# State v. Brown

> Supreme Court of Connecticut · January 26, 1971 · 160 Conn. 346

URL: https://www.frixlaw.com/law-library/cases/9700407

## Case

- **Full name:** State of Connecticut v. Chester Brown
- **Court:** Supreme Court of Connecticut
- **Decided:** January 26, 1971
- **Citations:** 160 Conn. 346; 279 A.2d 554; 1971 Conn. LEXIS 690
- **Precedential status:** Published
- **Opinion:** Dissent by Cotter
- **Judges:** Alcorn, House, Cotter, Ryan, Shapiro
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700407

## How later opinions describe it (automated extraction)

- discussing retroactivity of newly enunciated constitutional principles

## Opinion text

Cotter, J.
(dissenting). This case is on direct appeal to this court and a final judgment has not yet been rendered. I cannot, therefore, agree with the majority.
*356 The sole question presented in this appeal is whether this defendant is entitled to the benefit of the rule of substantive law involving a federal constitutional right established in Griffin v. California, 380 U.S. 609 , 85 S. Ct. 1229 , 14 L. Ed. 2d 106 . In resolving this issue the controlling decisions are O’Connor v. Ohio, 385 U.S. 92, 93 , 87 S. Ct. 252 , 17 L. Ed. 2d 189 , and Tehan v. Shott, 382 U.S. 406 , 86 S. Ct. 459 , 15 L. Ed. 2d 453 . In Tehan, at page 409, footnote 3, the court held that Griffin should be applied to cases pending on direct appeal at the time the decision in Griffin was announced. This appeal falls squarely within that decision. Mr. Justice Stewart, speaking for the court in Tehan, stated: “Nor is there any question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced. Cf. O’Connor v. Ohio , ante, p. 286.” The reference was made to the first O’Connor case, i.e., 382 U.S. 286 , 86 S. Ct. 445 , 15 L. Ed. 2d 337 . In that case the question at issue had not been raised at any time in the Ohio courts and was not raised until a motion for rehearing of a petition for a writ of certiorari was made in the United States Supreme Court. The Supreme Court of the United States, however, on a rehearing, granted certiorari, vacated the judgment and remanded the case to the Supreme Court of Ohio. Thereafter, the United States Supreme Court in the second O’Connor case in reversing the Supreme Court of Ohio, held that the petitioner was not precluded from relying on Griffin, “since his conviction was not final when the decision in Griffin was rendered” ; that “Griffin applied to all convictions which had not become final on the date of the Griffin judgment”; that the petitioner was not barred from asserting “this federal right”; and that the peti *357 tioner “was seeking direct review here when Griffin was handed down.” O’Connor v. Ohio, 385 U.S. 92, 93 , 87 S. Ct. 252 , 17 L. Ed. 2d 189 .
In a recent case, similar on its facts to this case now under consideration on this appeal, which the Connecticut Supreme Court stated was indistinguishable from the second O’Connor case, the court decided that it was impelled to conclude that the appellant was not barred from asserting, on appeal, his federal constitutional right against self-incrimination. State v. Vars, 154 Conn. 255, 271, 272 , 224 A.2d 744 . We followed the statement contained in footnote 3 of the Tehan case, page 409, and Chief Justice King, writing the opinion, stated that there was no question that the Griffin rule must be applied to cases pending on “direct review at the time it was announced” and the court reversed a criminal conviction. State v. Annunziato, 154 Conn. 41, 44 , 221 A.2d 57 . The defendant is before this court on direct appeal, there has been no final judgment rendered and “where on habeas corpus it has been properly determined that a right of appeal required by the federal constitution has been denied, any rule restricting an appeal merely because of a lapse of time necessarily is ineffective to preclude an appeal in accordance with federal constitutional requirements.” Fredericks v. Reincke, 152 Conn. 501, 508 , 208 A.2d 756 .
The United States Supreme Court has not indicated an intention to abandon the limited application of retroactivity of this rule of criminal procedure of constitutional dimension enunciated in O’Connor and followed by us in Annunziato and Vars . In a number of eases noted in the majority opinion decided after the decision in O’Connor it has continued to apply the principle of full retroactivity. *358 See cases such as Roberts v. Russell, 392 U.S. 293 , 88 S. Ct. 1921 , 20 L. Ed. 2d 1100 , stating (p. 295) that “the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined” (the case before us likewise involves a question of credibility); Berger v. California, 393 U.S. 314 , 89 S. Ct. 540 , 21 L. Ed. 2d 508 , in which it was stated (p. 315) that the inability to cross-examine at trial a witness absent from the jurisdiction may have had a significant effect on the “integrity of the fact finding process” and held that the case of Barber v. Page, 390 U.S. 719 , 88 S. Ct. 1318 , 20 L. Ed. 2d 255 , must be given full retroactive application; and Price v. Georgia, 398 U.S. 323 , 90 S. Ct. 1757 , 26 L. Ed. 2d 300 .
A review of the cases reversing prior doctrine in the area of the criminal law discloses the United States Supreme Court’s concern with the impact a reversal of prior doctrine might have on law enforcement and on the administration of justice and how these considerations affect the determination of retroactivity. See cases such as DeStefano v. Woods, 392 U.S. 631, 633 , 88 S. Ct. 2093 , 20 L. Ed. 2d 1308 , and Stovall v. Denno, 388 U.S. 293, 297 , 87 S. Ct. 1967 , 18 L. Ed. 2d 1199 . If “a very great number of eases” would be affected; if “all convictions for serious crimes . . . would be in jeopardy”; and if “the adverse effects on the administration of justice would likely be substantial,” the Supreme Court of the United States would limit the new doctrine to prospective application. DeStefano, supra, 634, 635 . The doctrine of O’Connor does not fall into such an extreme category. It is precise and clear and since its advent in 1966 there have only been four cases, Vars, Annunziato, and Wilhas (which cases we now overrule) and the present appeal arising out of that *359 decision. In fact, in discussing the rule of O’Connor , the United States Supreme Court said, “[t]hat impact is insignificant,” in comparison with other new constitutional doctrines announced in decisions of the United States Supreme Court. Stovall, supra, 300 .
In the present case, the accused was indigent; he was represented by the public defender in 1961 at his trial, who notified him that he would not represent him in an appeal, although he informed the trial court the defendant intended to file an appeal; and he notified, in 1961, the clerk of the Superior Court of his intention to appeal. The trial court specifically found that the petitioner-accused was effectively frustrated in his efforts to take an appeal, did not understandingly and knowingly forego a direct appeal and did not deliberately bypass the orderly procedure of an appeal. Fay v. Noia, 372 U.S. 391, 439, 440 , 83 S. Ct. 822 , 9 L. Ed. 2d 837 . Presumably, the Connecticut trial courts have been following the doctrine of O’Connor since its announcement and the tenuous fact of the filing in court of a substantia] number of similar cases having an adverse effect on the administration of justice appears remote. The considerations enunciated by the United States Supreme Court are absent herein so that it is reasonable to suppose that the chance that the court mil reverse O’Connor seems unlikely. I see no justification for a different reading of O’Connor v. Ohio, 385 U.S. 92 , 87 S. Ct. 252 , 17 L. Ed. 2d 189 , than that contained in the original opinion. One can make no prophecy on the demise of O’Connor until it is set aside by the United States Supreme Court.
I would find error, set the judgment aside and order a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700407. Public record. Not legal advice.