrest.
See General Statutes § 54-56e (b) (defendant must
swear either [1] that he has never been granted entry
into program, [2] that he has only been granted entry
into program for certain minor offenses or violations
and that at least ten years have passed since charges
were dismissed, or [3] if defendant is veteran, he has
not previously been granted entry into program more
than one time). I do not agree, however, with the majori-
ty’s conclusion that, ‘‘[u]nder the Appellate Court’s
interpretation of § 54-142a (e) (3) . . . a trial court
would be precluded from conducting such an inquiry
because, as when a defendant is on pretrial release,
participation in an accelerated rehabilitation program
‘is inextricably related to the defendant’s prior
arrests.’ ’’ In my view, the legislature intended § 54-142a
(e) (3) to protect persons from being penalized as a
result of past arrests that did not lead to convictions.
In contrast to this case, which presents a penalty in the
form of a sentence enhancement under § 53a-40b, a
criminal defendant who applies for admission into the
accelerated rehabilitation program seeks the benefit of
‘‘avoiding protracted and potentially damaging litigation
without having to admit guilt and without any requisite
finding of guilt’’; AFSCME, Council 4, Local 1565 v.
Dept. of Correction, 298 Conn. 824, 846, 6 A.3d 1142
(2010); insofar as the program ‘‘give[s] first time offend-
ers who have been charged with nonserious crimes a
second chance to keep their criminal record clean.’’
State v. Kevalis, 313 Conn. 590, 605, 99 A.3d 196 (2014);
see also id., 606–607 (quoting Representative Christo-
pher Shays’ description of accelerated rehabilitation as
‘‘ ‘a very attractive program’ ’’); id., 608–609 (The court
quoted Senator John Kissel’s description of accelerated
rehabilitation as ‘‘ ‘a valuable program. It works to
reduce a lot of the pressures in the criminal justice
system and I think a lot of people have benefitted by
it. Not only victims, but also the accused and they’ve
turned their lives around and overall I would support
the bill.’ ’’). Thus, I do not view it as inconsistent with
§ 54-142a (e) (3) for a defendant to answer questions
relating to his eligibility for the benefit of accelerated
rehabilitation, even if such eligibility might imply the
fact of having been arrested previously.
I similarly disagree with the majority’s reliance on
a hypothetical example concerning a defendant who
committed an assault on a judicial marshal while being
presented in court for arraignment, insofar as it posits
that, if ‘‘the charges for which the defendant was being
arraigned subsequently were dismissed and the related
court records erased, the state could not introduce evi-
dence explaining why the defendant was present in
court at the time he assaulted the marshal. There simply
is no reason to think that the legislature, in passing the
erasure statute, would have intended to limit the state’s
proof in that way.’’ In response to this hypothetical,
query whether specific evidence of the defendant’s pres-
ence in court as a criminal defendant at the time of the
alleged assault would be admissible under the ordinary
rules of evidence, regardless of § 54-142a, insofar as it
is not necessary to prove the fact or location of the
assault in question, and therefore would appear to be a
textbook example of evidence whose prejudicial effect
exceeds its probative value under § 4-3 of the Connecti-
cut Code of Evidence.11 Cf. State v. Swain, 101 Conn.
App. 253, 268–69, 921 A.2d 712 (trial court properly
excluded, as more prejudicial than probative, evidence
that sexual assault complainant was incarcerated at
time of trial and when she identified defendant, given
that court permitted defendant to ask her about prior
felony convictions and ‘‘whether the state had made
any deals with her in exchange for her cooperation
in the case’’), cert. denied, 283 Conn. 909, 928 A.2d
539 (2007).
I, therefore, agree with the Appellate Court’s conclu-
sion that this case should not be remanded for a new
hearing as to the sentence enhancement, at which the
prosecution can introduce alternative evidence that the
defendant was released on bond at the time he commit-
ted the Hebron larceny. State v. Apt, supra, 146 Conn.
App. 649. As the Appellate Court cogently observed,
such a hearing is impermissible under § 54-142a, as
interpreted by State v. Morowitz, supra, 200 Conn. 450–
51, because it would be ‘‘the defendant’s status as a
prosecuted person, not his conduct, that is at issue.’’
State v. Apt, supra, 650 n.7. I further agree with the
Appellate Court that, under § 54-142a (e) (3), ‘‘the defen-
dant is no longer considered to have been arrested for
the alleged crimes to which the records pertained. It
would be wholly inconsistent to enhance the defen-
dant’s sentence for committing a crime while released
on bond for charges on which, as far as the law is
concerned, he was never arrested. Doing so would run
counter to the erasure statute’s purpose of insulating
[the defendant] from the consequences of the prior
prosecution.’’ (Internal quotation marks omitted.) Id.,
649–50. In my view, the Appellate Court properly
reversed the judgment of the trial court imposing the
sentence enhancement under § 53a-40b, and directed
the trial court to ‘‘vacate the sentence enhancement and
to remove the additional two years from the defendant’s
sentence.’’ Id., 650.
I would, therefore, affirm the judgment of the Appel-
late Court. Accordingly, I respectfully dissent.
1
General Statutes § 54-142a provides in relevant part: ‘‘(a) Whenever in
any criminal case, on or after October 1, 1969, the accused, by a final
judgment, is found not guilty of the charge or the charge is dismissed, all
police and court records and records of any state’s attorney pertaining to
such charge shall be erased upon the expiration of the time to file a writ
of error or take an appeal, if an appeal is not taken, or upon final determina-
tion of the appeal sustaining a finding of not guilty or a dismissal, if an
appeal is taken. . . .
‘‘(c) (1) Whenever any charge in a criminal case has been nolled in the
Superior Court . . . if at least thirteen months have elapsed since such
nolle, all police and court records and records of the state’s or prosecuting
attorney or the prosecuting grand juror pertaining to such charge shall be
erased . . . .
‘‘(e) (1) The clerk of the court or any person charged with retention and
control of such records in the records center of the Judicial Department or
any law enforcement agency having information contained in such erased
records shall not disclose to anyone, except the subject of the record, upon
submission pursuant to guidelines prescribed by the Office of the Chief Court
Administrator of satisfactory proof of the subject’s identity, information
pertaining to any charge erased under any provision of this section and
such clerk or person charged with the retention and control of such records
shall forward a notice of such erasure to any law enforcement agency to
which he knows information concerning the arrest has been disseminated
and such disseminated information shall be erased from the records of such
law enforcement agency. Such clerk or such person, as the case may be,
shall provide adequate security measures to safeguard against unauthorized
access to or dissemination of such records or upon the request of the
accused cause the actual physical destruction of such records, except that
such clerk or such person shall not cause the actual physical destruction
of such records until three years have elapsed from the date of the final
disposition of the criminal case to which such records pertain. . . .
‘‘(3) Any person who shall have been the subject of such an erasure shall
be deemed to have never been arrested within the meaning of the general
statutes with respect to the proceedings so erased and may so swear under
oath. . . .
‘‘(h) For the purposes of this section, ‘court records’ shall not include a
record or transcript of the proceedings made or prepared by an official
court reporter, assistant court reporter or monitor.’’
Although § 54-142a was amended in 2012; see Public Acts 2012, No. 12-
133, § 23; that amendment is not relevant to the present appeal. In the
interest of simplicity, I refer to the current revision of the statute.
2
General Statutes § 53a-40b provides: ‘‘A person convicted of an offense
committed while released pursuant to sections 54-63a to 54-63g, inclusive,
or sections 54-64a to 54-64c, inclusive, other than a violation of section 53a-
222 or 53a-222a, may be sentenced, in addition to the sentence prescribed
for the offense to (1) a term of imprisonment of not more than ten years
if the offense is a felony, or (2) a term of imprisonment of not more than
one year if the offense is a misdemeanor.’’
Although § 53a-40b was the subject of a technical amendment in 2010;
see Public Acts 2010, No. 10-36, § 21; that amendment has no bearing on
the merits of this appeal. In the interest of simplicity, I refer to the current
revision of the statute.
3
I agree with the background facts and procedural history set forth by
the majority and the Appellate Court in State v. Apt, supra, 146 Conn.
App. 644–46.
4
General Statutes § 54-56e provides in relevant part: ‘‘(a) There shall be
a pretrial program for accelerated rehabilitation of persons accused of a
crime or crimes or a motor vehicle violation or violations for which a
sentence to a term of imprisonment may be imposed, which crimes or
violations are not of a serious nature. Upon application by any such person
for participation in the program, the court shall, but only as to the public,
order the court file sealed.
‘‘(b) The court may, in its discretion, invoke such program on motion of
the defendant or on motion of a state’s attorney or prosecuting attorney
with respect to a defendant (1) who, the court believes, will probably not
offend in the future, (2) who has no previous record of conviction of a
crime or of a violation of section 14-196, subsection (c) of section 14-215,
section 14-222a, subsection (a) or subdivision (1) of subsection (b) of section
14-224 or section 14-227a, and (3) who states under oath, in open court or
before any person designated by the clerk and duly authorized to administer
oaths, under the penalties of perjury, (A) that the defendant has never had
such program invoked on the defendant’s behalf or that the defendant was
charged with a misdemeanor or a motor vehicle violation for which a term
of imprisonment of one year or less may be imposed and ten or more years
have passed since the date that any charge or charges for which the program
was invoked on the defendant’s behalf were dismissed by the court, or (B)
with respect to a defendant who is a veteran, that the defendant has not had
such program invoked in the defendant’s behalf more than once previously,
provided the defendant shall agree thereto and provided notice has been
given by the defendant, on a form approved by rule of court, to the victim
or victims of such crime or motor vehicle violation, if any, by registered or
certified mail and such victim or victims have an opportunity to be heard
thereon. Any defendant who makes application for participation in such
program shall pay to the court an application fee of thirty-five dollars.
No defendant shall be allowed to participate in the pretrial program for
accelerated rehabilitation more than two times. For the purposes of this
section, ‘veteran’ means any person who was discharged or released under
conditions other than dishonorable from active service in the armed forces
as defined in section 27-103. . . .
‘‘(f) If a defendant released to the custody of the Court Support Services
Division satisfactorily completes such defendant’s period of probation, such
defendant may apply for dismissal of the charges against such defendant
and the court, on finding such satisfactory completion, shall dismiss such
charges. If the defendant does not apply for dismissal of the charges against
such defendant after satisfactorily completing such defendant’s period of
probation, the court, upon receipt of a report submitted by the Court Support
Services Division that the defendant satisfactorily completed such defen-
dant’s period of probation, may on its own motion make a finding of such
satisfactory completion and dismiss such charges. . . . Upon dismissal, all
records of such charges shall be erased pursuant to section 54-142a. An order
of the court denying a motion to dismiss the charges against a defendant
who has completed such defendant’s period of probation or supervision or
terminating the participation of a defendant in such program shall be a final
judgment for purposes of appeal.’’
I note that the legislature has made several recent amendments to § 54-
56e that do not affect my analysis of the present appeal. See, e.g., Public
Acts 2015, No. 15-85, § 19; Public Acts 2015, No. 15-211, § 10. In the interest
of simplicity, I refer to the current revision of the statute.
5
I agree with the majority that the legislative history of § 53a-40b, the
sentence enhancement statute, indicates that the legislature intended that
statute, enacted in 1990, to enhance public safety by ‘‘penaliz[ing] those
who commit additional crimes while they are on pretrial release . . . .’’ I
part company from the majority, however, with respect to its conclusion
that it ‘‘would thwart that purpose to interpret § 54-142a to immunize the
defendant from a sentence enhancement for reasons that have nothing to
do with his culpability for violating the conditions of his release.’’ To the
extent that the issue before this court concerns the effect of § 54-142a, the
erasure statute, our primary focus should be on the meaning of that provi-
sion. Reduced to its logical end, the majority’s excessive reliance on the
purpose of § 53a-40b means that we should not interpret criminal statutes
or rules of evidence in ways that favor a defendant, because doing so would
frustrate their public safety purpose. This, of course, is not how we interpret
criminal statutes. See, e.g., State v. Cote, 286 Conn. 603, 615, 945 A.2d
412 (2008) (‘‘unless a contrary interpretation would frustrate an evident
legislative intent, criminal statutes are governed by the fundamental principle
that such statutes are strictly construed against the state’’ [internal quotation
marks omitted]).
6
I disagree with the majority’s observation that this legislative history
‘‘strongly supports the state’s position.’’ Because the legislative history is
silent on the topic presented by this appeal, namely, the interplay between
the erasure statute and its effect on a defendant’s pretrial release status, I
simply do not find much guidance in the recorded history standing by itself.
7
I note that Justice Shea’s concurring opinion in Morowitz superficially
appears to support the state, insofar as it addresses, and rejects the defen-
dant’s argument that the erasure statutes ‘‘preclude the prosecutor from
utiliz[ing] information he has gained in a prior criminal case where the
records have been erased’’ because, as Justice Shea contends, the erasure
statutes ‘‘are intended to preclude the use of information gained from records
that have been erased but not to protect the defendant from the use of
information concerning the underlying conduct mentioned in those records
where knowledge thereof has been acquired from other sources. The statute
was not intended to obliterate the memories of persons having knowledge
of the events that led to the previous aborted prosecution. The circumstance
that the prosecutor in this case happened to know of the prior victim because
of his contact with the earlier case in an official capacity does not bring
his calling her as a witness in the present case within the prohibition of
[General Statutes] § 54-142c.’’ State v. Morowitz, supra, 200 Conn. 453; see
also id., 452 (describing majority’s suggestion that ‘‘the prior victim indepen-
dently learned of the present prosecution and volunteered to testify’’ as
‘‘utterly fanciful in the light of the undisputed circumstance that the prosecu-
tor who tried the present case also had handled the earlier complaint that
was disposed of by a grant of accelerated rehabilitation’’ [internal quotation
marks omitted]). I do not view Justice Shea’s analysis as supporting the
majority’s conclusion in this case because it concerns only the prosecutor’s
source of the knowledge of the misconduct, namely, a prior prosecution
that had been dismissed after the defendant completed accelerated rehabili-
tation, rather than permitting the introduction of substantive evidence of
the defendant’s legal status as an arrested person.
8
‘‘Erwin Schro¨dinger . . . a Viennese physicist instrumental in the early
development of quantum mechanics, posed what has become known as the
Schro¨dinger Cat Paradox. In this thought experiment, Schro¨dinger placed
a cat inside of a box which contained an apparatus which would kill the
cat [50 percent] of the time and then, without opening the box, he pondered
whether the cat was alive or dead. [Schro¨dinger] proposed that, until he
actually opened the box, the cat was neither alive nor dead, but rather
existed in ‘wave form’ and in both states, alive and dead, simultaneously.’’
Hardin County Schools v. Foster, 40 S.W.3d 865, 872 n.6 (Ky. 2001) (Keller,
J., dissenting); see also, e.g., Kusay v. United States, 62 F.3d 192, 194 (7th
Cir. 1995); TKO Equipment Co. v. C & G Coal Co., 863 F.2d 541, 545 (7th
Cir. 1988); Busse v. United PanAm Financial Corp., 222 Cal. App. 4th 1028,
1050, 166 Cal. Rptr. 3d 520 (2014).
9
Indeed, I agree with the defendant’s argument that this court’s decision
in State v. Fagan, supra, 280 Conn. 69, is illustrative of the nature of the
status based inquiry necessary for a sentence enhancement under § 53a-
40b, as well as the significance of the arrest records—whose admission
into evidence the majority precludes in the present case—in proving a
defendant’s eligibility for that enhancement. In Fagan, in considering
whether a trial court properly canvassed a defendant who had pleaded guilty
to part B of the two part information seeking a sentence enhancement; see
id., 89; we examined whether the defendant was ‘‘entitled to a jury finding
on the question of whether he was released on bond from an arrest at the
time he committed the present offense.’’ Id., 92. This court held, under the
reasoning of the United States Supreme Court’s decisions in Apprendi v.
New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and
Blakely v. Washington, 542 U.S. 296, 301–304, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004), that ‘‘once convicted of having committed the crimes in part
A of the information, the defendant’s status at the time he committed those
crimes involved a legal determination, not a factual one, and that, accord-
ingly, he was not entitled to a jury trial on the issue of his status.’’ State v.
Fagan, supra, 93–94. After considering sister state cases holding to the
contrary, the court concluded that ‘‘the defendant’s status as to whether he
lawfully had been on release at the time of the offense for which he was
convicted, a fact that he not only reasonably could not dispute but conceded
in his briefs to this court, was a question that also did not require a jury
determination. Under our rules of practice, a defendant may be released
upon the execution of a written promise to appear or he may be released
on bond. . . . Whether the defendant was released pursuant to a bond or
his promise to appear and when he was so released are questions that
properly can be answered by mere reference to the court file. Indeed, once
the defendant was convicted under part A of the information, demonstrating
that he had committed the crimes charged on the date specified, the only
issue left open—whether he was on release from an arrest at the time—
properly could have been the subject of judicial notice.’’ (Citation omitted.)
Id., 100–101.
10
On the point of collateral consequences, I also take some guidance from
the Vermont Supreme Court’s decision in In re Unnamed Defendant, 189
Vt. 585, 15 A.3d 1039 (2011). In that case, the court dismissed a defendant’s
appeal as moot because he ‘‘received a [six month] deferred sentence on
his resisting arrest conviction. The record indicates that he complied with
the probation conditions during this period and that the deferred sentence
expired on the date specified,’’ thus requiring by statute that the conviction
be stricken and all related records and files be expunged. Id. Of particular
interest in the present case, the court rejected the defendant’s claim that
the appeal was justiciable because of the stricken conviction’s collateral
consequences, stating that the terms of the expungement statute ‘‘expressly
contradict’’ the defendant’s argument that ‘‘[t]he conviction may still show
up on [the defendant’s] criminal record as an arrest and dismissal.’’ (Internal
quotation marks omitted.) Id., 586. A sentence enhancement under § 53a-
40b strikes me as a classic example of a collateral consequence of an arrest.
See, e.g., State v. McElveen, 261 Conn. 198, 212–15, 802 A.2d 74 (2002).
11
I emphasize, however, my view that the location of the hypothetical
assault on the judicial marshal, even if it were, for example, an implicitly
incriminating location such as the well of the courtroom or the courthouse
lockup, would be evidence relevant to proving the defendant’s conduct,
properly admitted under the conduct/status distinction of State v. Morowitz,
supra, 200 Conn. 450–51.