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December 28, 2004

Court Affirms Capital Felony Conviction of Ivo Colon; Sends Case Back For New Penalty Phase Hearing

Last week the Connecticut Supreme Court issued decisions in two cases:

In State v. Colon (SC16446) (Concurrence) (Concurrence) (Concurrence and Dissent), a jury convicted Ivo Colon of murder and capital felony and sentenced him death in connection with the death of two year old Keriana Tellado, whose head he repeatedly smashed against a shower wall. On direct appeal to the Supreme Court, Colon raised multiple challenges to both the guilt and penalty aspects of his conviction. The Supreme Court affirmed his conviction, but reversed the judgment imposing the death penalty and remanded the case for a new penalty phase hearing.

Although space limitations preclude a full review of the decision, two issues in particular are noteworthy. First, based on its 2003 decision in State v. Rizzo, 266 Conn. 171 – which was decided after Colon’s trial – the Court held that the trial court erred in instructing the jury on how to balance mitigating factors against aggravating factors. In particular, the trial failed to instruct the jurors that, in order to sentence Colon to death, they had to find that any aggravating factors did not merely outweigh any mitigating factors, but outweighed them beyond a reasonable doubt.

In addition, the Court rejected Colon’s claim that the trial court improperly denied his right of allocution, that is, his right to make an unsworn personal statement to the trial court and to present information in mitigation of his sentence. The Court held that neither the Practice Book, common law, nor the federal or state constitutions guaranteed a defendant a right of allocation within the structured setting of a capital sentencing hearing.

In Manifold v. Ragaglia (SC17150) the Supreme Court affirmed the judgment of the trial court, holding that the qaulified immunity extended by Section 17a-101e(b) to mandatory reporters of suspected child abuse extended to physicians who examine children whom the state already suspects as having been the victims of abuse. In so holding, the Court considered both the text and remedial purpose of the statute and concluded that qualified immunity for secondary reporters would only further the public's interest in rooting out child abuse. The Court also noted that such immunity was unlikely to be abused because intentional misconduct in reporting was a criminal offense and because the immunity would not shield acts of medical malpractice; i.e., while a secondary reporter is without liability for an incorrect (but good faith) report, the secondary reporter would still be subject to liability for any injuries caused by independent acts of medical malpractice committed in connection with the examination that led to the report of suspected abuse.

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December 21, 2004

The state Supreme Court issued two decisions last week:

State v. Boyd (SC17192), involved the interpretation of General Statutes § 53a-39, which permits a court to “modify a definite sentence of three years or less” without the agreement of the state’s attorney. (Emphasis supplied.) The defendant had admitted to a parole violation and, as a result, was sentenced to two years and one day incarceration, plus two years of special parole. On appeal, the defendant argued that the two years of special parole should not be included in the determination of the length of his “definite sentence” and that the trial therefore erred in holding that it lacked the authority to modify his sentence without the agreement of the state’s attorney. The state argued the contrary position. The Supreme Court agreed with the defendant, concluding that the term “definite sentence” in § 53a-39 did not include the period of special parole.

In Gordon v. H.N.S. Management Co. (SC17139), the Court considered whether the defendant, a publicly held company which operates the public bus transit system in the Hartford, New Haven and Stamford areas under a management contract with the state department of transportation, was entitled to assert a defense of sovereign immunity. The plaintiffs in the consolidated cases had been occupants of busses that were involved in accidents. Both plaintiffs sued the defendant, arguing that it was required under state law to carry uninsured/underinsured motorist coverage and that they were entitled to such coverage for injuries they suffered in the accidents. The defendant argued that it was an “arm of the state” and, as such, was entitled to sovereign immunity. Applying a multi-factor test for determining whether a corporate entity is an “arm of the state,” the Supreme Court held that the evidence supported such a determination. The Court remanded the case was instructions to dismiss the plaintiffs’ complaints.

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December 14, 2004

Last week the Connecticut Supreme Court released two opinions.

Northeast Ct. Economic Alliance, Inc. v. ATC Partnership (SC17083) was an appeal from the trial court’s determination of “just compensation” in a condemnation case involving commercial property in Willimantic, CT. The property at issue suffered from environmental contamination, which condition was a central issue in the trial court’s determination of the fair market value of the property. The plaintiff contended, inter alia, that the trial court erred in considering, for valuation purposes, the availability of $3,000,000 in state grants that could be used to remediate the contamination. The Supreme Court disagreed, holding that the trial court properly included the availability of those funds in its analysis of the fair market value of the property.

In Friedman v. Meriden Orthopedic Group, P.C. (SC17047), the question before the Court was whether the trial court erred in excluding a portion of the plaintiff's expert's deposition testimony concerning the standard of care applicable to the defendant, an orthopedic surgeon, whose alleged negligence had injured the plaintiff during back surgery. General Statutes section 52-184c(d)(2) permits a health care provider who possesses sufficient training, experience and knowledge to testify to the standard of care in a particular field, even if the expert practices in a different field. The Court held that the plaintiff had failed to lay an adequate foundation during the deposition of his expert -- a board certified neuroradiologist -- as to whether he was testifying about the standard of care applicable to a neuroradiologist or to an orthopedic surgeon. Absent such a foundation, the trial court properly excluded the testimony of the plaintiff's expert on that issue.

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December 07, 2004

The Connecticut Supreme Court issued two decisions last week.

In DaimlerChrysler Corp. v. Allard (SC17175), the Court considered whether a panel of arbitrators exceeded their authority under Connecticut’s “Lemon Law” (General Statutes section 42-179 et seq.) when they found that the defendant’s vehicle – a 2000 Jeep Cherokee Sport – was defective under the statute and required the plaintiff to give her a new Jeep Grand Cherokee Laredo as a replacement vehicle. (The Sport line had been discontinued.) The plaintiff argued that, under the Lemon Law statute, the arbitrators only had the power to award an “identical or comparable” replacement vehicle and that the Laredo was not comparable to the Sport. The Court rejected the plaintiff’s argument the issue of comparability was a question of law warranting de novo review, holding instead that whether the Laredo was comparable to the Sport was a question of fact and that substantial evidence in the record support the arbitrators’ factual finding.

In State v. Pepper (SC17075), the Court, in a per curiam opinion, affirmed the Appellate Court’s decision upholding the defendant’s sexual assault conviction. Adopting the Appellate Court’s opinion as its own, the Court held that the Appellate Court correctly rejected the defendant’s argument that the trial court improperly precluded him from cross-examining the victim about a prior suicide attempt. The defendant contended that evidence of the suicide attempt, which allegedly occurred because the victim was fearful that her husband would discover that she had engaged in an extra-marital affair, was relevant to his claim that the victim had fabricated her sexual assault claim because of the same fear.

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