Appendix — Skakel v. Connecticut (No. 06-52)

Suge Co Court, U.S. mn Supreme Court, US.

LED

Q6-52 JuL12 2006. 06-52 Ui lu 2006

OFFICE OF THE CLERK OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

MICHAEL SKAKEL,

Petitioner,

Vv.

STATE OF CONNECTICUT,

Respondent.

On Petition for a Writ Of Certiorari to the

Supreme Court of Connecticut

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

HUBERT J. SANTOS Counsel of Record

Hope C. SEELEY DAVID DEBOLD

SANTOS & SEELEY P.C. GIBSON, DUNN & CRUTCHER LLP

51 Russ STREET 1050 CONNECTICUT AVENUE, NW

HARTFORD, CT 06106 WASHINGTON, D.C. 20036-5306

(860) 249-6548 (202) 955-8500

Counsel for Petitioner

Michael Skakel

APPENDICES

ETS scerasweseneosevonaseooeosovovess la

ai iccsrstescnserersveeceserecscesceseesoeseee L58a

C Constitutional Provisions .............:ccccecseceseeeeeeeerees 160a

Be NOENEINS CHENO DUMTIIIOS......csccsvcesvcocessevessveseevecesees 162a

E_ Proceedings Before The Honorable

i cccsnnnenconcens 167a

F_ Brief of the State of Connecticut- Appellee........... 235a

G Motion for Reconsideration, To Reargue And

For Reconsideration and Reargument En Banc .... 260a

H_ State’s Opposition To The Defendant’s Motion

For Reargument and Reconsideration or

Reargument and Reconsideration En Banc............ 288a

la

APPENDIX A

Supreme Court of Connecticut.

STATE of Connecticut

V.

Michael SKAKEL.

No. 16844.

Argued Jan. 14, 2005.

Decided Jan. 24, 2006

SULLIVAN, CJ. and KATZ, PALMER,

VERTEFEUILLE and ZARELLA, Js.

Opinion

PALMER, J.

On October 31, 1975, fifteen year old Martha Moxley

was found bludgeoned to death in a wooded area on the

grounds near her family home in Greenwich. No one was

charged in connection with her murder until twenty-five

years later, when the defendant, Michael Skakel, a fifteen

year old neighbor of the victim at the time of her death, was

arrested and charged with the crime. The case initially was

brought in the Superior Court for Juvenile Matters and,

thereafter, transferred to the regular criminal docket of the

Superior Court. Thereafter, the case was tned to a jury,

which found him guilty of murder in violation of General

2a

Statutes (Rev. to 1975) § 53a-54a (a).! The trial court ren-

dered judgment in accordance with the jury verdict,2 from

which the defendant appealed. On appeal, the defendant

claims that: (1) his case improperly was transferred from the

docket for juvenile matters to the regular criminal! docket of

the Superior Court; (2) his prosecution was time barred by

the five year statute of limitations for felonies that was in ef-

fect when the victim was murdered in 1975; (3) the state

failed to disclosé certain exculpatory evidence in violation of

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963), thereby depriving him of his right to a fair trial;

(4) the state’s attorney engaged in pervasive misconduct dur-

ing closing argument in violation of the defendant’s right to a

fair trial; (5) the trial court improperly permitted the state to

introduce into evidence the prior sworn testimony of a certain

witness in violation of the defendant’s constitutionally pro-

tected right of confrontation; and (6) the trial court improp-

erly permitted the state to present evidence of several in-

criminating statements that the defendant made while a resi-

dent at a school for troubled adolescents in Maine. The de-

fendant also challenges the propriety of several other eviden-

tiary rulings of the trial court. We reject each of the defen-

dant’s claims and, accordingly, affirm the judgment of the

trial court.

1 General Statutes (Rev. to 1975) § 53a-54a provides in relevant part:

“(a) A person is guilty of murder when, with intent to cause the death of

another person, he causes the death of such person....”

2 The trial court sentenced the defendant to a term of twenty years to

life imprisonment.

3 The defendant appealed from the judgment of the trial court to the —

Appellate Court. Because the defendant should have taken his appeal

directly to this court; see General Statutes § 51-199(b)(3); his case was

transferred to this court pursuant to Practice Book § 65-4.

3a

The jury reasonably could have found the following

facts. Sometime between 6:30 and 7:30 p.m. on the evening

of Thursday, October 30, 1975, the victim left her home on

Walsh Lane, located in the Belle Haven section of Green-

wich, with a friend, Helen Ix, to play and socialize in and

around the neighborhood. It was the night before Halloween,

commonly referred to as “mischief night,” an evening when

the neighborhood children were known to engage in playful

mischief. The victim and Ix soon were accompanied by

other friends who lived nearby. Several times that night, the

group stopped by the Skakel home, which was located on

Otter Rock Drive.4 The first time they did so, the defendant

was dining at the Belle Haven Club with his siblings, Rush-

ton Skakel, Jr., Julie Skakel, Thomas Skakel, John Skakel,

David Skakel and Stephen Skakel, their cousin James

Dowdle,> their tutor Kenneth Littleton, and Julie Skakel’s

friend Andrea Shakespeare. The Skakel group arrived home

from dinner before 9 p.m., at which time the victim and her

friends again visited the defendant’s house.

Shortly thereafter, the defendant, joined by the victim, Ix

and Jeffrey Byrne, a friend of the victim, entered one of the

Skakel family vehicles, a Lincoln Continental, which was

parked on the Skakels’ side driveway, to talk and listen to

music. Thomas Skakel, the defendant’s then seventeen year

old brother, soon joined the group. Sometime before 9:30

p.m., the group was interrupted by Rushton Skakel, Jr., and

John Skakel, who needed to use the Lincoln Continental to

drive Dowdle home, where they planned to watch a televi-

sion program scheduled to air at 10 p.m. Consequently,

Thomas Skakel, Ix, Byrne and the victim exited the car. As

4 The victim’s home was located on Walsh Lane, diagonally across the

street from the defendant’s home, which faced Otter Rock Drive.

5 Dowdle also was known as James Terrien.

4a

Ix began to leave the Skakel property with Byrne, she ob-

served Thomas Skakel and the victim engaging in flirtatious

horse play at the other end of the driveway. Feeling “a bit

embarrassed by the flirting,” Ix left to go home.®

The victim’s mother, Dorothy Moxley, expected that the

. victim would be home that evening by 10:30 or 11 p.m. At

about 1:30 or 2 a.m., upon discovering that her daughter had

not returned home, she sent the victim’s brother, John Mox-

ley, out to look for her. Dorothy Moxley thereafter tele-

phoned anyone who she thought might know the victim’s

whereabouts, including the defendant’s family, whom Doro-

thy Moxley called several times. Dorothy Moxley’s efforts

to locate the victim were unsuccessful, and she eventually

contacted the Greenwich police department, which dis-

patched an officer to the Moxley home. The officer made a

missing persons report and briefly searched the surrounding

area. The next morning, at about 8:30 a.m., Dorothy Moxley,

believing that the victim may have fallen asleep in the Skakel

family motor home that usually was parked in the Skakels’

driveway, went to the defendant’s house. The defendant an-

swered the door, appearing “hungover” and dressed in jeans -

and a T-shirt. The defendant informed Dorothy Moxley that

6 The trial testimony was less than definitive as to whether the defen-

dant had accompanied his brothers when they drove Dowdle home or

whether he had stayed behind with the victim and the others. For exam-

ple, Shakespeare testified that the defendant had stayed behind and did

not accompany his brothers to Dowdile’s home that night. Shakespeare,

however, was unable to articulate the basis of her recollection and con-

ceded that she had no specific memory either of the Lincoln Continental

leaving without the defendant or seeing the defendant in the house after

the car had departed for Dowdle’s home. Rushton Skakel, Jr., John

Skakel and Dowdle all testified that the defendant had accompanied them

to Dowdle’s home that evening.

Sa

the victim was not at his home, and an inspection of the mo-

tor home by a Skakel employee confirmed that she was not

there either.

Later that day, at about noon, a neighborhood friend dis-

covered the victim’s dead body under a large pine tree in a

wooded area on the Moxley property. The victim was lying

facedown, with her pants and panties pulied down around her

ankles. Forensic tests revealed that the victim had died from

multiple blunt force traumatic head injuries. A large quantity

of blood was discovered in two areas in a grassy region ap-

proximately seventy feet from the victim’s body, with a dis-

tinct drag path leading from the pools of blood to the location

where the victim’s body was found. The victim likely was

assaulted at or near the farther end of her circular driveway

and then dragged approximately eighty feet to the pine tree

under which her body subsequently was discovered. Rem-

nants of the murder weapon, a Tony Penna six iron golf club,

also were found at the crime scene. The head of the golf club

and an eight inch section of its shaft were found on the circu-

lar driveway, approximately 116 feet from the area where the

large accumulation of the victim’s blood was found. Another

piece of the shaft was discovered on the grassy area near the

two large pools of blood. The remaining part of the shaft at-

tached to the club handle never was found.

Harold Wayne Carver II, a forensic pathologist and the

state’s chief medical examiner, testified regarding the find-

ings of the original autopsy performed by then chief medical

examiner Elliot M. Gross, also a forensic pathologist. Carver

stated that the victim’s injuries appeared consistent with hav-

ing been inflicted by a golf club. In addition to the fatal head

injuries, the victim had been stabbed in the neck with a piece

of the golf club shaft. According to Carver, Gross had used

an ultraviolet light to detect the presence of semen on the vic-

tim’s pubic region and also had taken vaginal and anal

swabs. No semen was found in those areas, however. Noth-

6a

ing in the autopsy report indicated that the ultraviolet light

had been applied to the victim’s buttocks or to other parts of

the victim’s body. With respect to the time of death, Carver

testified that the victim had been dead for some time before

her body was found. He further opined that the time of death

more likely was closer to 9:30 p.m. on October 30, 1975,

when she was last seen alive, rather than noon the following

day, when her body was discovered. Because the autopsy

was conducted twenty-four hours after the discovery of the

victim’s body, a more precise time of death could not be as-

certained. 7

Henry Lee, a forensic scientist and the former state chief

criminalist, reviewed the documents, photographs and physi-

cal evidence compiled by the investigators and performed a

partial reconstruction of the crime scene. On the basis of his

investigation, Lee testified as to the likely nature and se-

quence of events leading up to the victim’s death. In particu-

lar, he indicated that the golf club that was used to assault

and kill the victim probably had broken into pieces from the

force with which the victim had been struck. This force, ac-

cording to Lee, likely propelled the head of the golf club, and

a piece of its shaft, over seventy feet, from the location of the

fatal assault to the location inside the circular driveway

where those pieces subsequently were discovered. Accord-

7 The evidence revealed that residents in the neighborhood heard a

disturbance between 9:30 and 10 p.m. on October 30, 1975, near the

Moxley property. Dorothy Moxley testified that, around that time, she

heard a commotion coming from the general direction of the area where

the victim’s body subsequently was discovered. She recalled hearing

dogs barking and what sounded like excited young voices. Ix testified

that her dog began to bark incessantly shortly after 9:30 p.m. David

Skakel also recalled hearing dogs barking at approximately 10 p.m. that

night.

7a

ing to Lee, the remaining piece of the golf club shaft then

was used as a sharp weapon to stab the victim. Lee further

testified that, in light of the amount of blood found on the

inside of the victim’s jeans and panties, those garments likely

were pulled down before the assault occurred. Lee also

stated that the absence of vertical blood drippings on the vic-

tim’s shoes and jeans indicated that the victim was lying on

the ground when the perpetrator inflicted the injuries to her

head and neck.

James Lunney, a detective with the Greenwich police

department in 1975, testified that, on the day that the victim’s

body was discovered, he briefly visited the defendant’s home

and noticed a barrel containing several items, including golf

clubs, in a hallway near the rear of the home. Lunney testi-

fied that one of the golf clubs, a Tony Penna four iron, later

was seized from the property with the written consent of the

defendant’s father. Thomas G. Keegan, a captain in the de-

tective division of the Greenwich police department in 1975,

testified that an examination of thé seized golf club and the

golf club parts found at the crime scene revealed that the

murder weapon came from the defendant’s home.®

In the days and months following the victim’s murder,

the Greenwich police conducted numerous interviews in fur-

therance of its criminal investigation into the victim’s death.

8 The seized golf club had two labels affixed to the shaft just below the

handle of the grip. One label, from the Greenwich Country Club, indi-

cated that the club had belonged to “Mrs. R.W. Skakel” of “Greenwich,

~ Conn.,” the defendant’s deceased mother. Keegan testified that, along

with the visible similarities between the murder weapon and the club

seized from the Skakel home, namely, the brand and the make, a crimi-

nalist’s examination of the murder weapon and the seized club revealed

that the markings on the heads of the clubs were consistent with the two

clubs previously having come in contact with one another.

8a

The defendant and his siblings were among those interviewed

in the early stages of that investigation. On November 15,

1975, the defendant, who was accompanied by his father,

gave a tape-recorded interview to the Greenwich police at the

police station. Responding to inquiries concerning his

whereabouts on the night of the murder, the defendant ex-

plained that he had accompanied his brothers and Dowdle to

Dowdle’s home, which was about twenty minutes away, and

watched the television show “Monty Python’s Flying Cir-

cus.” According to the defendant, he returned to his home

around 10:30 or 11 p.m.,? and went to bed about fifteen min-

utes later. When asked specifically about whether he left the

house after he went to his bedroom that night, the defendant

responded, “no.” The defendant acknowledged, however,

that, on other occasions, he had left his home after ostensibly

retiring to his room for the night.

In 1977, two years following the victim’s murder, the

defendant revealed certain feelings of guilt and remorse to

Larry Zicarelli, who then was employed by the defendant’s

family as a driver and general handyman. While being

driven by Zicarelli to an appointment in New York City, the

defendant, distraught from an earlier altercation with his fa-

ther, told Zicarelli that he “had done something very bad”

and that he “either had to kill himself or get out of the coun-

try.” On another occasion, Zicarelli and the defendant were

stopped in traffic on the Triborough Bridge in New York on

their way home when the defendant “opened the [car] door,

started to jump out of the car and ran to the side ... of the

9 Dowdle and oe Skakel, Jr., corroborated the defendant’s state-

ment that he had spent part of that evening at Dowdle’s home watching

television. Shakespeare, however, recalled seeing the defendant at his

home after Dowdle and Rushton Skakel, Jr., departed for Dowdle’s home

in the Lincoln Continental.

9a

bridge.” Zicarelli ran after the defendant and forced him

back into the car. As Zicarelli was proceeding to the driver’s

side door, the defendant again exited the car and ran toward

the other side of the bridge. Zicarelli once again hurried to-

ward the defendant and forced him back into the car. Just

before Zicarelli and the defendant arrived at the Skakel

home, Zicarelli asked the defendant, “[W]hy would [you]

want to do what [you were] trying to do?” The defendant

responded that, “if [you] knew what [I] had done, [you]

would never talk to [me] again.”!© Immediately following

this incident, Zicarelli terminated his employment with the

Skakels.!!

From 1978 to 1980, the defendant was a resident at the

Elan School, a residential facility for troubled adolescents

located in Poland Springs, Maine. Several former Elan resi-

dents testified about the deplorable conditions at the institu-

tion, which employed a behavioral modification approach

predicated on controversial techniques of intimidation, con-

frontation and humiliation of its residents. As a result, Elan

10 On cross-examination, defense counsel asked Zicarelli whether he

was aware that, on the night before this incident, the defendant “had slept

in his dead mother’s dress and felt bad about it ....” Zicarelli responded

that he had been unaware of any such incident. Julie Skakel testified that

the defendant had contemplated jumping off the Triborough Bridge be-

cause he felt guilty about having slept in his deceased mother’s dress.

11 The state also introduced the testimony of Matthew Tucharoni, who

stated that, in the spring of 1976, the defendant, accompanied by Rushton

Skakel, Jr., and Julie Skakel, came to the barbershop in Greenwich where

Tucharoni then was employed and inquired about a haircut. Tucharoni

testified that while he was preparing to cut the defendant’s hair, he over-

heard the defendant say, “I am going to kill him.” According to Tu-

charoni, Julie Skakel responded, “you can’t do that,” and the defendant

replied, “Why not? I did it before....”

10a

residents regularly endured mental and physical abuse at the

hands of their peers and Elan staff members. While a resident

at Elan, the defendant frequently was confronted and interro-

gated about his involvement in the victim’s murder. For ex-

ample, Charles Seigen, who was enrolled at Elan with the

defendant from 1978 to 1979, testified that he recalled at-

tending two or three group therapy sessions, supervised by a

staff member and typically attended by eight residents, dur-

ing which the defendant was confronted about the victim’s

murder. According to Scigen, the defendant sometimes re-

sponded to such probing with annoyance. On other occa-

sions, however, the defendant became very upset, cried and

stated that he did not know if he had done it. The defendant

also stated in these group sessions that, on the night of the

victim’s murder, he was “blind drunk” and “stumbling.” !2

12 Seigen also described the nature of the “general meetings” at Elan,

which were convened to confront residents about specific issues. Accord-

ing to Seigen, “[a] general meeting was probably the scariest word that

you would hear when you were at Elan.” A typical general meeting,

which was attended by 100 or more Elan residents and staff, focused on

one or two residents who were singled out for violating Elan rules. Sei-

gen recalled that the defendant was the subject of a general meeting as a

result of his failed attempt to run away from the facility. Seigen stated

that he first learned of the defendant’s possible involvement in the vic-

tim’s murder when it was announced at a general meeting by Joseph

Ricci, Elan’s executive director. Elizabeth Arnold, another former Elan

resident, testified that, at that particular genera] meeting, which lasted

approximately three hours, Ricci continuously had confronted the defen-

dant about various issues and that four or five Elan residents “brutalized”

the defendant in a boxing ring. Other former residents of Elan also testi-

fied about the details of the torment that the defendant had endured at this

meeting, including accusations leveled against the defendant that he had

killed the victim. The defendant’s initial response to this interrogation

[Footnote continued on next page]

lla

Dorothy Rogers, another former resident of Elan, testi-

fied that, on one occasion, when she and the defendant were

talking at an Elan social function, the defendant told her that

he had been drinking on the night of the murder and that he

could not recall whether he was involved in the victim’s

death. The defendant further explained to Rogers that his

family had enrolled him at Elan because they feared that he

may have murdered the victim and wanted him in a location

far removed from the investigating officers. Gregory Cole-

man, a resident at Elan from 1978 to 1980, testified about an

exchange that he had had with the defendant while Coleman

stood “guard” over the defendant following the defendant’s

failed escape attempt from Elan. During this conversation,

the defendant confided in Coleman about murdering a girl

who had rejected his advances. According to Coleman, the

defendant had admitted killing the girl with a golf club in a

wooded area, that the force with which he had hit her had

caused the golf club to break in half, and that he had returned

to the body two days later and masturbated on it. John Hig-

gins, another former resident of Elan, recounted certain emo-

tional admissions that the defendant had made to him while

the two were on guard duty one night on the porch of the

men’s dormitory at Elan. In particular, Higgins testified that

the defendant had told him that, on the night of the murder,

there was a “party of some kind or another” at the defen-

{Footnote continued from previous page]

was to deny his involvement in the murder. After several rounds in the

boxing ring, however, the defendant stated, “I don’t know” or “I don’t

remember” in response to questioning regarding his involvement in the

murder. During the course of his enrollment at Elan, the defendant also

was forced to wear a large cardboard sign around his neck, another form

of punishment at Elan. The sign read, “Confront me on why I murdered

Martha Moxley,” or words to that effect.

12a

dant’s home. The defendant also told Higgins that he re-

membered rummaging through his garage looking for a golf

club, running through the woods with the club and seeing

pine trees. Higgins further stated that, as the conversation

continued, the defendant’s acknowledgment of his culpability

in the victim’s murder progressed from “he didn’t know

whether he did it” to “he may have done it” to “he must have

done it,” and finally to “TI did it.”

Elizabeth Amold and Alice Dunn, both of whom had at-

tended Elan during the defendant’s stay at the facility, also

testified about certain inculpatory statements that the defen-

dant had made to them. Both testified that the defendant had

expressed uncertainty as to whether he or his brother had

murdered the victim. Amold also recalled a group therapy

session in which the defendant, upon being questioned about

the victim’s murder, stated that “[h]e was very drunk and had

some sort of a blackout” that night, that his brother had

“fool[ed] around” with his “girlfriend,” and that his brother

had stolen her from him. Dunn, who graduated from Elan in

1978 and subsequently became a staff member there, testified

that while she was employed at Elan, the defendant stated

that he was not in “his normal state” on the night of the mur-

der.

Thereafter, in the summer of 1987, the defendant told

Michael Meredith, a former Elan resident who was staying

temporarily in the defendant’s home, that, on the night of the

victim’s murder, he had climbed a tree on the Moxley prop-

erty and masturbated in the tree while watching the victim

through her window. According to Meredith, he first learned

of the victim’s murder in this conversation. The defendant

also told Meredith that while he was in the tree, he saw his

brother Thomas Skakel walk across the Moxley property to-

ward the victim’s home but that Thomas Skakel had not seen

him in the tree. The defendant related a similar story to An-

drew Pugh, a close childhood friend, when the two saw one

13a

another in 1991. The defendant had expressed a desire to

renew their friendship, which gradually had faded following

the victim’s murder. In an effort to ease Pugh’s concerns

about the defendant’s involvement in the victim’s death, the

defendant assured Pugh that he did not kill the victim but

mentioned that he had masturbated in a tree on the night that

she was murdered. Pugh understood that the tree to which

the defendant referred was the tree under which the victim’s

body was discovered.

The most descriptive account of the defendant’s activi-

ties on the night of the murder came in 1997 from an taped-

recorded conversation between the defendant and Richard

Hoffman, a writer who was collaborating with the defendant

on a book about the defendant’s life. On that tape, the defen-

dant explained to Hoffman that, earlier in the evening of the

victim’s murder, he had invited the victim, who was seated

with the defendant in his father’s car, to accompany him to

his cousin’s house to watch the Monty Python Flying Circus

television show. The victim declined the invitation because

of her curfew, and the two instead made plans to go “trick or

treating” the next night. The defendant thereafter left for

Dowdle’s home with his brothers Rushton Skakel, Jr., and

John Skakel, as well as Dowdle.

The defendant told Hoffman that, after returning to his

own home from Dowdle’s house, he had walked through the

house in search of various people. Upon observing that the

door to his sister’s room was closed, he had “remember{ed]

that [his sister’s friend, Shakespeare] had gone home ....” He

then indicated that he had gone into “the master bedroom

{but] there was nobody there, the [television] was on but no-

body was there.” The defendant went upstairs to bed shortly

thereafter, but he became “horny” and decided to spy on a

“lady” who lived on Walsh Lane. The defendant then “snuck

out” of his house and went to this person’s home, hoping to

see her through her window. Unsuccessful in that endeavor,

14a

he thought, “[f]uck this ... Martha likes me, I’l] go, Ill go get

a kiss from Martha.” (Internal quotation marks omitted.)

The defendant then proceeded to the victim’s home, climbed

a tree near the victim’s front door and masturbated in the tree

for about thirty seconds. Shortly thereafter, “a moment of

clarity came into [his] head,” and the defendant climbed

down from the tree and walked back home. On his way

home, he threw rocks into the dark, repeatedly yelling,

“Who’s in there?” He and his friends previously had done

this while shooting BB guns into the dark. The next morn-

ing, the defendant awoke to “[Dorothy} Moxley saying ‘Mi-

chaei ... have you seen Martha?’” The defendant thought to

himself, “Oh my God, did they see me last night?” At that

moment, the defendant told Hoffman, he “rememberj[ed] just

having a feeling of panic.”

The state also adduced evidence establishing that the de-

fendant, who was infatuated with the victim, had grown re-

sentful of her flirtatious friendship with his older brother

Thomas Skakel, whom he considered his nemesis. According

to Pugh, who in 1975 was friendly with the victim and the

defendant, the defendant had “told [him] that he liked Martha

quite a bit and had a crush on her.” Pugh also testified that

the defendant had told him that “he would have liked to have

a relationship with her.” Pugh testified that he had observed

the defendant and the victim engage in “horseplay, rough-

housing, fooling around ... [and] kissing one time in the

[Skakel family motor home].” With respect to Thomas

Skakel’s relationship with the victim, Jacqueline Wettenhall

O’Hara, a neighborhood friend of the victim, recounted ob-

serving flirtatious conduct between the victim and Thomas

Skakel in the months leading up to the victim’s death. En-

tries recorded in the victim’s diary in the two months preced-

ing her murder disclosed the victim’s fnendship with the de-

fendant and Thomas Skakel, and also revealed the sometimes

15a

flirtatious nature of her relationship with Thomas Skakel.!3

In addition, Ix testified that she had observed the victim and

Thomas Skakel engaging in flirtatious horseplay the last time

she saw the victim alive. Moreover, one of the sneakers that

the victim was wearing when her body was recovered had the

name “Tom” written on it.

The defendant raised an alibi defense at trial. In particu-

lar, he claimed that the victim had been murdered at ap-

13° For example, the victim made an entry in her diary on September 12,

1975, in which she stated that, while she was out driving in Thomas

Skakel’s car with several other teenagers, including the defendant, “I

drove a little then ... | was practically sitting on [Thomas Skakel’s] lap

[be]cause I was only steering. He kept putting his hand on my knee....

{T}jhen we went to Friendly’s [restaurant and] Michael [the defendant}

treated me [and] he got me a double but I only wanted a single so I threw

the top scoop out the window. Then I was driving again [and Thomas

Skakel] put his arm around me. He kept doing stuff like that.” A diary

entry from September 19, 1975, recounted the victim’s activities with

other neighborhood friends that day. In that entry, the victim stated that

“Michael was so totally out of it that he was being a real asshole in his

actions [and] words. He kept telling me that I was leading [Thomas

Skakel) on when I don’t like him (except as a friend) [and] | said, well

how about you [and] Jeckie. You keep telling me that you don’t like her

{and} you are all over her.... Michael jumps to conclusions. | can’t be

friends [with Thomas Skakel] just because I talk to him, it doesn’t mean I

like him.” In a subsequent entry, dated October 4, 1975, the victim de-

scribes events that had occurred at a school dance and at a party after the

dance at a neighbor’s home. The entry included the following: “After-

wards | went to Mouakaud’s for a party! I saw everybody. [Thomas

Skakel] was being an ass. At the dance he kept putting his arms around

me [and] making moves.”

l6a

proximately 10 p.m. on October 30, 1975,!4 and that he was

at Dowdle’s home, some twenty minutes away from the mur-

der scene, at that time. The defendant also raised a third

party culpability defense, pointing to Littleton as a likely

perpetrator of the victim’s murder. In fact, Littleton, who

had been hired as a parttime tutor by the Skakel family, had

taken up residence at the Skakel home on October 30, 1975,

the day that the victim was last seen alive, and had slept there

with the Skakel children that night. Littleton testified that,

after returning home from dinner at 9 p.m., he remained at

the house all night, stepping outside briefly at approximately

9:30 p.m. only to investigate a disturbance.'> In addition,

testimony adduced by the defendant revealed that Littleton,

who began to manifest serious psychiatric and behavioral

problems in the years following the murder, may have made

a statement, several years after the killing, in which he impli-

cated himself in the crime. Littleton emphatically denied that

he had had anything to do with the victim’s death, however. —

At the conclusion of the trial, the jury found the defen-

dant guilty of murder. The trial court denied the defendant’s

posttrial motions and, thereafter, sentenced the defendant to a

period of incarceration of twenty years to life imprisonment.

Additional facts will be set forth as necessary.

14 Defense counsel adduced testimony from Joseph Alexander

Jachimczyk, a forensic pathologist from Houston, Texas, who concluded

that the time of the victim’s death most likely was around 10 p.m. on Oc-

tober 30, 1975. Jachimczyk’s testimony was bolstered by the testimony

of several people, including Dorothy Moxley, Ix and David Skakel, tha:

they had heard dogs barking in the vicinity of the crime scene at ap.

proximately that time. See footnote 7 of this opinion.

15 According to Littleton, he was unable to discern the cause of the dis

turbance.

17a

I

We first address the defendant’s claim that the court,

Dennis, J. (juvenile court), improperly transferred fis case

from the docket for juvenile matters to the regular criminal

docket of the Superior Court. Specifically, the defendant

claims that the juvenile court improperly: (1) failed to re-

quire a complete investigation into the defendant’s personal

history and background in accordance with General Statutes

(Rev. to 1975) §§ 17-60a!® and 17-66,!7 which, at all times

16 General Statutes (Rev. to 1975) § 17-60a provides: “The juvenile

court shall have the authority to transfer to the jurisdiction of the superior

court any child referred to it for the commission of a murder, provided

any such murder was committed after such child attained the age of four-

teen years. No such transfer shall be valid unless prior thereto the court

has caused a complete investigation to be made as provided in section 17-

66 and has found, after a hearing, that there is reasonable cause to believe

that (1) the child has committed the act for which he is charged and (2)

there is no state institution designed for the care and treatment of children

to which said court may commit such child which is suitable for his care

or treatment or (3) the safety of the community requires that the child

continue under restraint for a period extending beyond his majority and

(4) the facilities of the superior court provide a more effective setting for

disposition of the case and the institutions to which said court may sen-

tence a defendant are more suitable for the care or treatment of such

child.”

Hereinafter, all references to § 17-60a in this opinion are to the 1975 revi-

sion.

17 General Statutes (Rev. to 1975) § 17-66 provides: “Prior to the dis-

position of the case of any child found to be delinquent, investigation

shall be made of the facts as herein specified by the probation officer, and

until such investigation has been completed and the results thereof placed

before the judge, no disposition of the child’s case shall be made. Such

[Footnote continued on next page]

18a

relevant to this appeal, governed the transfer of a juvenile

matter to the regular criminal docket of the Superior Court;

(2) relied on the current regulations of the department of

children and families (department) in concluding that there

was no State institution suitable for the care and treatment of

the defendant within the meaning of § 17-60a(2); and (3)

failed to explore the existence of facilities outside the state

suitable for the care and treatment of the defendant. We re-

ject the defendant’s claim that the juvenile court improperly

transferred his case to the regular criminal docket of the Su-

perior Court. !8

The following facts and procedural history are relevant

to our resolution of this claim. Because the defendant was

fifteen years old at the time of the offense, he initially was

charged as a delinquent in the Superior Court for Juvenile

[Footnote continued from previous page]

investigation shall consist of an examination of the parentage and sur-

roundings of the child, his age, habits, and history, and shall include also

an inquiry into the home conditions, habits and character of his parents or

guardians. Where a child is or legally should be in attendance at school,

it shall further contain a report of the child’s school adjustment, which

shall be furnished by the school officials to the court upon its request.

The court shall, when it is found necessary to the disposition, cause a

complete physical or mental examination, or both, to be made of the child

by persons professionally qualified to do so.”

Hereinafter, all references to § 17-66 in this opinion are to the 1975 revi-

sion.

18 The state contends that the defendant is not entitled to appellate re-

view of these claims because he failed to raise them in the juvenile court.

We reject the state’s contention because our review of the proceedings in

the juvenile court indicates that these claims were raised, with adequate

specificity, in that court.

19a

Matters. The state subsequently filed a motion under § 17-

60a to transfer the defendant’s case to the regular crimmal

docket. The juvenile court thereafter conducted’a hearing to

determine whether, pursuant to § 17-60a, there was reason-

able cause to believe that the defendant had committed the

murder with which he had been charged. Following the

presentation of evidence on that issue, the juvenile court con-

cluded that there was reasonable cause to believe that the de-

fendant had committed that offense.19 The juvenile court

also issued an order pursuant to § 17-60a directing that an

investigation be conducted in accordance with § 17-66.

After the investigation was complete, the juvenile court

reconvened the defendant’s statutorily mandated transfer

hearing for the purpose of addressing the remaining elements

of § 17-60a. At the hearing, the parties elicited testimony

from the supervisor of juvenile probation, Joseph Pacquin,

who had been assigned to conduct the investigation required

by § 17-60a. Pacquin acknowledged that his investigation

had focused primarily on the possible availability of a state

facility that would be suitable for the defendant, and not on

the defendant’s personal, family and educational background.

See General Statutes (Rev. to 1975) § 17-66. Pacquin gave

several reasons for failing to investigate the defendant’s per-

sonal history and family background, notwithstanding the

dictates of § 17-66, including the fact that the defendant was

forty years of age at the time of the transfer hearing. With

specific regard to the defendant’s education, Pacquin testified

that he had not looked into that facet of the defendant’s back-

ground because § 17-66 does not require such a review

unless the child is or legally should be attending school. Ad-

ditionally, Pacquin testified that he had not sought a physical

19 The defendant does not challenge the juvenile court’s reasonable

cause finding on appeal.

20a

or mental examination of the defendant because the court had

not ordered such an examination to be conducted pursuant to

§ 17-66. With respect to possible residential and treatment

alternatives, Pacquin testified that the department is the state

agency solely responsible for the detention and treatment of

juveniles, and that the department cannot lawfully accept for

placement persons over the age of eighteen. Pacquin’s testi-

mony in this regard was consistent with the testimony of Ju-

dith Kallen, a program director employed by the department,

who testified at the defendant’s reasonable cause hearing that

department regulations prohibited the commitment or place-

ment of individuals over the age of cighteen into the care and

~ custody of the department.

In support of his objection to the state’s motion to trans-

fer, defense counsel adduced testimony from Clinton Rob-

erts, a former state probation officer and president of Alterna-

tive Sentencing Consultants, Inc., a private sentencing con-

sulting firm. Roberts indicated that, contrary to the testi-

mony of Pacquin, there is a private, nonprofit facility located

in Newtown that admits both juveniles and adults, and that

the Newtown facility might serve the residential treatment

needs of the defendant. On cross-examination, however,

Roberts conceded that the facility operated primarily as a

substance abuse treatment center, and he could not say

whether the facility was appropriate for the defendant. De-

fense counsel also elicited testimony that the state juvenile

justice system occasionally places juveniles in programs lo-

cated in other states, but that these placements are reserved

for juveniles with special needs that cannot be met in pro-

grams located within the state.

In a memorandum of decision issued after the conclusion

of the hearing, the juvenile court noted that, under the par-

ticular circumstances presented, the provisions of § 17-66

“are not totally applicable ....” The court further observed

that department regulations prohibit the placement with the

2la

department of anyone over the age of eighteen. The court

also noted that, although General Statutes (Rev. to 1975)

§ 17-68(c)2° provides for the commitment of a child directly

to a hospital or other appropriate institution if the child is de-

termined to be mentally ill, the issue of mental illness never

was raised at any time by the defendant, and the record oth-

erwise was devoid of any indication that the defendant suf-

fered from any such illness. The court thereafter concluded

that “there [was] no available or suitable state institution de-

signed for the care and treatment of children to which the ju-

venile court could commit the ... forty year old [defendant]

that would be suitable for his care and treatment, should he

be adjudicated delinquent for the murder of [the victim],” and

that “the facilities of the adult criminal division of the Supe-

rior Court afford[ed] and provide[ed] a more effective setting

for the disposition of this case, and the institutions to which

the adult criminal division of the Superior Court may sen-

tence a defendant [were] more suitable for the care and

treatment of this [defendant], should he be found guilty of the

murder of [the victim].” Accordingly, the juvenile court

transferred the case to the regular criminal docket.2!

20 General Statutes (Rev. to 1975) § 17-68 provides in relevant part:

“(c) Any child coming within the jurisdiction of the court, who is found

to be mentally ill, may be committed by said court to a hospital or other

institution empowered by law to treat mentally ill children; and, if the

court adjudges a child to be delinquent and finds him to be mentally defi-

cient, it may commit him to an institution for mentally deficient children

or defective delinquents....”

Hereinafter, all references to § 17-68 in this opinion are to the 1975 revi-

sion.

21 We note that the defendant filed an interlocutory appeal to the Appel-

late Court from the transfer order of the juvenile court, and we transferred

the case to this court upon the joint motion of the parties. On appeal, we

[Footnote continued on next page]

22a

Before addressing the defendant’s claims, we set forth

the legal principles that govern our resolution of those

claims. “There is no dispute that adjudication as a juvenile

rather than prosecution as an adult carries significant bene-

fits, chief among which are a determination of delinquency

rather than criminality ... confidentiality ... limitations with

respect to sentencing ... erasure of files ... and isolation from

the adult criminal population.” (Citations omitted.) State v.

Angel C., 24S Conn. 93, 103, 715 A.2d 652 (1998). Accord-

ingly, “a juvenile in whom a liberty interest in his or her ju-

venile status has vested, has a substantial liberty interest in

the continuation of that juvenile status and that the juvenile

cannot and should not be deprived of that status without

[proper] procedural protections ....” J/d.; see also Kent v.

United States, 383 U.S. 541, 557, 86 S.Ct. 1045, 16 L.Ed.2d

84 (1966) (juvenile court’s failure to conduct full investiga-

tion, as required by statute, prior to juvenile’s transfer to

regular criminal docket resulted in deprivation of liberty

without due process of law). Importantly, however, “[a]ny

[special treatment] accorded to a juvenile because of his [or

her] age with respect to proceedings relative to a criminal

offense results from statutory authority, rather than from any

inherent or constitutional right.” (Internal quotation marks

omitted.) State v. Angel C., supra, at 104, 715 A.2d 652. Ac-

cordingly, in the present matter, to the extent that the defen-

dant possesses a liberty interest in his juvenile status, that

interest derives from, and is limited by, the statutory provi-

{Footnote continued from previous page]

agreed with the state that the order of the juvenile court transferring the

case to the regular criminal docket was not a final appealable judgment;

In re Michael S., 258 Conn. 621, 631, 784 A.2d 317 (2001); and, there-

fore, we dismissed the appeal. /d.

23a

sions governing the transfer, adjudication and commitment of

juveniles.

We turn next to the relevant statutory provisions. Under

the statutory scheme in effect in 1975,22 the juvenile court

had original and exclusive jurisdiction “over all proceedings

concerning uncared-for, neglected, dependent and delinquent

children within this state ....” General Statutes (Rev. to 1975)

§ 17-59. Statutes governing the authority and proceedings of

the juvenile court define a “child” as “any person under six-

teen years of age,” who may be found “delinquent” by the

court if, inter alia, the child “has violated any federal or state

law or municipal or local ordinance ....”. General Statutes

(Rev. to 1975) § 17-53. With respect to a child who has been

referred to the juvenile court because that child allegedly had

committed the crime of murder, § 17-60a authorizes the court

to transfer the child to the regular criminal docket of the Su-

perior Court provided that the child was at least fourteen

_ years of age when the murder was committed. Such a transfer

is not permitted by § 17-60a, however, unless an investiga-

tion of the child’s personal and family background has been

completed in accordance with § 17-66, and the juvenile court

has determined, after a hearing, that there is reasonable cause

to believe that: (1) the child has committed the crime

charged; (2) there is no available state institution designed

for the care and treatment of children that would be suitable

for the child, or community safety requires that the child be

detained in a custodial setting for a period extending beyond

majority age; and (3) the facilities of the Superior Court pro-

vide a more effective setting for disposition of the case and

22 As we previously have explained, the juvenile court applied the law

in effect at the time of the commission of the offense. See, e.g., In re

Daniel H., 237 Conn. 364, 377, 678 A.2d 462 (1996). That determination

has not been challenged by either party to this appeal.

24a

the adult institutions to which the child may be sentenced are

more appropriate for his or her care or treatment. With re-

spect to the mandated investigation, General Statutes (Rev. to

1975) § 17-66 mandates that the required investigation in-

clude an examination of “the parentage and surroundings of

the child, his age, habits, and history, and ... also an inquiry

into the home conditions, habits and character of his parents

or guardians.”23

The defendant first claims that his transfer from the

docket for juvenile matters to the regular criminal docket was

improper because Pacquin did not conduct a complete inves-

tigation into the defendant’s personal and family background

as required by §§ 17-60a and 17-66. We agree with the de-

fendani that Pacquin’s investigation did not satisfy the re-

quirements of § 17-66, and that, normally, a failure to meet

those requirements wuld render invalid the transfer of any

case from juvenile court to the regular criminal docket pursu-

ant to § 17-60a. It also is clear, however, that a § 17-66 in-

vestigation is mandated by § 17-60a solely for the purpose of

assisting the juvenile court in its determination of whether,

under the circumstances, there exists a suitable state institu-

tion to which the child may be committed in preference to the

facilities otherwise available for the treatment and punish-

ment of adult offenders. In the present case, however, testi-

mony adduced at the transfer hearing established that the age

of the then forty year old defendant foreclosed his adjudica-

tion in juvenile court because the department was prohibited

by state regulations24 from accepting for placement anyone

over the age of eighteen, regardless of whether such place-

23 Section 17-66 identifies other potential areas of investigation. See

footnote 17 of this opinion. Those other areas, however, are not impli-

“cated by this appeal.

24 See Regs., Conn. State Agencies § 17a-145-48(e).

25a

ment would involve a custodial or noncustodial setting.

Thus, the juvenile court necessarily would have concluded,

irrespective of the results of a complete investigation in ac-

cordance with § 17-66, that the defendant’s age mandated the

transfer of his case to the regular criminal docket. Conse-

quently, Pacquin’s failure to complete the investigation con-

templated by § 17-66, and the juvenile court’s failure to con-

sider facts that might have been brought to light upon the

completion of that investigation, had no bearing on that

court’s ultimate decision under § 17-60a to transfer the de-

fendant’s case to the regular criminal docket.2>

The defendant next claims that the juvenile court im-

properly relied on regulations of the department that were in

effect at the time of the transfer hearing in concluding that

25 For the first time on appeal, the defendant claims that, if a complete

§ 17-66 investigation had been performed, the juvenile court might have

concluded that the defendant suffers or suffered from a mental illness or

deficiency and, on that basis, the juvenile court reasonably might have

committed the defendant to a mental health facility pursuant to § 17-

68(c). See footnote 20 of this opinion. We are not persuaded by this con-

tention. First, at no time during the transfer stage of the proceedings in

juvenile court did the defendant ever claim that he was mentally ill or

deficient, and he never challenged the express finding of the juvenile

court that there was nothing in the record to suggest that a mental health

commitment was warranted. Second, the defendant concedes that the

juvenile court could not have ordered him to undergo a physical or mental

evaluation because the court was barred from doing so by Practice Book,

1963, § 1125(2) (Cum.Sup. 1974) (effective July 1, 1974), which pro-

vides that, subject to certain exceptions not applicable to the present case,

“[nJo such examination ... shall be made of any child denying responsibil-

ity for [his or her allegedly] delinquent behavior ....” In such circum-

stances, the defendant’s belated attempt to raise the possibility of a com-

mitment under § 1 7-68(c) is unavailing.

26a

there was no state institution suitable for his care and treat-

ment. In particular, the defendant claims that the juvenile

court’s reliance on the regulations prohibiting the placement

with the department of anyone over the age of eighteen

thwarts the will of the legislature as expressed in the statutory

scheme that was in effect in 1975, because that age limitation

on placements with the department was not a part of the

statutory scheme at that time.

General Statutes (Rev. to 1975) § 17-60a provides in

relevant part that no transfer shall be valid unless the juvenile

court finds that “there is no state institution designed for the

care and treatment of children to which [the] court may

commit such child which is suitable for his care or treatment

....” (Emphasis added.) We agree with the juvenile court that

this statutory provision “narrowly focus[es] on the availabil-

ity and suitability of state institutions ‘designed for the care

and treatment of children’ to which the juvenile court has

authority to ‘commit such child.’” (Emphasis added.) Thus,

under § 17-60a, the commitment alternatives available to the

juvenile court are those alternatives available at the time of

the transfer hearing.26 Because the juvenile court properly

considered those commitment options, and not the commit-

ment options that might have been available in 1975, the de-

fendant’s claim must fail.

We also disagree with the defendant’s final claim,

namely, that the juvenile court improperly failed to explore

the suitability of placing the defendant in an out-cf-state in-

stitution. Under General Statutes (Rev. to 1975) § 17-420,

26 We note, moreover, that, in 1975, the legislature necessarily contem-

plated that the department would adopt and enforce regulations for the

purpose of effectuating the statutory scheme relating to children because

the legislature expressly had authorized the department to do so. See Gen-

eral Statutes (Rev. to 1975) § 17-415(b).

27a

the commissioner of children and families (commissioner)

may transfer “any person committed, admitted or transferred

to the department ... to any private agency or organization

within or without the state under contract with the depart-

ment,” provided that certain conditions are satisfied. Thus, a

necessary prerequisite to the out-of-state transfer of a juve-

nile found to be delinquent is that the juvenile first must be

“committed, admitted or transferred” to the care and custody

of the department. As the trial court properly determined,

however, under state law, no person over the age of eighteen

may be committed to the care and custody of the department.

Because the defendant could not be placed with the depart-

ment, he could not be transferred by the commissioner to an

out-of-state institution and, accordingly, the juvenile court

properly declined to explore out-of-state placement alterna-

tives for the defendant.

For the foregoing reasons, the defendant has failed to es-

tablish that the juvenile court improperly transferred his case

to the regular criminal docket. Because that transfer was

proper, the state’s prosecution of the defendant as an adult

was lawful.

il

The defendant next claims that the trial court improperly

concluded that his prosecution for murder was not barred by

the applicable statute of limitations. We disagree, albeit on

the basis of an analysis that differs from that of the trial

court.

The following factual and procedural background is nec-

essary to our resolution of this claim. The defendant was ar-

rested on January 19, 2000, for the October, 1975, murder of

the victim and, as we have explained; see part I of this opin-

ion; his case was transferred from the docket for juvenile

matters to the regular criminal docket. Prior to trial, the de-

fendant filed a motion to dismiss the information on the

ground that his prosecution for murder was barred by the five

28a

year limitation period of General Statutes (Rev. to 1975)

§ 54-193,27 the statute of limitations that was in effect at the

time of the victim’s murder. The trial court, Kavanewsky, J.,

denied the defendant’s motion to dismiss, concluding that the

five year limitation period of § 54-193, although facially ap-

plicable to all felonies, including murder and all other class A

felonies, was inapplicable to the crime of murder.2® The trial

court acknowledged that § 54-193 contains no express excep-

tion for murder and that this court, in State v. Paradise, 189

Conn. 346, 350, 456 A.2d 305 (1983), had concluded that the

1976 amendment to § 54-193; Public Acts 1976, No. 76-35,

27 General Statutes (Rev. to 1975) § 54-193 provides: “No person shall

be prosecuted for treason against this state, or for any crime or misde-

meanor of which the punishment is or may be imprisonment in the Con-

necticut Correctional Institution, Somers, except within five years next

after the offense has been committed; nor shall any person be prosecuted

for the violation of any penal law, or for other crime or misdemeanor,

except crimes punishable by death or imprisonment in the Connecticut

Correctional Institution, Somers, but within one year next after the of-

fense has been committed; but, if the person, against whom an indict-

ment, information or complaint for any of said offenses is brought, has

fled from and resided et of this state, during the period so limited, it may

be brought against bis» at any time, within such period, during which he

resides in this stat, after the commission of the offense; and, when any

suit, indictment, ‘feriation or complaint for any crime may be brought

within any other time than is limited by this section, it shall be brought

within such time.”

Hereinafter, all references to § 54-193 are to the 1975 revision unless

otherwise indicated.

28 The defendant filed a similar motion while his case was pending in

the juvenile court. The juvenile court, however, concluded that the de-

fendant’s motion was premature because § 54-193 applies to prosecutions

under the regular criminal docket of the Superior Court.

29a

§ 1 (P.A. 76-35); which excepted all class A felonies, includ-

ing murder, from the purview of § 54- 193, did not apply ret-

roactively to offenses committed prior to April 6, 1976, the

effective date of P.A. 76-35. The trial court further recog-

nized that, in Paradise, we ultimately had determined, on

facts materially identical to the facts of the present case, that

the prosecution of the defendants for murder in that case was

barred by the five year limitation period of the pre-1976

amendment version of § 54-193, the same version of § 54-

193 that was in effect at the time of the murder of the victim

in the present case. The trial court explained, however, that

our determination in Paradise must be considered in light of

two subsequent cases, State v. Ellis, 197 Conn. 436, 460, 497

A.2d 974 (1985),29 and State v. Golino, 201 Conn. 435, 438-

39, 518 A.2d 57 (1986), the holdings and rationale of which,

in the trial court’s view, lead to the conclusion that the five

year limitation period of the pre-1976 amendment version of

29 The defendants in Ellis were Brian Ellis and Wilmer Paradise, the

same defendants who, in State v. Paradise, supra, 189 Conn. 346, 456

A.2d 305, successfully had defended the trial court’s dismissal of the

murder charges that had been lodged against them. /d., «t 347, 456 A.2d

305; see State v. Ellis, supra, 197 Conn. at 438, 497 A.2d 974. The ap-

peal in Ellis followed the decision by the state, after our decision in

Paradise, to charge Ellis and Paradise with capital felony arising out of

the same murder that had been the subject of the appeal in Paradise. Fol-

lowing the trial court’s dismissal of the capital felony charges against

Ellis and Paradise, the state appealed, and we reversed the judgment of

the trial court, concluding, inter alia, that the prosecution of Ellis and

Paradise was not barred by the five year limitation period of the pre-1976

amendment version of § 54-193. State v. Ellis, supra, at 460, 497 A.2d

974.

30a

§ 54-193 was inapplicable to the crime of murder.3® The

trial court therefore denied the defendant’s motion to dismiss,

30 In Paradise, the sole issue presented was whether P.A. 76-35, which,

as we have explained, expressly excepted all class A felonies, including

murder, from the five year limitation period otherwise applicable to felo-

1ies, applied retroactively to offenses committed prior to the effective

date of that amendment, that is, April 6, 1976. State v. Paradise, supra,

189 Conn. at 347, 456 A.2d 305. After concluding that the amendment

aad prospective effect only; id., at 350, 456 A.2d 305; we affirmed the

judgment dismissing the murder charges, which was based on the trial

ourt’s application of the five year limitation peried of the pre-1976

amendment version of § 54-193. In light of the narrow issue raised by

he parties in Paradise, we had no occasion expressly to consider, in that

ase, whether the legislature had intended to subject the offense of mur-

jer to the five year limitation period of the pre-1976 amendment version

of § 54-193; rather, we assumed, like the parties, that the limitation pe-

iod applied equally to murder as to all other felonies. Thereafter, in

Ellis, we were required to decide whether the five year limitation period

of the pre-1976 amendment version of § 54-193 applied to the offense of

capital felony. See State v. Ellis, supra, 197 Conn. at 441, 497 A.2d 974.

After undertaking a detailed historical analysis of this state’s criminal

statutes of limitation, we concluded that the statutory scheme governing

capital felonies was not intended to upset the “deep-rooted understand-

ng”; id., at 459, 497 A.2d 974; that capital crimes, because of their grav-

ty, are not subject to repose. /d., at 459-60, 497 A.2d 974. We reached a

similar conclusion in State v. Golino, supra, 201 Conn. 435, 518 A.2d 57.

n Golino, this court considered the claim of the defendant, Anthony Go-

ino, that his prosecution for a 1973 murder in violation of General Stat-

ites (Rev. to 1972) § 53a-54(a) was barred by the five year limitation

veriod of the pre-1976 amendment version of § 54-193 because Golino

iad not been charged with that murder until 1984. In contrast to the 1975

‘evision of the murder statute under which the defendants in Ellis were

charged, the 1972 revision of the murder statute under which Golino was

[Footnote continued on next page]

3la

and the case proceeded to trial, following which a jury found

the defendant guilty of murder.

In support of his claim that the trial court improperly de-

clined to dismiss the information as time barred, the defen-

dant maintains that this case is both factually and legally in-

distinguishable from State v. Paradise, supra, 189 Conn.

346, 456 A.2d 305; which, the defendant asserts, is therefore

controlling and requires the dismissal of the information in

the preseni case. The state asserts that we should overrule our

holding in Paradise that P.A. 76-35, § 1, did not apply retro-

actively, a conclusion that was predicated on our determina-

tion that criminal statutes of limitation presumptively have

prospective applicability only. See id., at 351-53, 456 A.2d

305. Alternatively, the state maintains that the trial court cor-

(Footnote continued from previous page]

charged effectively had been declared unconstitutional by the United

States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972). As we explained in Golino, the then appli-

cable murder statute carried a possible penalty of death; State v. Golino,

supra, at 439, 518 A.2d 57; see General Statutes (Rev. to 1972) § 53a-54

(c); and, therefore, for statute of limitation purposes, we treated the case

as one “punishable by death ....” (Internal quotation marks omitted.)

State v. Golino, supra, at 447, 518 A.2d 57. We further concluded that,

although the state was barred by Furman from seeking the death penalty

against Golino, that fact did not affect the conclusion, based on our his-

torical analysis, that we had reached in Ellis, namely, that the legislature

never intended for capital crimes, because of their gravity, to be subject to

any period of limitation. See id., at 444-45; 518 A.2d 57. The trial court

in the present case relied heavily on the historical analysis that we em-

ployed in Ellis and Golino in concluding that, despite the broad language

of the pre-1976 amendment version of § 54-193, the legislature never

intended to establish a limitation period for the offense of murder because

of the gravity of that offense.

32a

rectly concluded that Paradise does not bar the state’s prose-

cution of the defendant for murder because our determination

in Paradise that the murder prosecutions in that case were

time barred rested on a faulty assumption, namely, that the

five year limitation period of the pre-1976 amendment ver-

sion of § 54-193 applied to murder as well as to all other

felonies. See footnote 30 of this opinion.

Upon reconsideration, we are persuaded that Paradise

was wrongly decided. In particular, we conclude that we

were misguided in establishing a presumption that, in the ab-

sence of a contrary indication of legislative intent, an

amendment to a criminal statute of limitations is not to be

applied retroactively. As we explain more fully hereinafter,

we are convinced that, with respect to those offenses for

which the preamendment limitation period has not expired, it

is far more likely that the legislature intended for the

amended limitation period to apply to those offenses. In

view of the fact that the five year limitation period of the pre-

1976 amendment version of § 54-193 had not expired with

respect to the October, 1975 murder of the victim when the

1976 amendment to that statutory provision became effec-

tive, we conclude that P.A. 76-35, § 1, is the operative statute

of limitations for purposes of this case.3! Because, under

31 In light of our conclusion that P.A. 76-35, § 1, applies to the offense

in the present case, we have no reason to address the state’s alternate con-

tention that the legislature never intended to establish a limitation period

for murder and, consequently, that the five year limitation period of the

pre-1976 amendment version of § 54-193, despite its facial applicability

to all felonies, including murder, does not bar the state’s prosecution of

the defendant for the murder of the victim. Indeed, this court is bound to

consider first the state’s claim that P.A. 76-35, § 1, applies retroactively

to the offense in the present case because, if that claim has merit, P.A. 76-

35, § 1, necessarily trumps the possible applicability of the pre-1976

[Footnote continued on next page]

~

33a %

P.A. 76-35, § 1, there is no time period within which murder

and other class A felonies must be prosecuted, the trial court

properly denied the defendant’s motion to dismiss the infor-

mation. -

We begin our analysis of this issue with a brief overview

of the pertinent statutory provisions. The defendant was

convicted of murder in violation of § 53a-54a, which, in

1975, specified that the offense “is punishable as a class A

felony unless it is a capital felony and the death penalty is

imposed as provided by section 53a-46a” General Statutes

(Rev. to 1975) § 53a-54a(c). Because the defendant was not

charged with capital murder,>2 his offense was punishable as

a class A felony, which, pursuant to General Statutes (Rev. to

1975) § 53a-35(b)(1), carries a maximum sentence of life

imprisonment. At the time of the offense in October, 1975,

General Statutes (Rev. to 1975) § 54-193 provided in rele-

vant part: “No person shall be prosecuted ... for any crime or

misdemeanor of which the punishment is or may be impris-

onment ... except within five years next after the offense has

been committed...” In 1976, however, the legislature

amended § 54-193 to provide: “No person shall be prose-

[Foomote continued from previous page]

amendment version of § 54-193. Because we conclude that P.A. 76-35,

§ 1, does, indeed, have retrospective applicability to the offense in the

present case, the issue of whether the legislature intended for the pre-

1976 limitation period of § 54-193 to apply to murder is a moot question

for purposes of this case. For purposes of our analysis and resolution of

the issue presented, however, we assume, without deciding, that the five

year limitation period of the pre-1976 amendment version of § 54-193

applies to murder.

32 There is no dispute that the murder of the victim in the present case

did not give rise to a charge of capital murder.

34a

cuted for any offense, except a capital felony or a class A

felony for which the punishment is or may be imprisonment

in excess of one year, except within five years next after the

offense has been committed.... There shall be no limitation of

time within which a person may be prosecuted for a capital

felony or a class A felony.” P.A. 76-35, § 1.

We next turn to a review of our relevant prior precedent

construing legislative amendments to criminal statutes of

limitation, beginning with Paradise. In Paradise, the defen-

dants, Brian Ellis and Wilmer Paradise, were charged, in

1981, with murder, felony murder and kidnapping, all class

A felonies, in connection with a murder that had been com- -

mitted in 1974. State v. Paradise, supra, 189 Conn. at 347,

456 A.2d 305. The trial court dismissed the charges against

Ellis and Paradise; id., at 348, 456 A.2d 305; concluding that

their prosecutions were barred by the five year limitation pe-

nod of the pre-1976 amendment version of § 54-193, which

was in effect at the time of the offenses. See id., at 350, 456

A.2d 305. On appeal, the state claimed that P.A. 76-35, § 1,

which excluded class A felonies, including murder, from the

purview of the five year limitation period of § 54-193, was

procedural in nature and, therefore, had retroactive applica-

bility absent a contrary legislative intent. /d. In support of its

position, the state relied primarily on “an extensive body of

civil case law”; id.; in which this court had held that “proce-

dural statute[s] ... ordinarily will be applied retroactively

without a legislative imperative to the contrary ....”35 /d., at

351, 456 A.2d 305.

33 In Paradise, the state :naintained that the retroactive application of

the 1976 amendment to § 54-193 did not affect Paradise’s or Ellis’ sub-

stantive rights because, at the time that they allegedly had committed the

murder with which they were charged, the five year limitation period of

the pre-1976 amendment version of § 54-193 had not yet expired. See

[Footnote continued on next page]

35a

We declined, however, to decide whether the 1976

amendment was substantive or procedural. /d., at 353, 456

A.2d 305. Although we reaffirmed “the continued vitality

and utility of the principle that procedural statutes will be ap-

plied retrospectively absent a contrary legislative intent in the

civil field”; id., at 351, 456 A.2d 305; we concluded that this

tenet was inapplicable to criminal statutes in light of the prin-

ciple that such statutes “must be strictly construed.” /d., at

352, 456 A.2d 305. In accordance with this principle, we

concluded that “criminal statutes are not to be accorded ret-

rospective effect absent language clearly necessitating such a

construction....”34 Jd., at 353, 456 A.2d 305. After observ-

ing that § 54-193 must be strictly construed because it is “pe-

nal in nature”; id., at 352, 456 A.2d 305; we explained that,

because the language of P.A. 76-35, § 1, did not indicate “a

clear legislative intent that the statute have a retrospective

effect”; id., at 353, 456 A.2d 305; it could not be applied ret-

{Footnote continued from previous page}

State v. Paradise, Conn. Supreme Court Record & Briefs, December

Term, 1982, Pt. 2, State’s Brief p. 5.

34 Our conclusion in Paradise that criminal statutes are not subject to

retroactivity analysis on the basis of whether they are substantive or pro-

cedural was predicated on State v. Jones, 132 Conn. 682, 47 A.2d 185

(1946), a case in which this court had concluded that a statute requiring

the examination of certain criminal defendants for venereal disease was

not retroactive in light of the general principle that, “in a criminal case a

retrospective construction of a statute should not be adopted unless its

language clearly makes such a construction necessary.” (Internal quota-

tion marks omitted.) /d., at 685, 47 A.2d 185. We nevertheless acknowl-

edged in Paradise--albeit without elaboration or specification--that “(t}he

civil-criminal distinction enunciated in Jones and affirmed [in Paradise},

is not necessarily applicable to other areas of the criminal process.” State

v. Paradise, supra, 189 Conn. at 353 n.5, 456 A.2d 305.

36a

roactively to conduct that had preceded its effective date. See

id. In view of the fact that all of the parties in Paradise had

proceeded on the assumption that the five year limitation pe-

riod of the pre-1976 amendment version of § 54-193 applied

to all felonies, including murder, we affirmed the judgment

of the trial court dismissing the information as time barred.

In State v. Crowell, 228 Conn. 393, 398-99, 636 A.2d

804 (1994), we expressly reaffirmed our conclusion in Para-

dise that criminal statutes of limitation are accorded prospec-

tive effect only. The sole issue presented in Crowell was

whether the seven year limitation period of General Statutes

(Rev. to 1993) § 54-193a was applicable to the state’s prose-

cution of the defendant, Martin Crowell, for offenses relating

to his alleged sexual molestation of a child when the amend-

ment establishing that seven year limitation period became

effective after the commission of the charged offenses but

prior to the expiration of the preamendment five year limita-

tion period. /d., at 394-95, 636 A.2d 804. In urging this court

to overrule Paradise, the state maintained that our holding in

that case was “based on the faulty premise that a statute of

limitations that extends a previous limitation period before

that previous period has expired is ‘retroactive.’” /d., at 398,

636 A.2d 804. Specifically, the state claimed that, “to be

‘retroactive,’ a statute must affect a ‘vested right’ that existed

on the date it took effect. Because a defendant has no night to

a statute of limitations defense while the original limitation

period remains unexpired, a new statute of limitations that

takes effect before the original limitations period has expired

does not affect a vested right and therefore cannot be retroac-

tive.” Jd. We rejected the state’s claim, noting that “(t]he

holding in Paradise was based firmly on the principle that

criminal statutes must be strictly construed ... [and] not, as

the state claims, on a technical misunderstanding of the na-

ture of retroactivity.” (Citation omitted.) /d., at 399, 636

A.2d 804. Because there was nothing in the language of the

amendment to indicate that the extended limitation period

37a

had retrospective effect, we concluded that the trial court

properly had followed the dictates of Paradise in dismissing

as time barred the charges against Crowell.

The next case relevant to our inquiry is /n re Daniel H.,

237 Conn. 364, 678 A.2d 462 (1996), in which this court ad-

dressed the issue of whether a 1994 amendment to General

Statutes § 46b-127, the mandatory juvenile transfer statute,

had retroactive applicability. See id., at 366-67, 678 A.2d

462. We concluded that the 1994 amendment, which elimi-

nated the right to an immediate appeal from a court order

transferring a juvenile matter to the regular criminal docket,

had prospective effect only. See id., at 378, 678 A.2d 462.

In so concluding, we explained, first, that our resolution of

the issue was guided by the canon of strict construction ap-

plicable to criminal statutes.35 /d., at 373, 678 A.2d 462. In

contrast to Paradise, however, that conclusion did not end

our analysis. After noting that, under General Statutes § 55-

3,36 substantive changes to the law presumptively have pro-

spective application only; id., at 372, 678 A.2d 462; we

stated that “[t)he first step in ascertaining whether the 1994

amendment was intended to apply retroactively ... is to de-

cide whether the removal of a juvenile’s ability to appeal

immediately from a court’s transfer order is a substantive

change in the law.” Jd., at 373, 678 A.2d 462. We answered

35 We observed that, although statutes concerning juvenile matters gen-

erally are considered to be civil in nature, statutes relating to alleged

criminal misconduct of juveniles, such as § 46b-127, are subject to the

canon of strict construction applicable to criminal) statutes. Jn re Daniel

H., supra, 237 Conn. at 373, 678 A.2d 462.

36 General Statutes § 55-3 provides: “No provision of the general stat-

utes, not previeusly contained in the statutes of the state, which imposes

any new @bixgatson on any person or corporation, shall be construed to

have a retrospective effect.”

38a

that question in the affirmative and, therefore, concluded that

the change presumptively had prospective applicability only.

Id., at 375-76, 678 A.2d 462. We further determined that, be-

cause the presumption of prospective applicability was not

rebutted by a clear expression of legislative intent to the con-

trary, the amendment did not apply retroactively. /d., at 376,

678 A.2d 462.

Thereafter, in State v. Parra, 251 Conn. 617, 619-20,

741 A.2d 902 (1999), we considered whether a statutory

amendment limiting the time within which a defendant may

move to vacate a judgment and withdraw a previously en-

tered plea properly was applied to crimes committed prior to

the effective date of the amendment. The defendant, Juan

Parra, relied on Paradise in support of his claim that the

amendment could not operate retroactively because it lacked

explicit statutory language requiring such an application. /d.,

at 622, 741 A.2d 902. Although we acknowledged that

“Paradise created a bright line rule on matters involving the

statutory construction of criminal statutes ... namely, that the

language of the statute itself must clearly necessitate a retro-

spective construction for one to be given”; (citation omitted;

internal quotation marks omitted) id., at 624, 741 A.2d 902;

we nevertheless reasoned that “the breadth of [our] holding

in Paradise”; id.; is limited to “certain types of criminal stat-

utes, such as a statute of limitations for the prosecution of a

crime ....” J/d., at 625, 741 A.2d 902. In reaching this con-

clusion, we noted that, in /n re Daniel H., we previously had

“made clear that there are instances in which ... Paradise ...

[does not prevent] this court from considering the legislative

history of a criminal statute in determining whether such a

statute should be applied retroactively.” State v. Parra, su-

pra, at 625, 741 A.2d 902. As we explained in Parra, “[i}n

In re Daniel H., we determined whether a statutory amend-

ment eliminating the nght to an immediate appeal from an

order transferring a juvenile matter to the regular criminal

docket applied retroactively... While we specifically held

39a

that the statutory amendment at issue was a criminal statute

that affected substantive rights ... we, nonetheless, looked to

its legislative history to determine whether the amendment

should be applied retroactively.... Thus, we did not limit our

analysis to a determination of whether the language of the

amendment clearly necessitated a retrospective application,

but, rather, used the normal tools of statutory construction to

determine the legislature’s intent on the issue of retroactive

application of the amendment.” (Citations omitted.) Jd.

We further explained that the amendment at issue in

Parra fell within “those other areas of the criminal process ...

to which the holding of Paradise does not extend”; (citation

omitted; internal quotation marks omitted) id., at 626, 741

A.2d 902; because the provision “affect[ed] an area of the

criminal process far removed from the actual criminal con-

duct for which the defendant originally was charged. For

example, [the amendment did] not change the elements of the

crime with which the defendant was charged, alter the ele-

ments of his defense to that crime or make more burdensome

the punisixment for that crime, after its commission.” Jd. Ac-

cordingly, we concluded that we were not restricted to the

language of the amendment in determining whether the legis-

lature had intended that it be applied retroactively; rather, the

“proper test ... [was] whether the language of [the amend-

ment] or its legislative history ... indicates that the legislature

clearly and unequivocally intended for the statute to apply

retroactively.” Jd., at 627, 741 A.2d 902. We noted, finally,

that, because the pertinent legislative history evinced a clear

legislative intent to apply the amendment retroactively; id., at

628, 741 A.2d 902; it was not necessary to determine

whether the amendment was substantive or procedural. /d.,

at 628 n.8, 741 A.2d 902.

With this background in mind, we now reexamine our

conclusion in Paradise that P.A. 76-35, § 1, has prospective

effect only. As we explain hereinafter, that conclusion is

40a

fundamentally flawed because it is founded solely on the

mistaken premise that the rule of strict construction bars the

presumption of retroactivity otherwise applicable to amend-

ments to statutes of limitation. In view of our determination

that our conclusion in Paradise rested on a faulty premise,

we are obliged to take a fresh look at the issue of whether a

criminal statute of limitations should be applied retroactively

or prospectively in circumstances such as those of the present

case, in which the legislature has not clearly evinced an in-

tent one way or the other. For the reasons that follow, we

conclude that, with respect to those criminal offenses for

which -the applicable preamendment statute of limitations pe-

riod has not yet expired, an amendment to that statute of limi-

tations is presumptively retroactive. Because the limitation

period of the pre-1976 amendment version of § 54-193 had

not expired with respect to the offense in the present case

prior to the effective date of the 1976 amendment, and be-

cause the legislature did not evince an intent to have the

amendment applyprospectively only, we conclude that P.A.

76-35, § 1, provides the operative statute of limitations in the

defendant’s case.

Of course, our ultimate objective in construing statutes is

to discern and effectuate the apparent intent of the legislature.

E.g., Cogan v. Chase Manhattan Auto Financial Corp., 276

Conn. 1, 7, 882 A.2d 597 (2005); State v. Ledbetter, 263

Conn. 1, 12, 818 A.2d 1 (2003). Although that objective is

the same for gps and-criminal statutes, we have recog-

nized that certain principles of statutory construction bear

special relevance to our interpretation of criminal statutes,

one of which is the rule of strict construction. Thus, it has

long been held that, “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.) State v. Reynolds, 264 Conn. 1, 69, 836

A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614,

4la

158 L.Ed.2d 254 (2004). Indeed, the rule, which “is perhaps

not much less old than construction itself’; United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820);

finds its roots in Sir Edward Coke’s opinion in Heydon’s

Case, 76 Eng. Rep. 637 (Ex. 1584); see M. Radin, “A Short

Way with Statutes,” 56 Harv. L-.Rev. 388, 389 (1942); and, in

this state, it can be traced back to at least 1821. See Daggett

v. State, 4 Conn. 60, 63 (1821). Succinctly stated, “(t]he

purpose of the rule of strict construction is ... to enable the

people of the State to know clearly and precisely what acts

the legislature has forbidden under a penalty, that they may

govern their conduct accordingly, and to make sure that no

act which the legislature did not intend to include will be

held by the courts within the penalty of the law.” State v.

Faro, 118 Conn. 267, 274, 171 A. 660 (1934); accord State v.

Zazzaro, 128 Conn. 160, 167, 20 A.2d 737 (1941). “Strict

construction is a means of assuring fairness to persons sub-

ject to the law by requiring penal statutes to give clear and

unequivocal warning in language that people generally would

understand, concerning actions that would expose them to

liability for penalties and what the penalties would be.” 3 J.

Sutherland, Statutes and Statutory Construction (6th Ed.

Singer 2001) § 59:3, p. 142. “Another reason for strict con-

struction is to protect the individual against arbitrary discre-

tion by officials and judges.... A related argument is to the

effect that since the power to declare what conduct is subject

to penal sanctions is legislative rather than judicial, it would

risk judicial usurpation of the legislative function for a court

to enforce a penalty whe[n] the legislature had not clearly

and unequivocally prescribed it.” /d., pp. 144-45.

The requirement that criminal statutes shall be strictly

construed is therefore predicated on two fundamental princi-

ples. First, the public is entitled to fair notice of what the law

forbids. Second, legistatures and not courts are responsible

for defining criminal activity. Neither of these two principles

is advanced, however, by applying the rule of strict construc-

42a

tion to criminal statutes of limitation. Because the statutory

limitation period has nothing to do with the scope or reach of

the substantive offense, neither the public’s nght to fair

warming of the legislatively proscribed conduct nor the risk

that the offense will be enlarged judicially beyond the con-

templation of the legislature is implicated by the statutory

limitation period. Consequently, applying the rule of strict

construction to criminal statutes of limitation would be “[t]o

enforce the rule beyond its purpose [and, thereby] to exalt

technicalities above substance.” State v. Faro, supra, 118

Conn. at 274, 171 A. 660.

Indeed, because criminal statutes of limitation do not de-

fine criminal conduct, establish the punishment to be im-

posed or otherwise burden defendants, such statutes are not

truly penal at all. See, e.g., Commonwealth v. George, 430

Mass. 276, 279, 717 N.E.2d 1285 (1999) (“[s]tatutes of limi-

tation do not define criminal conduct, are not penal statutes,

and may not be subject to ... strict construction against the

[state]”). In fact, such statutes represent an expression of

“legislative grace”; State v. Hodgson, 108 Wash.2d 662, 667,

740 P.2d 848 (1987), cert. denied sub nom. Fied v. Washing-

ton, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 277 (1988);

for “they are a surrendering by the sovereign of its ngbt to

prosecute”; id.; after a specified period of time has elapsed

from the acts constituting the offense. Put differently, be-

cause such statutes inure to the benefit of criminal defen-

dants, it is illogical to characterize those statutes as penal for

purposes of determining the proper approach to their con-

struction.

In Paradise, we did not explain our conclusion that § 54-

1%3 1s pena! in nature, and, therefore, that that provision must

ve strictly construed. Indeed, we cited only one case, namely,

State v. Anonymous (1976-6), 33 Conn.Supp. 34, 358 A.2d

691 (1976) (Anonymous), to support that conclusion. See

State v. Paradise, supra, 189 Conn. at 352, 456 A.2d 305. In

43a

State v. Anonymous (1976-6), supra, at 39, 358 A.2d 691, a

judge of the Court of Common Pleas?’ coricluded, also with-

out analysis or explanation, that § 54-193 is a penal statute

and, therefore, subject to the canon of strict construction. In

support of its assertion that § 54-193 is a penal statute, the

court in Anonymous relied solely on State v. Bello, 133 Conn.

600, 53 A.2d 381 (1947), a case in which this court affirmed

the conviction of the defendant, Riggs Bello, for gambling.

See id., at 601, 604, 53 A.2d 381. In Bello, however, we ap-

plied the canon of strict construction in connection with our

interpretation of the antigambling statute itself, not any ap-

plicable statutory limitation period. See id., at 604, 53 A.2d

381. Thus, the cases that provide the basis for our conclusion

in Paradise that § 54-193 is a penal statute to which the

canon of strict construction applies simply do not support

that conclusion.

Contrary to our determination in Paradise, § 54-193,

like other criminal statutes of limitation, is remedial in na-

ture. “The purpose of a siatute of linutations is to limit expo-

sure to criminal prosecution to a certain fixed period of time

following the occurrence of those acts the legislature has de-

cided to punish by criminal sanctions. Such a limitation is

designed to pro’ect individuals from having to defend them-

selves against charges when the basic facts may have become

obscured by the passage of time and to minimize the danger

of official punishment because of acts in the far-distant past.

Such a time limit may also have the salutary effect of en-

couraging law enforcement officials promptly to investigate

suspected criminal activity.” Toussie v. United States, 397

U.S. 112, 414-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). In-

deed, it is because of the remedial nature of criminal statutes

37 The Court of Common Pleas was merged into the Superior Court in

1978. See General Statutes § 51-164s.

44a

of limitation that they “are to be liberally interpreted in favor

of repose.”38 (internal quotation marks omitted.) /d., at 115,

90 S.Ct. 858.

In Paradise, the rule of strict construction provided the

sole basis for our determination that P.A. 76-35, § 1, has pro-

spective effect only. See State v. Paradise, supra, 189 Conn.

at 352, 456 A.2d 305. Because we are not persuaded that that

rule applies to criminal statutes of limitation, the validity of

our holding in Paradise necessarily is suspect.39 Even if we

38 Thus, like all remedial statutes, a criminal statute of limitation must

be construed liberally to effectuate the legislature’s intent. See, e.g.,

Knight v. F.L. Roberts & Co., 241 Conn. 466, 474, 696 A.2d 1249

(1997); Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 18, 688 A.2d

306 (1997). Because the remedial purpose of a criminal statute of limita-

tion is to provide for repose after the expiration of a specified period of

time, the statute must be construed liberally to effectuate that purpose.

This maxim of liberal construction, however, is not determinative of

whether the pre-1976 amendment version or the post-1976 amendment

version of § 54-193 applies to the criminal conduct that is the subject of

the present case because both provisions represent a legislative mandate;

the question is which such mandate applies. Of course, once it has been

determined which provision is applicable, then that provision must be

liberally construed in favor of repose. But until such time as the applica-

ble statute is identified, the doctrine of liberal construction has no appli-

cability. Thus, although in Paradise, we referred to this tenet of statutory

construction; State v. Paradise, supra, 189 Conn. at 352, 456 A.2d 305; it

provides no guidance on the issue of whether the pre-1976 amendment or

the post-1976 amendment version of § 54-193 applies to the defendant’s

conduct. ;

39 We also note that our holding in Paradise leads to a result that is

inconsistent with the rationale underlying that holding when it is applied

to a statutory amendment that reduces the limitation period. In such cir-

cumstances, the prospective application of the amendment would inure to

[Footnote continued on next page]

45a

were to assume that the rule is applicable to such statutes,

however, we see no reason why its application would lead

inexorably to the presumption against retroactivity that we

announced in Paradise. Indeed, as we had recognized long

before Paradise, “[t]he rule of strict construction does not

require that the narrowest technical meaning be given to the

words employed in a criminal statute in disregard of their

context and in frustration of the obvious legislative intent.”

(Internal quotation marks omitted.) State v. Faro, supra, 118

Conn. at 274, 171 A. 660. In other words, the principle of

strict construction should not be applied in a manner that is

“hostile” to an evident legislative purpose; State v. Levy, 103

Conn. 138, 141, 130 A. 96 (1925); or in a way that is con-

trary to common sense. See State v. Reynolds, supra, 264

Conn. at 70, 836 A.2d 224. Thus, as a leading commentator

on statutory construction has explained, “[t]he rule of strict

construction is not the only factor which influences the inter-

pretation of [criminal] laws. Instead, the rule is merely one

among various aids which may be useful in determining the

meaning of penal laws. This has been recognized time and

again by the decisions, which frequently enunciate the prin-

ciple that the intent of the legislature, or the meaning of the

statute, must govern and that a strict construction should not

be permitted to defeat the policy and purposes of the statute.”

3 J. Sutherland, supra, § 59:6, pp. 159-61. At a minimum,

[Footnote continued from previous page]

the detriment of the defendant because the original, longer limitation pe-

riod presumptively would be applicable. This result is incompatible with

the rationale of our holding in Paradise, namely, the rule of strict con-

struction, a rule that, when applicable, requires us to construe statutes

against the state and in favor of criminal defendants. The bizarre nature of

this result substantiates our rejection of the rote application of the rule of

strict construction to criminal statutes of limitation in Paradise.

46a

therefore, our reliance in Paradise on the canon of strict con-

struction, to the exclusion of all other considerations, casts

serious doubt on the validity of our conclusion.49

For the foregoing reasons, we reject as logically un-

_ founded our holding in Paradise that the canon of strict con-

struction requires the conclusion that P.A. 76-35, § 1, has

prospective effect only. We therefore must determine

whether our conclusion in Paradise nevertheless was correct.

We conclude that it was not.

It is axiomatic that, “[w]hether to apply a statute retroac-

tively or prospectively depends upon the intent of the legisla-

ture in enacting the statute.” (Internal quotation marks omit-

ted.) In re Eden F., 250 Conn. 674, 695, 741 A.2d 873

(1999). In seeking to discern that intent, “[oJur point of de-

parture is ... § 55-3,41 which ... we have uniformly inter-

preted ... as a rule of presumed legislative intent that statutes

affecting substantive nghts shall apply prospectively only...

The Legislature only rebuts this presumption when it clearly

and unequivocally expresses its intent that the legislation

40 Aswe previously have noted, in State v. Crowell, supra, 228 Conn.

393, 636 A.2d 804, this court reaffirmed our holding in Paradise, stating:

“After a thorough consideration of the parties’ arguments in ... Paradise

... and the reasoning behind that decision, we conclude that it should not

be overruled.” /d., at 399, 636 A.2d 864. We then expressed our ap-

proval of the rationale on which our holding in Paradise was based,

namely, “the principle that criminal statutes must be strictly construed

....” Id. These conclusory assertions in Crowell notwithstanding, we en-

gaged in no analysis or explanation as to why the rule of strict of con-

struction constituted a sound basis for our determination that criminal

statutes of limitation presumptively have prospective effect only. Conse-

quently, Crowell is no more persuasive a precedent than is Paradise.

4 | See footnote 36 of this opinion.

47a

shall apply retrospectively.”42 (Internal quotation marks

~ omitted.) Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786,

657 A.2d 616 (1995); see also Coley v. Camden Associates,

Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). As a corol-

lary to this principle, we also “have presumed that procedural

or remedial statutes are intended to apply retroactively absent

a clear expression of legislative intent to the contrary ....”43

Miano v. Thorne, 218 Conn. 170, 175, 588 A.2d 189 (1991);

accord Jn re Daniel H., supra, 237 Conn. at 372-73, 678

A.2d 462. “While there is no precise definition of either

{substantive or procedural law], it is generally agreed that a

substantive law creates, defines and regulates rights while a

42 “[This] presumption against retroactive legislation is deeply rooted in

our jurisprudence, and embodies a legal doctrine centuries older than our

Republic. Elementary considerations of fairness dictate that individuals —

should have an opportunity to know what the law is and to conform their

conduct accordingly; settled expectations should not be lightly disrupted.

For that reason, the principle that the legal effect of conduct should ordi-

narily be assessed under the law that existed when the conduct took place

has timeless and universal human appeal.” (Internal quotation marks

omitted.) State v. Faraday, 268 Conn. 174, 196, 842 A.2d 567 (2004),

quoting Jmmigration & Naturalization Service v. St. Cyr, 533 U.S. 289,

316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

43 Since our decision in Paradise, we repeatedly have recognized the

utility of this approach to statutory construction as a guide to determining

whether the legislature intended for a particular criminal statute to have ~

retrospective effect. See, e.g., State v. Faraday, 268 Conn. 174, 197, 842

A.2d 567 (2004); Jn re Michael S., 258 Conn. 621, 630, 784 A.2d 317

(2001); State v. Parra, supra, 251 Conn. at 628 n.8, 741 A.2d 902; In re

Daniel H., supra, 237 Conn. at 372, 678 A.2d 462. Indeed, as we have

explained, in Paradise, we acknowledged the applicability of this ap-

proach in regard to certain unspecified “areas of the criminal process.”

State v. Paradise, supra, 189 Conn. at 353 n.5, 456 A.2d 305.

48a

procedural law prescribes the methods of enforcing such

~ rights or obtaining redress.” (Internal quotation marks omit-

ted.) Carr v. Planning & Zoning Commission, 273 Conn.

573, 593, 872 A.2d 385 (2005). Moreover, the “retroactive

application of a law occurs only if the new or revised law

was not yet in effect on the date that the relevant events un-

derlying its application occurred.” State v. Faraday, 268

Conn. 174, 197, 842 A.2d 567 (2004); see also State v.

Breton, 264 Conn. 327, 421-22, 824 A.2d 778, cert. denied,

540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003); Jn re

Daniel H., supra, at 377, 678 A.2d 462. Finally, in determin-

ing the retrospective applicability of any criminal statute, we

must be mindful that the ex post facto clause of the United

States constitution*4 bars any state from enacting “any law

[that] imposes a punishment for an act [that] was not punish-

able at the time [that] it was committed; or imposes addi-

tional punishment to that then prescribed.” (Internal quota-

tion marks omitted.) Weaver v. Graham, 450 U.S. 24, 28,

101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Although “a law en-

acted after expiration of a previously applicable limitations

period violates the Ex Post Facto Clause when it is applied to

revive a previously time-barred prosecution”; (emphasis in

original) Stogner v. California, 539 U:S. 607, 632-33, 123

S.Ct. 2446, 156 L.Ed.2d 544 (2003); because it deprives the

- defendant of a fully vested defense to prosecution, the consti-

tution “does not prevent the State from extending time limits

... for prosecutions not yet time barred.”45 (Emphasis

added.) /d., at 632, 123 S.Ct. 2446.

44 The constitution of the United States, article one, § 10, provides in

relevant part: “No State shall ... pass any ... ex post facto Law ....”

45 In Stogner, the United States Supreme Court considered the constitu-

tionality of a statute of limitations that, as applied to the defendant,

Marion Stogner, revived a prosecution that had been time barred under

{Footnote continued on next page]

49a

Application of these considerations leads unmistakably

to the conclusion that, subject to the limitations of the ex post

facto clause, criminal statutes of limitation, including P.A.

76-35, § 1, should be accorded a presumption of retroactivity.

Indeed, we long have held that civil statutes of limitation are

presumed to apply retroactively because they do not affect or

alter substantive rights. Roberts v. Caton, 224 Conn. 483,

488, 619 A.2d 844 (1993); see, e.g., Jones Destruction, Inc.

v. Upjohn, 161 Conn. 191, 195-96, 286 A.2d 308 (1971). As

we have explained, “[a] statute of limitations is generally

considered to be procedural, {and therefore presumptively

retroactive] especially whe[n] the statute contains only a

limitation as to time with respect to a right of action and does

not itself create the right of action.” (Internal quotation

marks omitted.) Moore v. McNamara, 201 Conn. 16, 22, 513

A.2d 660 (1986); accord Roberts v. Caton, supra, at 488, 619

A.2d 844. “This is so because ... the limitation merely acts as

a bar to a remedy otherwise available.” Moore v. McNa-

mara, supra, at 22, 513 A.2d 660. The fundamental purpose

and effect of criminal statutes of limitation are the same as

[Footnote continued from previous page]

the original limitation period that was in effect when Stogner allegedly

had committed the crimes with which he was charged. Stogner v. Cali-

fornia, supra, 539 U.S. at 609, 123 S.Ct. 2446. The court concluded that

the statute as applied violated the ex post facto clause because it “retroac-

tively withdr[ew] a complete defense to prosecution after it ha[{d] already

attached”; id., at 632, 123 S.Ct. 2446; thereby rendering Stogner subject

to punishment under the new law for past criminal conduct for which he

was not subject to punishment when the new law was enacted. See id., at

613, 123 S.Ct. 2446. The court also made clear, however, that the exten-

sion of a statute of limitations to offenses not barred by a previous limita-

tion period does not implicate the ex post facto clause. /d., at 632, 123

S.Ct. 2446.

50a

civil statutes of limitation; as the United-States Supreme

Court has stated in noting the similarities between such stat-

utes, they both “represent a legislative judgment about the

balance of equities in a situation involving the tardy assertion

of otherwise valid rights: [t]he theory is that even if one has

a just claim it is unjust not to put the adversary on notice to

defend within the period of limitation and that the right to be

free of stale claims in time comes to prevail over the right to

prosecute them.” (Internal quotation marks omitted.) United

States v. Marion, 404 U.S. 307, 322-23 n.14, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971). Because both criminal and civil statutes

of limitation are predicated on the same general policy con-

siderations and perform the same basic functions, it makes

sense to treat them the same for the purpose of determining

whether they give rise to a presumption of retroactive or pro-

spective applicability, at least in the absence of good reason

not to do so.

We know of no such reason. Unless the statute of limi<____

tations that was in effect when a crime was committed has

expired with respect to that crime, a defendant accused of

that crime has no right to have that limitation period applied —

to his conduct. Succinctly stated, “[s]tatutes of limitations

are measures of public policy only. They are entirely subject

to the will of the legislature, and may be changed or repealed

altogether in any case [in which] a right to acquittal has not

been absolutely acquired by the completion of the [original]

period of limitation. Such a statute is an act of grace in

criminal prosecutions. The State makes no contract with

criminals at the time of the passage of acts of limitations that

they shall have immunity from punishment if not prosecuted

within the statutory period.” (Internal quotation marks omit-

ted.) People v. Isaacs, 37 Ull.2d 205, 229, 226 N.E.2d 38

(T96F);-accord State v. Petrucelli, 156 Vt. 382, 383, 592

A.2d 365 (1991); see also State v. Hodgson, supra, 108

Wash.2d at 668, 740 P.2d 848 (“until the [criminal] statute

[of limitations] has run it is a mere regulation of the remedy

S5la

. subject to legislative control” [internal quotation marks

omitted]). In such cases, a defendant also has no legitimate

expectancy interest in the application of that limitation pe-

riod: defendants do not engage in criminal conduct with an

eye on the then applicable statute of limitations, and, even if

they did, society, for obvious reasons, is not prepared to rec-

ognize any such reliance as reasonable.46

46 We note that a significant number of courts have concluded that ap-

plying an amendment to a statute of limitations enlarging the unexpired

period of time within which a prosecution may be brought is not a retro-

active application of the extended period at all. £.g., State v. Schultzen,

522 N.W.2d 833 (lowa 1994) (“applying the extended statute of limita-

tions was not retroactive because the statute barred only prospective

prosecutions ... [and][bJecause the prosecution of the defendant was not

barred as of the time the amendment became effective” [citation omit-

ted]); State v. Hirsch, 245 Neb. 31, 43, 511 N.W.2d 69 (1994) (“because

the extension of a statute of limitations to offenses not barred by a previ-

ous period of limitations does not affect a defendant’s existing rights or

defenses, the application of the extended statute to existing causes of ac-

tion is not a retroactive law”); State v. Dufort, 111 Or.App. 515, 519, 827

P.2d 192 (1992) (“the amended Statute of Limitations is not retroactive

legislation and ... it applies to incidents ... that had not yet been barred

under the previous statute”); Commonwealth v. Johnson, 520 Pa. 165,

170, 553 A.2d 897 (1989) (“There is nothing retroactive about she appli-

cation of an extension of a statute of limitations, so long as the original

statutory period has not yet expired.... Only whe[n] a vested right or con-

tractual obligation is involved is a statute applied retroactively when it is

applied to a condition existing on its effective date which resulted from

events [that] occurred prior to that date.” [Citations omitted; internal

quotation marks omitted.]). This view--under which P.A. 76-35, § 1,

would apply to the conduct at issue in the present case because the appli-

cation of the amendment would be considered prospective rather than

retrospective-- arguably finds support in Landgraf v. US] Film Products,

[Footnote continued on next page]

{Footnote continued from previous page}

S511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), in which the

United States Supreme Court made the following general observations

about statutory retroactivity: “A statute does not operate ‘retrospectively’

merely because it is applied in a case arising from conduct antedating the

statute’s enactment ... or upsets expectations based in prior law. Rather,

the court must ask whether the new provision attaches new legal conse-

quences to events completed before its enactment. The conclusion that a

particular rule operates ‘retroactively’ comes at the end of a process of

judgment concerning the nature and extent of the change in the law and

the degree of connection between the operation of the new rule and a

relevant past event. Any test of retroactivity will leave room for dis-

agreement in hard cases, and is unlikely to classify the enormous variety

of legal changes with perfect philosophical clarity. However, retroactivity

is a matter on which judges tend to have ‘sound ... instinct[s},’ ... and fa-

miliar considerations of fair notice, reasonable reliance, and settled ex-

pectations offer sound guidance.” (Citations omitted.) /d., at 269- 70,

114 S.Ct. 1483. As this court recently has observed, however, in criminal

cases, we generally look to the date of the offense in determining whether

a change in the law is considered retroactive; /n re Daniel H., supra, 237

Conn. at 377, 678 A.2d 462; see also State v. Crowell, supra, 228 Conn.

at 401, 636 A.2d 804 (rejecting argument of state that applying aimenda-

tory extension of statute of limitations to conduct occurring before expira-

tion of preamendment limitation period does not constitute retroactive

application of amendment); and, for purposes of this appeal, we adhere to

that general rule. It is important to note, though, that regardless of

whether the application of an amendment to a criminal statute of limita-

tion is characterized as prospective because the origina] limitation period

had not expired prior to the amendment’s enactment, or, under the same

factual scenario, that amendment is deemed to apply retroactively be-

cause it is procedural or remedial in nature, the result is precisely the

same: the limitation period as amended, rather than the original limita-

tion period, is the applicable limitation period.

53a

The canon of statutory construction that procedural or

remedial statutes are to be applied retroactively in the ab-

sence of a contrary legislative intent is grounded in the pre-

sumption that the legislature intended that result because

such retroactive application will most broadly and compre-

hensively effectuate the legislative policy embodied in the

enactment without upsetting any settled rights or reliance in-

terests. Labeling a statute as substantive or procedural, how-

ever, will not always resolve the fundamental issue of legisla-

tive intent.47 Thus, we have recognized that “[t]he test of

whether a statute is to apply retroactively, absent an express

legislative intent, is not a purely mechanical one and even if

it is a procedural statute, which ordinarily will be applied ret-

roactively without a legislative imperative to the contrary, it

will not be applied retroactively if considerations of good

47 Indeed, as the Washington Supreme Court has stated, “[a} review of

the multitude of cases decided by many couits on [the] subject [of

whether an amendment extending a criminal statute of limitation applies

to offenses not already time barred when the amendment was enacted]

suggests that the labeling of statutes of limitation and changes thereto as

‘procedural’ or ‘substantive’, ‘prospective’ or ‘retrospective’ or ‘retroac-

tive’, and as subject to ‘strict’ or ‘liberal’ interpretation, and then letting

the consequences flow according to the label affixed, tends to obscure

rather than clarify the law. We deem it helpful to consider the issue in

more fundamental terms of precisely what statutes of limitation in crimi-

nal cases are, and how they function.” State v. Hodgson, supra, 108

Wash.2d at 667, 740 P.2d 848. We fully agree with the essential thrust of

this statement. It bears reiteration that we use the procedural-substantive

distinction, like other canons of statutory construction, merely as a means

to attain the fundamental goal of ascertaining the presumed intent of the

legislature. Indeed, it is only after consideration of “what statutes of limi-

tations in criminal cases are, and how they function”; id.; that we, like the

Washington Supreme Court in Hodgson, have reached the conclusion that

such statutes are presumptively retroactive.

54a .

sense and justice dictate that it not be so applied.” (Internal

quotation marks omitted.) State v. Lizotte, 200 Conn. 734,

741, 517 A.2d 610 (1986); see also In re Daniel H., supra,

237 Conn. at 372-73, 678 A.2d 462 (“[AJlthough we have

presumed that procedural or remedial statutes are intended to

apply retroactively absent a clear expression of legislative

intent to the contrary ... a statute which, in form, provides but

a change in remedy but actually brings about changes in sub-

stantive nghts is not subject to retroactive application.... The

rule is one of obvious justice and prevents the assigning of a

quality or effect to acts or conduct which they did not have or

did not contemplate when they were performed.” [Internal

quotation marks omitted.}).

Considerations of good sense and justice dictate that a

court give retroactive effect to a criminal statute of limita-

tions, absent an indication of a contrary legislative intent,

when, as in the present case, that retroactive application does

not revive a prosecution already time barred by a previous

limitation period. As we noted previously, statutes of limita-

tion “represent legislative assessments of relative interests of

the State and the defendant in administering and receiving

justice”; United States vy. Marion, supra, 404 U.S. at 322, 92

S.Ct. 455; and as such, they reflect the legislature’s consid-

ered judgment as to the “difficult balance between the public

demand for justice and the [interest] of the individual to be

free from the continual threat of prosecution for past miscon-

duct.” State v. Ellis, supra, 197 Conn. at 458 n.t8, 497 A.2d

974. When the legislature implements that policy decision by

modifying, through amendment, a preexisting criminal limi-

tation period, we can conceive of no logical reason why the

legislature would not have intended for that new limitation

period to apply to a// offenses that were not previously time

barred under the original provision. Put differently, it is un-

reasonable to presume that the legislature would have in-

tended that the exact same crimes shall be subject to different

limitation periods merely because of the fortuity that one de-

55a

fendant committed the crime the day before the enactment of

the amendment to the limitation period while another defen-

dant committed the identical crime the day after the enact-

ment of that amendment.

Furthermore, as we observed in Paradise, the language

of P.A. 76-35, § 1, sheds no light on whether the legislature

intended for that amendment to have retroactive effect. State

v. Paradise, supra, 189 Conn. at 353, 456 A.2d 305. In

Paradise, however, we limited our retroactivity analysis to

the language of the amendment; see id., at 353, 456 A.2d

305; and did not consider the amendment’s legislative his-

tory. To the extent that the legislative history may be

deemed to have a bearing on that issue, it is scant. As we

noted in State v. Golino, supra, 201 Conn. at 445, 518 A.2d

57, and State v. Ellis, supra, 197 Conn. at 460, 497 A.2d 974,

however, Senator David H. Neiditz, the sponsor of the

amendment, indicated that it was intended to clarify existing

law. See 19S. Proc., Pt. 1, 1976 Sess., p. 341. It is well es-

tablished that legislation deemed to be clarifying generally is

accorded retroactive effect. E.g., Andersen Consulting, LLP

v. Gavin, 255 Conn. 498, 517, 767 A.2d 692 (2001); Toise v.

Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998). Although

not conclusive, Senator Neiditz’ comment supports our de-

termination that P.A. 76-35, § 1, has retroactive applicabil-

ity.48

Moreover, our conclusion that an amendment to a crimi-

nal statute of limitations is presumptively applicable to

crimes not previously barred by the original limitation period

is supported by the considerable weight of authority. See,

48 We note that, in both Ellis and Golino, we underscored the signifi-

cance of Senator Neiditz’ comment that P.A. 76-35, § 1, was intended to

clarify existing law. See State v. Golino, supra, 201 Conn. at 445, 518

A.2d 57; State v. Ellis, supra, 197 Conn. at 460, 497 A.2d 974.

56a

e.g., People v. Sample, 161 Cal.App. 3d 1053, 1058, 208

Cal.Rptr. 318 (1984); State v. O'Neill, 118 Idaho 244, 248,

796 P.2d 121 (1990); People v. Isaacs, supra, 37 Il.2d at

229, 226 N.E.2d 38; State v. Schultzen, 522 N.W.2d 833, 835

(lowa 1994); State v. Nunn, 244 Kan. 207, 217, 768 P.2d 268

(1989); Commonwealth v. Bargeron, 402 Mass. 589, 593-94,

524 N.E.2d 829 (1988); People v. Russo, 439 Mich. 584,

594-97, 487 N.W.2d 698 (1992); Christmas v. State, 700

So.2d 262, 266-67 (Miss. 1997); State v. Hirsch, 245 Neb.

31, 43-44, 511 N.W.2d 69 (1994); State v. Hamel, 138 N.H.

392, 395-96, 643 A.2d 953 (1994); State v. Nagle, 226

N.J.Super. 513, 516, 545 A.2d 182 (1988); People ex rel.

Reibman v. Warden of County Jail, 242 A.D. 282, 284-85,

275 N.Y.S. 59 (1934); People v. Pfitzmayer, 72 Misc.2d 739,

741-42, 340 N.Y.S.2d 85 (1972); State v. Buchholz, 678

N.W.2d 144, 149 (N.D. 2004); State v. Dufort, 111 Or.App.

515, 519, 827 P.2d 192 (1992); Commonwealth v. Johnson,

520 Pa. 165, 170, 553 A.2d 897 (1989); State v. Wolfe, 61

S.D. 198, 199, 247 N.W. 407 (1933); Rose v. State, 716

S.W.2d 162, 165 (Tex.App. 1986, pet.ref'd), cert. denied,

486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988);

State v. Lusk, 37 P.3d 1103, 1109-10 (Utah 2001); State v.

Petrucelli, supra, 156 Vt. at 383-84, 592 A.2d 365; State v.

Hodgson, supra, 108 Wash.2d at 665-68, 740 P.2d 848; see

also 21 Am.Jur.2d 349-50, Criminal Law § 294 (1998)

(““Whe[n] a statute extends the period of limitation, the exten-

sion applies to offenses not barred at the time of the passage

of the act, so that a prosecution may be commenced at any

time within the newly established period. Such a statute,

however, cannot operate to revive offenses that were barred

at the time of its enactment, since that would make the statute

ex post facto.”). Although several courts have concluded oth-

erwise; see, e.g., United States v. Richardson, 512 F.2d 105,

106 (3d Cir. 1975); Stoner v. State, 418 So.2d 171, 178 (Ala.

Crim. App.), cert. denied, 418 So.2d 184 (Ala. 1982), cert.

denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978

57a

(1983); Martin v. Superior Court, 135 Ariz. 99, 100, 659

P.2d 652 (1983); State ex rel. Manucy v. Wadsworth, 293

So.2d 345, 347 (Fla. 1974); State v. Merolla, 100 Nev. 461,

464, 686 P.2d 244 (1984); the courts in those cases relied

solely on the faulty premise that the result was dictated by

the canon of strict construction. Because those cases, like

Paradise, are founded on the same rote anu erroneous appli-

cation of that interpretative principle--we have not found one

such case in which the court engaged in any meaningful

analysis of the issue--they suffer from the same logical infir-

mity as Paradise.

Our conclusion today also resolves a tension between

our mode of analysis in Paradise and the approach to the

construction of statutes in the criminal realm that we have

employed more recently in cases such as In re Michael S.,

258 Conn. 621, 784 A.2d 317 (2001), State v. Parra, supra,

251 Conn. 617, 741 A.2d 902, and Jn re Daniel H., supra,

237 Conn. 364, 678 A.2d 462. In each of those latter cases,

we expressly recognized that the focus of our inquiry was the

presumed intent of the legislature, and we thereafter pro-

- ceeded to identify various relevant interpretative aids, includ-

ing the canon of construction that procedural statutes carry a

presumption of retroactivity, as a means to that fundamental

end. See, e.g., In re Michael S., supra, at 627-29, 784 A.2d

317; In re Daniel H., supra, at 372-73, 376, 678 A.2d 462.

In Paradise, by contrast, our statutory interpretation was

guided solely by the rule of strict construction, an approach

that, as we have explained, was unduly cramped and formal-

istic.

Moreover, in Parra, we acknowledged that the rule that

we had announced in Paradise does not extend to those areas

of the criminal process that bear only a remote connection to

the criminal conduct for which the defendant was charged.

State v. Parra, supra, 251 Conn. at 626, 741 A.2d 902. By

way of illustration, we noted that the amendatory provision at

58a

issue in Parra did “not change the elements of the crime with

which the defendant was charged, alter the elements of his

defense to that crime or make more burdensome the punish-

ment for that crime, after its commission.”49 Jd. The same

can be said of criminal statutes of limitation because they

also do not purport to define or regulate criminal conduct in

any way. We therefore see no reason why a criminal limita-

tion period should not be included among those provisions

that, although a part of our system of criminal laws, neverthe-

less carry a presumption of retroactivity.

In reaching this conclusion, we are mindful, of course, of

the doctrine of stare decisis, which “counsels that a court

should not overrule its earlier decisions unless the most co-

gent reasons and inescapable logic require it.... Stare decisis

is justified because it allows for predictability in the ordering

of conduct, it promotes the necessary perception that the law

is relatively unchanging, it saves resources and it promotes

49 We note that these considerations are very similar to the factors to be

evaluated in determining whether a retroactive law violates the ex post

facto clause of the United States constitution. See, e.g., Collins v.

Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)

(concluding that Texas statute did not violate ex post facto clause because

it did “not punish as a crime an act previously committed, which was

innocent when done, nor make more burdensome the punishment for a

crime, after its commission, nor deprive one charged with cnme of any

defense available according to law at the time the act was committed”).

The similarity between the two inquines is not surprising: both involve a

determination of whether the retroactive application of a statute will upset

vested rights or reasonable reliance interests such that applying the statute

retroactively would be fundamentally unfair. See Stogner v. California,

supra, 539 U.S. at 621, 627, 632, 123 S.Ct. 2446 (fairness is important

factor in determination of whether retroactive application of criminal

statute violates ex post facto clause).

59a

judicial efficiency... It is the most important application of a

theory of decisionmaking consistency in our legal culture and

it is an obvious manifestation of the notion that decisionmak-

ing consistency itself has normative value.” (Internal quota-

tion marks omitted.) St. George v. Gordon, 264 Conn. 538,

553-54 n.16, 825 A.2d 90 (2003). Stare decisis, however,

“is not an end in itself.... Experience can and often does

demonstrate that a rule, once believed sound, needs modifica-

tion to serve justice better.... The flexibility and capacity of

the common law is its genius for growth and adaptation.”

(Citation omitted; internal quotation marks omitted.) State v.

Brocuglio, 264 Conn. 778, 793, 826 A.2d 145 (2003). In-

deed, “[i]f law is to have current relevance, courts must have

and exert the capacity to change a rule of law when reason so

requires.” (Internal quotation marks omitted.) State v. Vakil-

zaden, 251 Conn. 656, 663, 742 A.2d 767 (1999). “{Thus]

[t]his court ... has recognized many times that there are ex-

ceptions to the rule of stare decisis.” (Internal quotation

marks omitted.) /d.

We also acknowledge that, “[i]n assessing the force of

stare decisis, our case law has emphasized that we should be

especially cautious about overturning a case that concerns

statutory construction.... Despite this reluctance, however, we

have, on occasion, overruled cases that have involved the in-

terpretation of a statute.... Thus the fact that there is preexist-

ing case law on point is not, in and of itself, determinative of

the issue presently before us.” (Citations omitted; internal

quotation marks omitted.) Waterbury v. Washington, 260

Conn. 506, 538, 800 A.2d 1102 (2002). It is important to

note, moreover, that the holding of Paradise was considera-

bly more far-reaching than our conclusion therein that P.A.

76-35 has prospective effect only: we also held, in the exer-

cise of our common-law authority, that a// criminal statutes

of limitation are to be applied prospectively unless the lan-

60a

guage of the statute clearly expresses a contrary intent.°°

The breadth of our holding in Paradise-- involving, as it

does, a common-law rule of statutory construction--

necessarily tempers our traditional reluctance to upset the

settled interpretation of a particular statute.°! Because “a

50 it might be argued that, having announced the rule in Paradise that

criminal statutes of limitation will not be applied retroactively in the ab-

sence of clear statutory language to the contrary, the legislature is aware

of that rule and can tailor its legislative enactments accordingly. See

State v. Crowell, supra, 228 Conn. at 401, 636 A.2d 804. We reject that

contention because we think it is unwise to continue to require the legisla-

ture to conduct itself in accordance with a rule that is, itself, unwise and

unsound.

51 It is true that, following our opinion in Paradise, the

legislature did not further amend § 54-193 to express its intent that § 54-

193 should be accorded retroactive effect. As we previously has ob-

served, although legislative inaction following our interpretation of a

statute does not necessarily constitute legislative affirmation of that inter-

pretation, such inaction may be understood as a validation of our con-

struction. See, e.g., Rivera v. Commissioner of Correction, 254 Conn.

214, 252, 756 A.2d 1264 (2000). Under the present circumstances, we do

not believe that legislative inaction provides a reason to refrain from

overruling Paradise. We issued our opinion in Paradise in March, 1983,

approximately seven years after the April 6, 1976, effective date of P.A.

76-35, § 1. Thus, any uncharged murder or class A felony that, under our

opinion in Paradise, was subject to the five year limitation period of the

pre-1976 amendment version of § 54-193, necessarily had been commit-

ted no less than seven years prior to the issuance of our opinion in Para-

dise. Consequently, by the time we issued our opinion in Paradise, the

five year limitation period that we had deemed applicable to those crimes

in Paradise already would have expired with respect to those crimes.

Although the United States Supreme Court first held in 2003 that

‘the ex post facto clause of the United States constitution prohibits a state

[Foomote continued on next page]

6la

judicious reconside “<n of precedent cannot be as threaten-

ing to public faith in tne judiciary as continued adherence to

a rule unjustified in reason ... [we are confident that]

[rjespect for the process of adjudication [will] be enhanced,

not diminished, by our ruling [in the present case].”

Moragne v. States Marine Lines, 398 U.S. 375, 405, 90 S.Ct.

1772, 26 L.Ed.2d 339 (1970).

{Footnote continued from previous page]

from extending the limitation period for an offense committed after the

expiration of the original limitation period; see Stogner v. California,

supra, 539 U.S. at 632, 123 S.Ct. 2446; it was universally recognized at

the time of our decision in Paradise that an amendment that operated to

revive an expired limitation period with respect to a particular offense

violated the ex post facto clause. See, e.g., id., at 617-19, 123 S.Ct. 2446

(explaining unanimous agreement of courts and commentators that ex

post facto clause bars amendment to limitation period that revives previ-

ously expired limitation period). Indeed, in Paradise, we expressly de-

clined to decide whether the retroactive application of a criminal statute

of limitation violated the ex post facto clause; State v. Paradise, supra,

189 Conn. at 350, 456 A.2d 305; even though, as in the present case, the

extended limitation period became effective prior to the expiration of the

previously applicable limitation period. See id., at 348, 456 A.2d 305;

see also id., at 350 n.3, 456 A.2d 305 (“we reserve decision on the ques-

tion of whether the legislature could have extended the statute of limita-

tions and given it retrospective effect as those offenses on which the limi-

tation period had not already expired”). Because it was clear in 1983 that

the ex post facto clause prohibited any amendment to § 54-193 that pur-

ported to revive a previously time barred prosecution, we must presume

that the legislature elected to refrain from amending the pre-1976

amendment version of § 54-193 for that reason, and not necessarily be-

cause it agreed with our conclusion in Paradise.

62a

To summarize, the rationale of Paradise does not with-

stand careful analysis. Although we will not lightly reverse

long-standing precedent, we are unwilling to compound the

error that we made in Paradise by approving it again today.

Our responsibility to reconsider prior decisions of this court

when a party has so requested, together with our firm convic-

tion that Paradise was wrongly decided, prevent us from do-

ing so. We conclude, therefore, that an amendment to a

criminal statute of limitations applies to a crime committed

prior to the enactment of the amendment, in the absence of a

clear expression of legislative intent to the contrary, as long

as the preamendment limitation period had not yet expired

when the amendment became effective. Because there is no

indication that the legislature intended that P.A. 76-35, § 1,

was to have prospective effect only, that amendment, con-

trary to our conclusion in Paradise, applies retroactively to

crimes that were committed before its effective date but for

which the preamendment limitation period had not yet ex-

pired. Consequently, P.A. 76-35, § 1, applies to the October,

1975 murder of the victim. Because the defendant had no

vested statute of limitations defense prior to the enactment of

P.A. 76- 35, § 1, and because that provision excludes all class

A felonies, including murder, from its five year limitation

period, the state’s prosecution of the defendant for the vic-

tim’s murder was not time barred.

Ii

The defendant next claims that the state improperly

withheld certain exculpatory evidence, namely, a composite

drawing of a man observed walking near the crime scene on

the evening of October 30, 1975, and two reports prepared by

a State investigator profiling Kenneth Littleton and Thomas

Skakel as potential suspects. The defendant further claims

that the state’s failure to disclose that evidence deprived him

of his right to a fair trial in violation of Brady v. Maryland,

supra, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and its

63a

progeny. We reject each of these claims, which we address

in turn.

A

The following facts and procedural history are necessary

to our resolution of the defendant’s claim that the state vio-

lated his nghts under Brady by failing to disclose the com-

posite drawing. On May 21, 2001, the defendant filed a pre-

trial motion for disclosure and production, requesting, inter

alia, that the state disclose any “[i]nformation and/or material

which is exculpatory in nature,” including “[p]hotographs,

composite sketches or other media replications that depict the

likeness or physical attributes of [any] alleged perpetrator of —

this crime.”52 The state, which had indicated that it was

adopting an open file policy for purposes of the case, did not

object to this particular request, and, on August 15, 2001, the

trial court issued an order requiring that the state comply with

this and all other discovery requests to which the state had

not objected. In accordance with its open file policy and the

court’s order pertaining to discovery, the state provided the

defendant with numerous reports and documents relating to

the investigation of the case.

One such report states that, on October 31, 1975, inves-

tigating officers searching the general vicinity of the murder

scene were approached by special officer Charles Morganti,

Jr. Morganti informed the officers that he had been on special

duty patrol of the Belle Haven neighborhood the previous

evening when, at about 10 p.m., he observed a white male

walking in a northerly direction on Field Point Road. Mor-

52 The defendant’s discovery request was twenty pages in length. The

defendant previously had filed a similar request, on June 12, 2000, at

which time the case still was pending in the Superior Court for Juvenile

Matters.

64a

ganti then observed the man turn onto Walsh Lane. Morganti

approached the individual and asked him where he was go-

ing. The individual replied that he lived on Walsh Lane and

that he was going home. Morganti further reported to the of-

ficers that he observed the man again, a few minutes later,

walking northbound on Otter Rock Drive, just north of the

Walsh Lane intersection.>3

A second such report reflects the fact that Morganti was

interviewed by the police again the following day. That re-

port states that Morganti had agreed to “appear at the

[djetective [b]ureau for the purpose of putting [together] a

composite picture of the subject that he had observed on

Field Point [Road] near Walsh [Lane] on Thursday, [October

30, 1975].”

Another police report indicates that, on November 5,

1975, the police interviewed Carl Wold, a resident of Walsh

Lane in the Belle Haven neighborhood. Wold informed the

police that, at about 7:20 p.m. on October 30, 1975, he went

out for his nightly walk. According to Wold, he walked east

on Walsh Lane, turned right onto Field Point Road and then

turned south toward Field Point Circle.54 He recalled having

53 Morganti provided the following description of the individual he had

observed walking that evening: ‘White, male, [six feet] tall, 200

[pounds], late [twenties] to early [thirties], dark rimmed glasses, fatigue

jacket, tan [slacks], blonde hair.”

54 Wold gave the interviewing officers the following description of his

attire on the evening in question: “Brown (olive) field jacket, yellow

corduroy shirt, tan slacks top-sider shoes ....” The report also includes the

following physical description of Wold: “[Six feet, one inch], 210

[pounds], dark brown, straight hair, medium length and wears silver

rimmed glasses.” The report further describes Wold as a twenty-three

year old white male.

65a

a short conversation with an officer at the Field Point police

booth and, later, on his way home, being stopped by a special

police officer on Field Point Road, just south of the Walsh

Lane intersection. This officer had inquired of Wold where

he was headed, and Wold responded that he was returning to

his home on Walsh Lane. Wold further stated that he re-

turned home at about 8 p.m. and remained there for rest of

the evening.°5 Wold denied walking on Otter Rock Drive

that evening.°®

Approximately nineteen years later, on October 8, 1994,

Inspector Frank Garr of the office of the state’s attorney in-

terviewed Morganti again.5”? The written report of that inter-

view reflects that Morganti informed Garr that James F.

Murphy, a private investigator who had been retained by the

Skakel family, had contacted him and questioned him about

the “incident involving the individual [that Morganti had]

stopped on Field Point Road, in Belle Haven” on the evening

of October 30, 1975. Morganti also told Garr that he saw

55 Wold’s father, with whom Wold resided, corroborated Wold’s ac-

count of his activities that evening. In addition, a second special duty

officer, John Duffy, was on duty at the Field Point police booth sometime

between 6 p.m. and 6:30 p.m. on the evening of October 30, 1975, when

he observed Wold, who was known to Duffy as a resident of Walsh Lane,

taking his daily walk on Field Point Road. Duffy also recalled having a

brief conversation with Wold, who told Duffy that he was heading home.

56 The police contacted Morganti again on November 5, 1975. At that

time, Morganti stated that he was certain that the man to whom he had

spoken on Field Point Road on the evening of October 30, 1975, was the

same individual he later observed walking on Otter Rock Drive.

57 The copy of the report provided to this court does not indicate the

identity of the investigator who authored the report. Both the state and

the defendant have indicated, however, that Garr wrote the report.

66a

that person walking north on Field Point Road at approxi-

mately 8 p.m. that evening. Morganti further stated that he

was replacing a fallen road stanchion just north of the resi-

dence of Cynthia Bjork on Otter Rock Drive sometime be-

tween 9:30 and 10 p.m. that evening when, from a distance of

approximately one hundred yards, he observed the same in-

dividual “walking in a northerly direction through the front

yard of a residence on Otter Rock Drive, across from the

Skakel residence.”>8 The report also states that, at the time

of the original police investigation of the victim’s murder,

“Morganti reported the entire episode to the [police] investi-

gators and assisted in the making of a composite sketch of

the individual. A complete investigation into the matter was

instigated, and it was determined that the individual was ...

Carl Wold.” The report further states that Garr, who was ac-

companied by Murphy and, apparently, Morganti, then pro-

ceeded to the location on Otter Rock Drive where Morganti

recalled having observed the individual for a second time on

the evening of October 30, 1975.59

Following the jury verdict and shortly before sentencing,

the defendant, on August 26, 2002, filed an amended motion

for a new trial and request for an evidentiary hearing,®°

58 Another police report documents an interview with Bjork, who lived

on Otter Rock Drive in the Belle Haven neighborhood at the time of the

murder, Bjork told police that her husband had seen Morganti outside her

house replacing a fallen road stanchion at about 9:40 p.m. on October 30,

1975.

59 According to the report, Garr confirmed that this individual was ap-

proximately 100 yards from Morganti when Morganti saw the individual

for the second time that evening.

60 Practice Book § 42-53 authorizes the filing of a motion for a new

trial. Practice Book § 42-54 provides that, “[uJnless otherwise permitted

[Footnote continued on next page]

67a

claiming, inter alia, that the state had violated his rights under

Brady by failing to make a timely disclosure of a composite

drawing of the individual who Morganti had observed on the

evening of October 30, 1975.6! In support of his claim, the

defendant asserted that the state had not provided him with a

copy of that drawing until August ~1, 2002, and that the

drawing was significant because it tended to buttress his third

party culpability defense. In particular, the defendant as-

serted that the composite drawing bore a strong resemblance

to Littleton, a former suspect in the victim’s murder whom

the defendant, in support of his third party culpability de-

fense, had identified as a likely perpetrator. The defendant

further maintained that, although the state had concluded that

Wold was the person who Morganti had observed near the

crime scene at or near the time of the victim’s murder, dis-

crepancies in Wold’s and Morganti’s statements as to when

Morganti saw Wold cast doubt on the state’s conclusion.

{Footnote continued from previous page]

by the judicial authority in the interests of justice, a motion for a new trial

shall be made within five days after a verdict or finding of guilty or

within any further time the judicial authority allows during the five-day

period.”

6! The defendant’s original motion for a new trial was filed on June 12,

2002.

62 In his brief to this court, the defendant represents that “[a]fter [he]

was convicted, but prior to sentencing, [his] new counsel inquired about

the existence of the sketch ....” The record otherwise is silent as to when

the defendant’s new counsel, who filed an appearance on behalf of the

defendant after the jury verdict, requested the drawing. The record also is

devoid of any indication as to what specifically had prompted the defen-

dant’s new counsel to make such a request.

68a

The trial court heard argument on the defendant’s mo-

tion on August 28, 2002, the same day that the sentencing

hearing commenced. At the hearing on the defendant’s mo-

tion, defense counsel represented that, despite the state’s

open file policy in the case, the composite drawing was not

among the materials that the state had made available to the

defendant’s trial counsel prior to trial. Defense counsel

further represented that the state had provided the defen-

dant’s trial counsel with 1806 pages of discovery in connec-

tion with the case.

During the argument, the trial court asked the defen-

dant’s trial counsel whether he had received, prior to trial, the

1975 investigative report that refers to Morganti’s willing-

ness to participate in the creation of a composite drawing,

and the 1994 investigative report that refers to a completed

composite drawing. The defendant’s trial counsel] answered

in the affirmative with respect to both reports. At the conclu-

sion of the argument, the court denied the defendant’s motion

for a new trial and for an evidentiary hearing on that mo-

tion.65 On appeal, the defendant renews his claim that he

63 The portion of the hearing during which the parties addressed the

issue of the composite drawing was argued on behalf of the defendant by

attorney Hubert Santos, whom the defendant had retained after the jury

had returned its verdict. The defendant also was represented at the hear-

ing by his trial counsel, Michael Sherman.

64 The state has not challenged the defendant’s representation that his

trial counsel had received 1806 pages of materials from the state during

the course of pretrial discovery.

65 The trial court rejected the defendant’s claim regarding the compos-

ite drawing both on the ground that the claim was untimely and because it

lacked merit. In view of our conclusion that the trial court properly re-

jected the defendant’s claim on its merits, we need not address the issue

{Footnote continued on next page}

69a

was deprived of a fair trial by virtue of the state’s failure to

_ produce the composite drawing prior to trial.

Our analysis of the defendant’s claim begins with the

pertinent standard, set forth in Brady and its progeny, by

which we determine whether the state’s failure to disclose

evidence has violated a defendant’s right to a fair trial. In

Brady, the United States Supreme Court held that “the sup-

pression by the prosecution of evidence favorable to an ac-

cused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Brady v. Mary-

land, supra, 373 U.S. at 87, 83 S.Ct. 1194. In Strickler v.

Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286

(1999), the United States Supreme Court identified the three

essential components of a Brady claim, all of which must be

established to warrant a new trial: “The evidence at issue

[Footnote continued from previous page]

of the timeliness of the defendant’s Brady claim insofar as it relates to the

composite drawing.

66 We note, preliminarily, the standard of review applicable to both of

the defendant’s claims. “Appellate review of a trial court’s decision

granting or denying a motion for a new trial must take into account the

trial judge’s superior opportunity to assess the proceedings over which he

or she has personally presided.... Thus, [a] motion for a new trial is ad-

dressed to the sound discretion of the trial court and is not to be granted

except on substantial grounds.... In our review of the denial of a motion

for [a new trial}, we have recognized the broad discretion that is vested in

the trial court to decide whether an occurrence at trial has so prejudiced a

party that he or she can no longer receive a fair trial. The decision of the

trial court is therefore reversible on appeal only if there has been an abuse

of discretion.” (Citation omitted; internal quotation marks omitted.)

State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999).

70a

must be favorable to the accused, either because it is exculpa-

tory, or because it is impeaching; that evidence must have

been suppressed by the State, either willfully or inadver-

tently; and prejudice must have ensued.” J/d., at 281-82, 119

S.Ct. 1936; see also State v. Wilcox, 254 Conn. 441, 452, 758

A.2d 824 (2000) (“[t]o establish a Brady violation, the de-

fendant must show that [1] the government suppressed evi-

dence, [2] the suppressed evidence was favorable to the de-

fendant, and [3] it was material [either to guilt or to punish-

ment]” [internal quotation marks omitted]). Under the last

Brady prong, the prejudice that the defendant suffered as a

result of the impropriety must have been material to the case,

such that “the favorable evidence could reasonably be taken

to put the whole case in such a different light as to undermine

confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419,

435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The trial court

concluded that the defendant had failed to demonstrate either

that the composite drawing was suppressed or that it was ma-

terial. For the reasons that follow, we conclude that the de-

fendant cannot show that the state suppressed the composite

drawing for purposes of Brady. Consequently, we need not,

and, therefore, do not, reach his claim concerning the materi-

ality prong of the Brady test.67

67 We note that the trial court rejected the defendant’s materiality claim

on the ground that the composite drawing would not have been admissi-

ble at trial because Morganti did not testify even though he was an avail-

able witness and could have described the individual he saw on the eve-

ning of October 30, 1975. We agree with the defendant that, contrary to

the conclusion of the trial court, the fact that Morganti did not testify at

trial has no bearing either on the admissibility or materiality of the draw-

ing; the defendant presumably would have placed the drawing into evi-

dence, through Morganti or otherwise, if the defendant had been provided

with a copy of the drawing in advance of trial. In any event, the trial

[Footnote continued on next page}

Tha

For purposes of this appeal, we presume that the state

did not provide the defendant with a copy of the drawing

prior to August 21, 2002.68 To the extent that the state failed

to do so, that failure constituted a violation of the open file

policy to which the state had announced it would adhere in

the case. That fact alone, however, is not dispositive of the

[Footnote continued from previous page]

court never made any findings on the materiality issue, which necessar‘ly

involves a fact specific inquiry into the relative import of any exculpatory

evidence that has been suppressed in view of the trial evidence as a

whole. See, e.g., United States v. Gil, 297 F.3d 93, 103 (2d Cir.2002)

(“We assess materiality or prejudice in light of the trial evidence. Where

the evidence against the defendant is ample or overwhelming, the with-

held Brady material is less likely to be material than if the evidence of

guilt is thin.”); see also State v. Hammond, 221 Conn. 264, 294, 604 A.2d

793 (1992) (noting that reviewing court will give deference to finding of

trial court on claim of possible Brady violation because of “difficulty

inherent in measuring the effect of nondisclosure in the course of a

lengthy trial with many witnesses and exhibits” [internal quotation marks

omitted]). For that reascn, and because our rejection of the defendant’s

challenge to the trial court’s resolution of the suppression issue is disposi-

tive of the defendant’s claim concerning the composite drawing, we do

not address the defsndant’s contention that the trial court improperly de-

termined that the drawing was not material.

68 We make this presumption in light of the defendant’s representation

that he had not been provided with a copy of the composite drawing and

because the trial court, having rejected the defendarit’s request for a hear-

ing on the issue, made no factual finding on th =

69 As we previously have stated, “although w* encourage the use of

open file policies and recognize that this practice may increase the effi-

ciency and the fairness of the criminal process ... [w]e ... [nevertheless]

urge parties not to consider implementation of an open file policy as satis-

{Footnote continued on next page]

72a

defendant’s claim regarding the suppression component of

Brady because it is well established that “evidence is not

considered to have been suppressed within the meaning of

the Brady doctrine if the defendant or his attorney either

knew, or should have known, of the essential facts permitting

him to take advantage of [that ] evidence.” (Emphasis

added; internal quotation marks omitted.) United States v.

Payne, 63 F.3d 1200, 1208 (2d Cir. 1995), cert. denied, 516

U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996); accord

United States v. Zichettello, 208 F.3d 72, 103 (2d Cir. 2000),

cert. denied sub nom. Lysaght v. United States, 531 US.

1143, 121 S.Ct. 1077, 148 L.Ed.2d 954 (2001); see also

United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), —

cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019

(1983). The rationale underlying this exception to the state’s

disclosure obligation under Brady is obvious: Brady is de-

signed to assure that the defendant is not denied access to

exculpatory evidence known or available to the state but un-

known or unavailable to him. See, e.g., United States v.

LeRoy, supra, at 619; United States v. Ruggiero, 472 F.2d

599, 604 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772,

37 L.Ed.2d 398 (1973). It is not intended either to relieve the

defense of its obligation diligently to seek evidence favorable

to it or to permit the defense to close its eyes to information

likely to lead to the discovery of such evidence. Thus, the

composite drawing will not be deemed to have been sup-

pressed by the state, notwithstanding the open file policy in

effect in this case, if the defendant or the defendant’s tnal

[Footnote continued from previous page]

faction of the defendant’s discovery requests or the state’s constitutional

obligation to disclose exculpatory materials.” (Citation omitted; internal

quotation marks omitted.) State v. Wilcox, supra, 254 Conn. at 453 n. 19,

758 A.2d 824.

73a

counsel reasonably was on notice of the drawing’s existence

but nevertheless failed to take appropriate steps to obtain it.

See, e.g., United States v. LeRoy, supra, at 618-19 (defendant

cannot prevail under Brady if he was on notice of essential

facts that would have enabled him to take advantage of ex-

culpatory evidence but he failed to do so).

We agree with the finding of the trial court that, in the

present case, the defendant or his trial counsel clearly was on

notice of the existence of the composite drawing. First, the

1975 investigative report refers to the fact that Morganti had

agreed to return to police headquarters to assist in the prepa-

ration of a composite drawing of the person he had observed

in the vicinity of the crime scene on the evening of October

30, 1975. Second, the 1994 investigative report states that

Morganti had “assisted in the making of a composite sketch

of [that] individual.” Thus, as the defendant had noted in the

memorandum that he filed with the trial court in support of

his amended motion for a new trial, “[t]he circumstances sur-

rounding the preparation of the sketch are provided in the

police reports prepared during the investigation.” Finally, the

state provided the defendant and his trial counsel with those

reports during discovery, and the defendant’s trial counsel

acknowledged that he was aware of them. The defendant or

his trial counsel, therefore, had actual notice of the existence

of the composite drawing and, consequently, the defendant

was obliged to supplement his general Brady request with a

specific requést for that particular piece of evidence.7°

70 Indeed, on April 16, 2002, after the commencement of jury selection

but before the evidentiary portion of the trial had commenced, the defen-

dant did file a “supplemental discovery motion for exculpatory evidence”

in which he made several specific requests for information relating to

Littleton, the individual who the defendant contends strongly resembles

the person depicted in the composite drawing, including the results of any

[Footnote continued on next page]

T4a

Moreover, the defendant was well aware of Morganti’s

potential significance as a witness long before trial. Indeed,

Murphy, the defendant’s investigator, interviewed Morganti

in 1994 and, together with Garr and Morganti, went to the

location where Morganti had observed the individual who the

defendant contends may have been Littleton. It is well

known, of course, that police investigators routinely use

composite drawings to aid in identifying potential suspects,

and the defendant’s investigator, who had unfettered access

to Morganti, had every opportunity to ask Morganti if he had

assisted the police in creating one.7!

The defendant asserts that it is unreasonable to conclude

that the 1975 and 1994 investigative reports were sufficient

notice of the existence of the composite drawing because

those reports were “buried” among 1806 pages of other

documents produced by the state. This argument founders on

the acknowledgment of the defendant’s own trial counsel that

he was aware of the two reports. Moreover, the defendant

makes no claim that the reports were disclosed late or that he

[Footnote continued from previous page]

scientific or forensic tests tending to link Littleton to the victim’s murder.

The defendant, however, never filed a supplemental discovery request for

the composite drawing.

71 Because the defendant or his trial counsel had actual notice of the -

existence of the composite drawing, we need not decide whether the de-

fendant’s ready access to Morganti would have been sufficient, without

more, to have relieved the state of its burden of production under Brady.

See, e.g., United States v. LeRoy, supra, 687 F.2d at 619 (government’s

failure to disclose witness’ allegedly exculpatory grand jury testimony

does not constitute suppression of that testimony for purposes of Brady

when defendant knew of witness and fact that witness might have testi-

fied).

75a

or his trial counsel otherwise did not have ample time, oppor-

tunity or resources to consider them. 72

The defendant also contends that, notwithstanding the

existence of the 1975 and 1994 reports, he did not have ade-

quate notice of the exculpatory nature of the composite draw-

ing. This claim is predicated on the defendant’s dual asser-

72 We note that the trial court issued its discovery o.uer on August 15,

2001, and that the state filed a notice with the court on September 25,

2001, that it had complied with that order. In the absence of any claim or

indication to the contrary, we presume that the 1975 and 1994 investiga-

tive reports that refer to the composite drawing were included in the ma-

terials turned over to the defendant and his trial counsel in accordance

with the state’s notice of compliance. Because the evidentiary portion of

the trial did not commence until May 7, 2002, the defendant and his trial

counsel had more than sufficient opportunity to review those reports prior

to trial. ~

The defendant’s reliance on United States v. Gil, 297 F.3d 93 (2d Cir.

2002), is therefore misplaced. In Gil, the government did not disclose a

certain exculpatory memorandum until one business day before trial even

though the defendant, John Gil, had made numerous specific requests for

such evidence. /d., at 105-106. In addition, because the memorandum

was located “among five reams” of other documents and not clearly in-

dexed, it was “not easily identifiable as a document of significance ....”

Id., at 106. Under all of the circumstances of the government’s belated

disclosure, the Second Circuit Court of Appeals concluded that the

memorandum had been suppressed because, “[ajlthough the

memo[{randum] was produced before trial, the defense was not in a posi-

tion to read it, identify its usefulness, and use it.” /d. In the present case,

the defendant or his trial counsel had notice of the composite drawing

well in advance of trial but failed to request it until after the trial had con-

cluded.

+

76a

tion that: (1) he could not have known the exculpatory value

of the drawing until he saw it and compared it to a photo-

graph of Littleton; and (2) the 1994 report indicated that, in

the view of the police, the person depicted in the drawing

was Wold, who was not a suspect in the victim’s murder.

Neither of these assertions is reason to excuse the defen-

dant’s failure to have requested the drawing. The defendant

had a duty to request the composite drawing because it was

potentially exculpatory, irrespective of what the state may

have thought about the drawing’s import. In other words, the

defendant could not wait until the completion of the trial to

ascertain the value of the drawing to his defense; rather, he

was obligated to obtain that evidence and to evaluate its util-

ity prior to trial.

The defendant further argues that he cannot be faulted

for failing to make a specific request for the composite draw-

ing, despite the references to the drawing in the reports he did

receive, because he was entitled to conclude that, in light of

the state’s open file policy, the state would have produced the

drawing if it existed. In support of this contention, the de-

fendant cites a number of cases that have articulated the gen-

eral principle that a defendant normally may rely on the gov-

ernment’s representation that it has made full disclosure of

information to which the defendant is entitled under Brady.

E.g., Strickler v. Greene, supra, 527 U.S. at 284, 119 S.Ct.

1936; see also United States v. Payne, supra, 63 F.3d at

1207-1208. In each of those cases, however, the court also

indicated that defense counsel had no reason to know that the

government’s disclosure was less than complete. See Strick-

ler v. Greene, supra, at 284, 119 S.Ct. 1936; United States v.

Payne, supra, at 1208. In the present case, by contrast, the

defendant or his trial counsel had actual notice of the exis-

tence of the allegedly exculpatory evidence, yet failed to no-

tify the state that it had not provided them with a copy of it. -

The defendant has cited no case, and we are aware of none,

in which a defendant had notice of the existence of poten-

77a

tially exculpatory evidence but nevertheless was excused by

the court from taking reasonable steps to obtain it. We, too,

decline to endorse such an approach because there simply is

no reason why a defendant who is aware of such evidence

should not be required to seek it at a point in time when any

potential constitutional infirmity arising from the state’s fail-

ure to provide the evidence can be avoided without the need

for a new trial.7>

Furthermore, the defendant’s contention that he reasona-

bly believed that his responsibility to obtain Brady material

ended with the state’s announcement of an open file policy is

b

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