State v. Honsch (Concurrence) ( 2024 )

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McDONALD, J., concurring in part and concurring in
the judgment. I agree with, and join, parts II and III
of the majority opinion. Specifically, I agree with the
majority that the evidence was sufficient to establish
the identity of the defendant, Robert Honsch, as the
person who murdered the victim and that the trial court
properly declined to provide the jury with an instruction
regarding fingerprint evidence. I also agree with the
result, but not the reasoning, of part I of the majority
opinion. As to part I, I agree that this court should adopt
a ‘‘permissive presumption’’ that provides that, when
the location of a killing is unknown, and the victim’s
body is found in the forum state, it may be inferred
or presumed that the death occurred in the state for
purposes of establishing territorial jurisdiction. See,
e.g., 1 A.L.I., Model Penal Code and Commentaries
(1985) § 1.03 (4), p. 34 (Model Penal Code and Commen-
taries); 4 W. LaFave et al., Criminal Procedure (4th Ed.
2015) § 16.4 (c), p. 931; see also, e.g., State v. McDowney,
49 N.J. 471, 475, 231 A.2d 359 (1967) (‘‘circumstantial
evidence [such] as the presence of the body within the
[s]tate has been held sufficient to allow the drawing
of an inference that the crime was committed at that
place’’). I write separately with respect to part I of the
majority opinion to emphasize that this ‘‘permissive’’
or ‘‘rebuttable’’ presumption is effectively a conclu-
sive presumption.
As the majority opinion aptly lays out, there is signifi-
cant support for our adoption of a presumption that
permits an inference that a homicide occurred in the
state where the victim’s body was found for purposes
of establishing jurisdiction when there is no other evi-
dence concerning the location of the homicide. See part
I of the majority opinion. At least twenty states have
codified the presumption in legislation; see footnote 9
of the majority opinion and accompanying text; and
seven other states apply the presumption as a matter
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State v. Honsch
of common law. See footnote 10 of the majority opinion
and accompanying text. More important, there is a
strong public policy rationale that weighs heavily in
favor of adoption. See part I of the majority opinion.
The presumption ‘‘endeavors to prevent abortion of the
prosecution in cases [in which] the body of the victim
is found within the state but it is unclear where the
death, injury, or conduct occurred. It may be provable,
for example, that the body was thrown from a car driven
by the defendant at a place near the state line and that
the defendant owned the lethal weapon. That alone
might make a circumstantial case of murder, without
establishing a locus for jurisdiction.’’ (Footnote omit-
ted.) Model Penal Code and Commentaries, supra,
§ 1.03, comment 8, pp. 63–64. As we have explained,
when ‘‘the place of [the victim’s] death is unknown or
[when] there [is] a variance in the proof thereof . . .
[n]o person should escape punishment for murder
because he is so clever as to conceal . . . the place
where the victim was killed or died.’’ (Internal quotation
marks omitted.) State v. Weinberg, 215 Conn. 231, 252,
575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430,
112 L. Ed. 2d 413 (1990). In short, a presumption ensures
that a homicide will not go unprosecuted simply
because the culprit was able to conceal the location of
the crime.
Nevertheless, I think it is important to recognize the
presumption for what it is—an effectively conclusive
presumption. See, e.g., Francis v. Franklin, 471 U.S.
307, 314 n.2, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985)
(‘‘A mandatory presumption may be either conclusive
or rebuttable. A conclusive presumption removes the
presumed element from the case once the [s]tate has
proved the predicate facts giving rise to the presump-
tion. A rebuttable presumption does not remove the
presumed element from the case but [instead] requires
the jury to find the presumed element unless the defen-
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4 ,0 0 Conn. 0State v. Honsch
dant persuades the jury that such a finding is unwar-
ranted.’’). Although courts often refer to this
presumption as either ‘‘rebuttable’’ or ‘‘permissive,’’ the
reality is that a criminal defendant has no meaningful
ability to rebut the presumption without incriminating
himself in the crime. Indeed, the majority explains that,
‘‘[i]f the defendant wishes to defeat jurisdiction, he gen-
erally must make some showing as to where the death
or injury took place. That showing may, in turn, lay the
predicate for a proceeding in the proper jurisdiction.’’
(Internal quotation marks omitted.) Part I of the major-
ity opinion, quoting Model Penal Code and Commentar-
ies, supra, § 1.03, comment 8, p. 64. But, in most
situations, the ability to make that showing will run
headlong into the defendant’s fifth amendment privilege
against self-incrimination. Cf. State v. Wogenstahl, 150
Ohio St. 3d 571, 582, 84 N.E.3d 1008 (2017) (French,
J., concurring) (questioning constitutionality of Ohio
statute that requires conclusive presumption that crime
was committed in Ohio if it ‘‘cannot reasonably be deter-
mined in which [state] it took place’’ (internal quotation
marks omitted)), cert. denied, 584 U.S. 1004, 138 S.
Ct. 2576, 201 L. Ed. 2d 298 (2018). How is a criminal
defendant to make a showing that the homicide
occurred in another state without implicating himself
in the crime?1 However, given the strong public policy
rationale for the adoption of the presumption, and the
significant legal support for its adoption, I agree with
the majority that it is appropriate for this court to adopt
the presumption.
For the foregoing reasons, I respectfully concur in
part.
1
I recognize, as the majority posits, that there may be circumstances in
which it would be ‘‘feasible’’ for a defendant to present noninculpatory
evidence as to the location of the crime. Footnote 11 of the majority opinion
and accompanying text. In practice, however, it would be highly unlikely
that a defendant could muster such evidence in a manner sufficient to rebut
the presumption without incriminating himself.