Gonzalez v. Warden, State Prison

Full title: Alfredo Gonzalez v. Warden, State Prison

Court: Superior Court of Connecticut

Date published: Nov 22, 2019

CV154007014S (Conn. Super. Ct. Nov. 22, 2019)

Opinion

CV154007014S

11-22-2019

Alfredo Gonzalez v. Warden, State Prison

Bhatt, J.

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.

MEMORANDUM OF DECISION

Bhatt, J.

It is axiomatic that a valid criminal conviction requires proof beyond a reasonable doubt. The troublesome question, however, is proof of what? Which facts must be proven by the state beyond a reasonable doubt in order to secure a conviction? Which facts may be delegated to the defense to prove or disprove? What limits does the due process clause place on assigning a fact as an element, for which the burdens of production and persuasion rest with the prosecution, and assigning a fact as a defense, for which the burden of production and/or persuasion rests with the defendant? That is the central question in this case. The petitioner contends that our statutory scheme for manslaughter in the first degree with a firearm violates the due process clause because a defendant in a crime that constitutes manslaughter in the first degree with a firearm who maintains that he did not know or intend that his co-participant use a firearm to commit the crime, must raise this lack of knowledge as an affirmative defense pursuant to General Statutes § 53a-16b. He argues that the due process clause instead requires that the defendant’s intent that the co-participant use a firearm be proven beyond a reasonable doubt by the prosecution, because it is actually an element of the offense.

Our Supreme Court’s decision in the petitioner’s direct appeal, in conjunction with our jurisprudence on this subject, compels this court to deny the petition.

I. FACTUAL BACKGROUND

Alfredo Gonzalez was arrested and charged with murder as an accessory in violation of General Statutes § § 53a-8 and 53a-54a(a), manslaughter in the first degree with a firearm as an accessory in violation of § 53a-8 and General Statutes § 53a-55a, conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(5), hindering prosecution in the second degree in violation of General Statutes § 53a-166, and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1). He was acquitted of the charges of accessory to murder and conspiracy to commit murder, and convicted of the remainder. The trial court sentenced him to a total effective sentence of thirty-eight years imprisonment, with ten years of special parole. He appealed to our Appellate Court, and our Supreme Court transferred the appeal. His sole issue on appeal was that "the trial court improperly instructed the jury regarding the elements of the offense of manslaughter in the first degree with a firearm as an accessory. Specifically ... that accessorial liability under § 53a-8 encompasses both the specific intent to cause a result, in this case, to cause the victim serious physical injury, as well as the general intent to perform the physical acts that constitute the offense of manslaughter in the first degree with a firearm, including the use, carrying or threatened use of a firearm." (Internal quotation marks omitted.) State v. Gonzalez, 300 Conn. 490, 495, 15 A.3d 1049 (2011). As discussed below in greater depth, our Supreme Court affirmed his conviction. in its decision, it summarized the salient facts underlying his convictions as follows:

The defendant had engaged in an ongoing feud with the victim, Samuel Tirado. On the evening of May 5, 2006, the defendant and three friends, Anthony Furs, Christian Rodriguez and Melvin Laguna, went out for the evening in Rodriguez’ red GMC Yukon. They stopped briefly at one bar, and then decided to go to a bar named Bobby Allen’s in Waterbury because they knew that the victim went there frequently, and they wanted to start a fight with him. En route to Bobby Allen’s, the defendant observed that there were two guns in the Yukon, in addition to a razor blade that he intended to use in that fight, and remarked that, if he had the money, he would give it to Furs to "clap," or shoot, the victim. Rodriguez, who also disliked the victim, then offered to pay Furs $1,000 to shoot the victim, which Furs accepted. When they arrived at Bobby Allen’s, the defendant left the group briefly to urinate behind a nearby funeral home. When he rejoined the group, Furs gave the defendant the keys to the Yukon and told him to go get the truck because the victim was nearby speaking with Rodriguez. The defendant and Furs then drove a short distance toward Bobby Allen’s in the Yukon, and Furs, upon spotting the victim and Rodriguez outside the bar, jumped out of the Yukon and shot the victim in the chest with a black handgun, mortally wounding him. Rodriguez and Laguna then fled the scene on foot, while Furs and the defendant drove off in the Yukon to a friend’s nearby apartment on South Main Street. Thereafter, with the assistance of friends, Furs and the defendant fled separately from the apartment, and the defendant subsequently disposed of the gun, first by hiding it in a woodpile at his mother’s home, and later by throwing it into Pritchard’s Pond (pond) in Waterbury.

Thereafter, Waterbury police officers investigating the shooting questioned the defendant after arresting him on an outstanding motor vehicle warrant on May 6, 2006. The defendant initially gave a statement denying any involvement in the incident. Subsequently, on May 15, 2006, the Waterbury police reinterviewed the defendant, at which time he admitted disposing of the gun by throwing it into the pond. The defendant then accompanied the officers to the pond and showed them where he had thrown the gun, which enabled a dive team to recover it several days later. After they returned to the police station, the defendant gave the police a second statement admitting that he had lied in his initial statement and explaining his role in the events leading to and following the shooting.

(Footnotes omitted.) Id., 492-94.

On appeal, the petitioner argued "that the trial court’s jury instructions improperly omitted an essential element of the offense of manslaughter in the first degree with a firearm as an accessory, namely, the defendant’s intention that the principal would use, carry or threaten the use of a firearm during the commission of the offense." Id., 492. Our Supreme Court disagreed with the petitioner, concluding that the jury instructions "were a proper statement of the essential elements of manslaughter in the first degree with a firearm as an accessory." Id. The petitioner then filed a petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. Gonzalez v. Commissioner, United States District Court, Docket No. 3:11 cv 1012 (VLB) (D.Conn. July 20, 2012). In that petition, he raised only one claim: that Connecticut’s statutory scheme of manslaughter in the first degree with a firearm violates Due Process because it does not require the state to prove every element beyond a reasonable doubt. Specifically, the state is not required to prove intent to use a firearm in the commission of the offense. The state countered that this claim was not properly raised in state court and thus, the federal district court did not have jurisdiction because the petitioner had not exhausted his state court remedies. Judge Bryant agreed and dismissed the petition without prejudice.

The petitioner then filed a petition for writ of habeas corpus in state court, under Docket Number CV-11-4004210-S. Counsel filed an amended petition on his behalf, but the amended petition did not raise the issue identified by Judge Bryant. The sole issue in that petition was that trial counsel was ineffective for following a strategy that was based on an inaccurate statement of the law, i.e., that the state was required to prove specific intent that a firearm be used. The habeas court, Cobb, J., denied the petition, Gonzalez v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-11-4004210-S (March 17, 2014, Cobb, J.), and our Appellate Court, in a memorandum per curiam decision, dismissed the appeal. Gonzalez v. Commissioner of Correction, 160 Conn.App. 902, 125 A.3d 296 (2015). The instant petition followed, in which the petitioner raises four grounds of relief: the substantive due process violation and one count each alleging failure of trial, appellate and habeas counsel to raise the substantive due process violation.

II. FINDINGS OF FACT

The facts underlying the petitioner’s conviction are not in dispute and need not be repeated here. At the underlying criminal trial, the petitioner was represented by Attorney Lawrence Hopkins. On direct appeal, he was represented by Attorney Raymond Durelli. He represented himself in federal court. He was represented by Attorney Joseph Jaumann in his prior state habeas corpus petition.

Attorney Durelli believed he had raised the issue in question on direct appeal, albeit in the form of a challenge to the jury instruction. He testified that very rarely has he challenged the constitutionality of a statute. Attorney Jaumann did not raise the instant issue after the matter was returned to state court based on a finding by Judge Bryant that the issue had not been exhausted in state court. Attorney Jaumann did not believe the issue had any merit and did not find any cases supporting the position that the statute, as interpreted by our appellate courts, violated due process because it impermissibly shifted the burden of proof of an essential element to the defense.

Since resolution of the petitioner’s claim in count one will be dispositive of the claims in the remaining counts, the court focuses its discussion on the question of whether there is a substantive due process violation in our statutory scheme for accessory to manslaughter in the first degree with a firearm.

III. LEGAL ANALYSIS

A. REQUIREMENTS OF THE DUE PROCESS CLAUSE

I. In re Winship It is one of the fundamental tenets of the criminal justice system that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also Commonwealth v. Webster, 59 Mass. 295, 296 (1850), abrogated on other grounds by Commonwealth v. Russell, 470 Mass. 464, 23 N.E.3d 867 (2015) ("each fact, necessary to the conclusion sought to be established, must be proved by competent evidence beyond a reasonable doubt ..."). This requirement is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, supra, 372 (Harlan, J., concurring); State v. Lawrence, 282 Conn. 141, 193-94, 920 A.2d 236 (2007). Thus, "because in criminal cases we impose almost all of the risk of error on the state, we require the fact finder to have a very high degree of subjective certitude: no reasonable doubt about the defendant’s guilt." State v. Rizzo, 266 Conn. 171, 211, 833 A.2d 363 (2003). This very high degree of subjective certitude of guilt beyond a reasonable doubt applies to each and every element of the charged offense. See State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984).

Of course, the power of the state to define the elements of offenses as they see fit is the subject of constant and complex litigation and is the critical issue in the instant case.

2. Mullaney, Patterson, elements and allocating the burden of persuasion

At issue in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), was the Maine statute for murder. According to that statute, murder was defined as the unlawful killing of a human being "with malice aforethought, either express or implied." (Internal quotation marks omitted.) Id., 686 n.3. Manslaughter was a killing "in the heat of passion, on sudden provocation, without express or implied malice aforethought." (Internal quotation marks omitted.) Id. The trial court in Mullaney instructed the jury that "malice aforethought is an essential and indispensable element of the crime of murder ... without which the homicide would be manslaughter. The jury was further instructed, however, that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." (Citation omitted; internal quotation marks omitted.) Id., 686. The Supreme Judicial Court of Maine ruled that in Maine, murder and manslaughter are not distinct crimes but, rather, different degrees of the single generic offense of felonious homicide. State v. Wilbur, 278 A.2d 139, 144 (1971). A conviction for manslaughter significantly lowered the criminal penalties to which a defendant could be subjected. Cf. Mullaney v. Wilbur, supra, 698 ("[t]he fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly"). Thus, the issue before the United States Supreme Court was "whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process." Id., 692. Accepting as binding the Maine Supreme Judicial Court’s interpretation of the state statutes that murder and manslaughter were not different crimes, id., 690-91, the Court held that Maine’s shifting of the burden to the defendant to prove that he acted in the heat of passion in order to reduce murder to manslaughter violated due process. Id., 702-04.

The Court was seemingly faced with the same issue in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). At issue in that case was the New York statutory scheme for murder and manslaughter. See id., 202 ("whether New York’s allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process ..."). Under the New York statutes, murder was defined as the intentional killing of another. Id., 198. New York law made it an affirmative defense that the defendant killed another under the influence of extreme emotional disturbance. Id., 200. If the defendant proved this, then he was guilty of manslaughter. Id. This did not run afoul of Winship and Mullaney, according to a majority of the Court, because the defendant did not bear the burden of disproving any of the elements of the offense, viz., the intent to kill another. See id., 205-06, 214-15. This differed from the Maine statute in Mullaney because there, malice aforethought was presumed and had to be rebutted by the defendant. Id., 216. Since New York did not presume any element, the statute did not violate due process. Id., 205-06. The majority held that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Id., 210. Since the definition of the offense did not include extreme emotional disturbance, requiring the defendant to prove that mitigating circumstance was not unconstitutional. Id., 206-07.

In doing so, the Court reaffirmed the principle that "preventing and dealing with crime is much more the business of the States than it is of the Federal Government ... [and] it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decision in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Citation omitted; internal quotation marks omitted.) Id., 201-02. The Court was, nonetheless, mindful that "[t]his view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes." Id., 210. The Court cautioned that "there are obviously constitutional limits beyond which the States may not go in this regard." Id. For instance, "it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime." McFarland v. American Sugar Refining Co., 241 U.S. 79, 86, 36 S.Ct. 498, 60 L.Ed. 899 (1916). Further, legislatures "cannot validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt." (Internal quotation marks omitted.) Patterson v. New York, supra, 210. But, and of particular relevance to the present case, the Court in Patterson cautioned that "it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment." Id., 207.

Justice Powell, joined by Justices Brennan and Marshall, dissented from this decision. Id., 216. According to Justice Powell, the majority decision reached its conclusion based on a "narrowly literal parsing of the holding in Winship ." Id., 221. According to him, the majority’s conclusion was based on the rationale that "[t]he only facts necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime." (Internal quotation marks omitted.) Id. This test, he warned, "allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense." Id., 223. Rejecting this "simplistic lesson in statutory draftsmanship"; id., 224; Justice Powell, instead, provided a two-part test: "[t]he Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punishment alone is not enough. It also must be shown that in the Anglo-American legal tradition the factor in question historically has held that level of importance. If either branch of the test is not met, then the legislature retains its traditional authority over matters of proof. But to permit a shift in the burden of persuasion when both branches of this test are satisfied would invite the undermining of the presumption of innocence ..." (Footnotes omitted.) Id., 226-27.¹

1 This test has also been met with some substantial criticism, in part for its "excessive reliance on history"; J. Jeffries & P. Stephan, "Defenses, Presumptions, and Burden of Proof in the Criminal Law," 88 Yale L.J . 1325, 1363 (1979); at a time of "the greatest surge of penal law reform that this country has ever known." Id., 1364.

"Winship spoke of the constitutional requirement to prove beyond a reasonable doubt every fact necessary to constitute the crime, but did not explain when a fact was necessary in a constitutional sense. The question more accurately stated, therefore, is ... what facts should the government constitutionally be required to prove beyond a reasonable doubt before the defendant can be found guilty." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) S. Sundby, "The Reasonable Doubt Rule and the Meaning of Innocence," 40 Hastings L.J. 457, 459 (1989). Mullaney and Patterson seem to be at odds with no clear rule that can reconcile the two. S. Saltzburg, "Burdens of Persuasion in Criminal Cases: Harmonizing the Views of the Justices," 20 Am.Crim.L.Rev. 393, 398 (1983); Note, "The Constitutionality of Affirmative Defenses After Patterson v. New York," 78 Colum.L.Rev. 655, 664 (1978) ("contrary to the finding of the Patterson Court, New York and Maine law are indistinguishable for purposes of applying Winship "). The constitutional limits beyond which states may not go in allocating burdens of proof and burdens of persuasion were never clearly explained by the Court and have caused great confusion and debate among lower courts and commentators. This stems from the fact that designating a fact as an element or a defense is essentially arbitrary. Members of the Court themselves recognized this confusion in subsequent cases. See Moran v. Ohio, 469 U.S. 948, 952, 105 S.Ct. 350, 83 L.Ed.2d 285 (1984) (Brennan, J. dissenting from denial of certiorari) ("Thus, in order to determine whether a State may allocate the burden of proof on an issue in a criminal prosecution to the defendant, it must first be determined what elements constitute the crime in question; this was the problem in Mullaney and Patterson . Yet the resolution of those cases left the solution to this problem in some doubt and the lower courts in considerable disarray"); Model Penal Code § 1.13 (currently § 1.12), comment 111 (Tentative Draft No. 4, 1955) (there is "no certain principle by which to gauge when a qualification of the scope of a prohibition should be classified as matter of [defense] as distinguished from an aspect of the basic definition of the crime"); D. Dripps, "The Constitutional Status of the Reasonable Doubt Rule," 75 Cal.L.Rev. 1665, 1665-66 (1987) ("judicial doctrine ... arbitrarily distinguish[es] elements of the charged offense, which the government must establish beyond a reasonable doubt, from affirmative defenses, which the legislature may require the defendant to prove by a preponderance of the evidence"); J. Jeffries & P. Stephan, "Defenses, Presumptions, and Burden of Proof in the Criminal Law," 88 Yale L.J. 1325, 1331-32 (1979) ("The trouble, of course, is that the distinction is essentially arbitrary ... Traditionally, the only functional difference between a crime and a defense has been precisely the issue under consideration- allocation of the burden of proof ... To make the scope of that doctrine depend on the legislative allocation of the burden of proof is to assume the point in issue and thus to reduce Winship to a circularity" [footnote omitted; internal quotation marks omitted] ).

Before going further, it is necessary to define the term affirmative defense. "An affirmative defense is one that admits the doing of the act charged, but seeks to justify excuse or mitigate it." (Internal quotation marks omitted.) State v. Heinz, 1 Conn.App. 540, 547, 473 A.2d 1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984); State v. Cohen, 568 So.2d 49, 51-52 (Fla. 1990). ("An ‘affirmative defense’ is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, ‘Yes, I did it, but I had a good reason’ ").

3. Various Approaches to Determining Constitutionality

Many lower courts and commentators have attempted to provide a workable test for determining whether a fact is required to be proven by the state beyond a reasonable doubt or whether the state may place the burden of persuasion for that fact on the defendant.

These approaches have been sorted into three categories: expansive proceduralism, restrictive proceduralism, and substantivism. S. Sundby, supra, 40 Hastings L.J. 463. The proceduralist approach, covering the first two categories, is generally concerned only with how a legislature has decided to define a crime. Under this approach, "the reasonable doubt rule does not require a court to assess independently the importance of different facts within the crime’s definition: if facts A, B, and C are each part of the crime’s definition, then all must be proven beyond a reasonable doubt to satisfy due process." Id., 464. The difference between the two categories of proceduralism "centers on how to decide what facts within a legislative scheme are actually part of the crime’s definition, or, in Winship ’s terminology, are necessary to constitute the crime." (Internal quotation marks omitted.) Id. Under "expansive" proceduralism, the reasonable doubt rule would attach to every fact affecting criminal liability. Id., 465. Under this approach, it does not matter whether a particular fact is labeled a defense, a mitigating factor, or an element of the crime. Id. Instead, "the key test would be whether the fact is used by the state to justify a particular criminal sanction." Id. This approach "views the constitutional threshold not as resting on how the state uses the factor- as a defense, a presumption, or as part of the crime’s definition- but on the state’s decision to use the factor as a basis for determining criminal guilt and punishment." Id. Those ascribing to this approach have focused on the question of "whether the issue is so critical to culpability that it would offend the deepest notions of what is fair and right and just to obtain a conviction where a reasonable doubt remains as to that issue ... Clearly, the state must prove a fact necessary to constitute the crime, but inquiry cannot end with the statutory definition of the offense." (Footnotes omitted; internal quotation marks omitted.) Note, supra, 78 Colum.L.Rev. 670. According to others, "[i]f the prosecution contends that a defendant committed rape, not simply assault and battery, it must prove rape. It may not create an offense called rape, define it as assault and battery are now defined, and place the burden of persuasion on a defendant to prove that no rape occurred in order to reduce his conviction to assault and battery. Where degrees of offenses are created based on different act and mens rea requirements, and a claim is made that the defendant is responsible for one degree rather than a lesser degree, the prosecution generally must justify the claim with proof beyond a reasonable doubt. Such proof will justify punishment and the stigma produced by a conviction on the higher offense." S. Saltzburg, supra, 20 Am.Crim.L.Rev. 411. "[T]he fact that a statutory scheme seeks to draw certain lines is prima facie evidence that the jurisdiction regards the differences in criminal activity as significant. Traditional notions of act and mens rea are very useful in identifying the significance of various elements." Id. ; see also D. Dripps, supra, 75 Cal.L.Rev. 1677 ("[T]he legislative classification of exculpatory facts as elemental or defensive corresponds with one substantive factor, and that is legislative deliberation itself"). Thus, under the "expansive" proceduralist approach, the prosecution would bear the burden of persuasion on every fact a legislature has chosen to make relevant to guilt and punishment. This approach also protects against the concerns of the dissenters in Patterson by precluding a legislature "from manipulating a crime’s formal definition to avoid the strictures of the reasonable doubt rule." S. Sundby, supra, 40 Hastings L.J., 467. Unsurprisingly, Mullaney comes closest to endorsing this view. See Mullaney v. Wilbur, supra, 421 U.S. 701-02.

The "restrictive" proceduralist approach, embodied by Patterson, restricts the application of the reasonable doubt rule to only those facts that a legislature elected to call elements. Under this approach, "[a]s long as a state is careful to label a fact a defense or mitigating factor and not an element of the crime, it is virtually free to shift the burden of proof." (Internal quotation marks omitted.) S. Sundby, supra, 40 Hastings L.J., 471. This reasoning- based on strong deference to federalism and separation of power concerns- is "subject to criticism as determining whether the reasonable doubt rule applies based on the formalistic and arbitrary criterion of a fact’s ‘physical location’ within the statute." Id., 474. Patterson requires looking only to a "syntactical analysis removed from any articulated constitutional justification." Id.

The third approach is substantivism. Those subscribing to this approach "[believe] that just because a fact is included within a crime’s definition or is a possible defense does not mean that the fact is ‘necessary’ to constitute the crime charged." Id., 475. Instead, "a fact is ‘necessary’ ... only if its presence or absence is constitutionally required before the state can impose criminal punishment." Id. In other words, despite choosing to include a fact in the definition of a crime, if the state could constitutionally punish that act without proof of the fact, then the fact is not "necessary" to constitute the crime charged. Cf. R. Allen, "Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law- An Examination of the Limits of Legitimate Intervention," 55 Tex.L.Rev. 269, 270-71 (1977) (arguing the need to identify the constitutional interest at stake); J. Jeffries & P. Stephan, supra, 88 Yale L.J. 1346-47 (must define innocence and guilt to determine reasonable doubt rule’s scope). Substantivism’s quarrel with proceduralism is that the latter is overinclusive and punishes legislatures for including more facts in the definition of a crime than are constitutionally necessary. See J. Jeffries & P. Stephan, supra, 88 Yale L.J. 1365-66 ("Winship should be read to assert a constitutional requirement of proof beyond a reasonable doubt of a constitutionally adequate basis for imposing the punishment authorized ... [T]his interpretation of the scope of Winship would serve the essential purpose of the reasonable-doubt requirement in the only meaningful way possible- that is, by explicit recognition of the interaction between a constitutional rule governing the burden of proof and residual legislative authority over the definition of crimes and prescription of punishments"). Proponents of substantivism have argued that jurisprudential oversight of the discretion of legislatures to define crimes and defenses as they see fit should be limited to "that of a constitutional floor for the substantive criminal law, that is, a notion of prerequisites essential for imposing liability along with a required proportionate relationship between the wrong done and the punishment authorized." Id., 1365. Jeffries and Stephan, attempting to make sense of the implications of Winship in light of Mullaney and Patterson, posit an approach whereby the state’s burden under the due process clause is analyzed by interpreting Winship to "require proof beyond a reasonable doubt of a constitutionally adequate basis for the punishment authorized." Id., 1381. According to them, the "issue, in short, is not whether the state has proved with requisite certainty whatever facts it chooses to regard as relevant. The issue, rather, is whether the state has proved beyond a reasonable doubt a just basis for punishment." Id., 1382. The problem with this approach is that the task it assigns to courts is monumental. It would require a court, without any meaningful framework, to determine what exactly is constitutionally required to prove for any particular crime.

As is evident, none of these approaches has any significant overlap, and there is no agreement about a unified theory of approaching the constitutional question. Even shorn of the labels of proceduralism and substantivism, commentators and courts have attempted to theorize a coherent framework for determining whether a fact must be proven by the prosecution or the defense. One commentator suggests the following approach: "First, assume the truth of the affirmative defense asserted. Second, ask whether the defendant nonetheless committed the crime assuming that the prosecution proved all other elements beyond a reasonable doubt. If so, then the prosecution need not prove the absence of the affirmative defense at all, let alone beyond a reasonable doubt. If not, then the reasonable doubt standard should apply to the affirmative defense." (Footnote omitted.) Note, "A Principled Approach to the Standard of Proof for Affirmative Defenses in Criminal Trials," 40 Am.J.Crim.L. 281, 292 (2013). According to Professor LaFave, "the affirmative defense might then be tested by two inquiries: (1) whether the defense is defined in terms of a fact so central to the nature of the offense that, in effect, the prosecution has been freed of the burden to establish that the defendant engaged in conduct with consequences of some gravity; and (2) whether the need for narrowing the issues, coupled with the relative accessibility of evidence to the defendant, justifies calling upon him to put in evidence concerning his defensive claim." 1 W. LaFave, Substantive Criminal Law (3d Ed. 2018) § 3.4(e), p. 292.

Courts that have considered whether a fact is an element or a defense have analyzed several factors. See generally Note, supra, 78 Colum.L.Rev. 655. The traditional rationale for properly classifying a fact as a defense is that the information is uniquely within the knowledge of the defendant. See id., 671 n.118 ("It is often said that where a fact is peculiarly within the knowledge of the accused, the relative burdens- a comparatively insignificant one for the defendant, an onerous one for the prosecution- justify allocating the burden of persuasion to the defendant"). Our courts have relied on this principle to uphold the allocation of the burden of persuasion to defendants in other scenarios. In State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981), overruled in part on other grounds by State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992), our Supreme Court stated that "[i]t is generally recognized that the state bears no initial burden of proof on matters personal to the defendant and peculiarly within his own knowledge." The court found that "[p]lacing upon the defendant the burden of proving the existence of a physical state of being that removes him from the operation of a penal statute is not unusual in this jurisdiction or in others." Id. ; ² see also State v. Savoie, 67 N.J. 439, 463 n.8, 341 A.2d 598 (1975) (stating this rationale for allocation of the burden of production for a mistake defense); State v. Connor, 142 N.C. 700, 704, 55 S.E. 787 (1906) ("the correct rule upon the subject seems to be that, in cases where the subject of such averment relates to the defendant personally, or is peculiarly within his knowledge, the negative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the defendant, as matter of defense; but, on the other hand, if the subject of the averment do not relate personally to the defendant, or be not peculiarly within his knowledge, but either relate personally to the prosecutor, or be peculiarly within his knowledge, or at least be as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative" [internal quotation marks omitted] ); People v. Patterson, 39 N.Y.2d 288, 305, 347 N.E.2d 898, 383 N.Y.S.2d 573 (1976), aff’d, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) ("[t]he placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant’s knowledge or access to the evidence other than his own on the issue" [Breitel, C.J., concurring] ). In fact, this rationale was relied upon by our Supreme Court in the petitioner’s direct appeal. According to that court, our statutory scheme classifying the question of the defendant’s intent or knowledge of the use of a firearm as an affirmative defense "is consistent with other areas wherein the legislature has provided that the state must prove the essential elements of the crime, and has left it to the defendant to mitigate his criminal culpability or sentencing exposure via an affirmative defense, particularly with respect to areas that uniquely are within the defendant’s knowledge." State v. Gonzalez, supra, 300 Conn. 508.

2 See below for further discussion of

It should be noted that there is some criticism of this approach. The Court in Mullaney stated that "although intent is typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the Court has long recognized, justify shifting the burden to him." Mullaney v. Wilbur, supra, 421 U.S. 702, citing Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), a case involving mandatory presumptions, and Leary v. United States, 395 U.S. 6, 45, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Nor, the Court stated, "is the requirement of proving a negative unique in our system of criminal jurisprudence." Mullaney v. Wilbur, supra, 421 U.S. 702; see also D. Dripps, supra, 75 Calif.L.Rev. 1695 ("In a criminal case, the unilateral consequences of a conviction therefore undercut the credibility of the defendant’s testimony. The credibility problem explains why access to evidence cannot justify shifting the burden of proof to a criminal defendant. Although the privilege against self-incrimination or the risk of impeachment with prejudicial prior convictions also distinguish criminal from civil trials, the credibility problem alone provides sufficient reason to reject the access-to-evidence analysis in criminal cases. The defendant has access to evidence about intent, for example, but is the jury likely to believe it?"); Note, supra, 40 Am.J.Crim.L. 294 ("[T]he defendant’s particular knowledge should not, and does not, justify placing the burden on him and lowering the standard for the prosecution. If particular knowledge determined the burden of proof, then defendants should be required to prove, for example, alibis (they have particular knowledge of where they were) or, especially, states of mind (they have particular knowledge of their own thoughts)").

More compelling is the distinction drawn on whether the fact negates an element of the offense or presents additional information that absolves the defendant of criminal liability. Courts, including our court, have observed that "an affirmative defense does not serve to negate an element of the crime which the state must prove in order to convict, but constitutes a separate issue or circumstance on which the defendant is required to carry the burden of persuasion." (Internal quotation marks omitted.) State v. Smith, 148 Conn.App. 684, 706, 86 A.3d 498 (2014), aff’d, 317 Conn. 338, 118 A.3d 49 (2015); United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.), cert. denied, 506 U.S. 964, 113 S.Ct. 436, 121 L.Ed.2d 355 (1992) (observing that "an affirmative defense may not, in operation, negate an element of the crime which the government is required to prove; otherwise, there would be too great a risk that a jury, by placing undue emphasis on the affirmative defense, might presume that the government had already met its burden of proof"); State v. Jaime, 2015 ME 22, ¶29, 111 A.3d 1050 (2015) ("[b]y its nature, an affirmative defense is presented where the elements of the crime are not necessarily contested, but the defendant offers additional facts that may legally absolve him of criminal liability"); Commonwealth v. Grafton, 93 Mass.App.Ct. 717, 720, 107 N.E.3d 1241, further appellate review denied, 480 Mass. 1109, 111 N.E.3d 284 (2018) ("An affirmative defense is defined as a matter which, assuming the charge against the accused to be true, constitutes a defense to it; an affirmative defense does not directly challenge any element of the offense ... Such a defense involves a matter of justification particularly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence" [citations omitted; internal quotation marks omitted] ).

"Mullaney and Patterson both articulate one variation on the procedural due process requirement that the Winship Court found necessary to protect this particular substantive value: despite a State’s characterization of an issue as being an affirmative defense, the State may not place the burden of persuasion on that issue upon the defendant if the truth of the defense would necessarily negate an essential element of the crime charged." (Internal quotation marks omitted.) Holloway v. McElroy, 632 F.2d 605, 624-25 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981), overruled on other grounds by Mason v. Balkcom, 669 F.2d 222 (5th Cir. Unit B 1982).

This theory, too, produces dichotomous results, because under Patterson, the constitutionality of the allocation of burdens of production and persuasion hinge almost entirely on the draftsmanship of legislatures. See Patterson v. New York, supra, 432 U.S. 216 ("[l]egislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence [Powell, dissenting] ). For instance, in Dixon v. United States, 548 U.S. 1, 17, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), the United States Supreme Court rejected the argument that duress must be disproven by the prosecution beyond a reasonable doubt. Dixon argued that she could not have formed the necessary mens rea for the crimes- knowing and willful- because she did not freely choose to engage in the crimes in question." Id., 6. The Court was not convinced, because, even assuming that Dixon’s "will was overborne by the threats made against her and her daughters, she still knew that she was making false statements and knew that she was breaking the law by buying a firearm." (Emphases omitted.) Id., 6. Thus, "[t]he duress defense, like the defense of necessity ... may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself." (Citation omitted.) Id. However, in Connecticut, duress is a defense that must be disproven by the state beyond a reasonable doubt. "Duress ... [is a] recognized [defense] to [a] criminal [charge] because [it] ... implicate[s] the volitional aspect of criminality ... The state’s burden of proof beyond a reasonable doubt encompasses, in an appropriate case, a burden of disproving duress beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Heinemann, 282 Conn. 281, 299, 920 A.2d 278 (2007).

Care must be taken to remember that "[t]he mere overlap between the elements of a crime and the elements of an affirmative defense does not render the law proscribing the criminal conduct unconstitutional." United States v. Corbin, 729 F.Supp.2d 607, 619 (S.D.N.Y. 2010). "[Although] the elements of the crime and of the affirmative defense overlap, in the sense that evidence to prove the latter will often tend to negate the former ... this overlap did not shift to [the defendant] the burden of proof on any element of the crime ... nor did it allow the jury to presume elements of the government’s case." (Citations omitted; internal quotation marks omitted.) United States v. Thompson, 76 F.3d 442, 453 (2d Cir. 1996).

Additionally, our court has recognized that it "is the general rule that where exceptions to a prohibition in a criminal statute are situated separately from the enacting clause, the exceptions are to be proven by the defense." State v. Tinsley, 181 Conn. 388, 402, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), overruled on other grounds by State v. Pinnock, 220 Conn. 765, 601 A.2d 521 (1992). When the "matters which the defendant claims must be proven by the state are not only contained in a separate sentence of the statute, but also form no part of the statute’s enacting or prohibiting clause [t]hey are not descriptive negatives defining the corpus delicti but are exceptions, and they do not form any essential elements of the crime charged." Id., 403.

Another consideration is whether the allocation of a fact as an affirmative defense infringes on other rights of the defendant. "It would be an abuse of affirmative defenses, as it would be of presumptions in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime. Indeed, a by-product of such abuse might well be also to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf." People v. Patterson, supra, 39 N.Y.2d 305 (Breitel, C.J., concurring); State v. Burrow, 293 Or. 691, 706-07, 653 P.2d 226 (1982) (Linde, J. dissenting).

Finally, "[a]nother factor to be considered in allocating the burden of proof is the importance of the fact at issue to the degree of defendant’s culpability. The more critical the fact is to the concept of culpability, the more consistent it is with fundamental notions of fairness to require the State to bear the burden of proof." State v. Flaherty, 55 N.C.App. 14, 21-22, 284 S.E.2d 565 (1981).

The court now discusses what the prosecution in Connecticut must currently prove in order to convict a defendant as an accessory to manslaughter in the first degree with a firearm.

4. Accessorial Liability in Connecticut

The statutory provision governing accessorial liability is § 53a-8(a), which provides that "[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." In Connecticut, a conviction under § 53a-8 requires proof of a dual intent, i.e., "that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged." (Emphases omitted.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); see also State v. Gonzalez, supra, 300 Conn. 499-500. "Additionally, one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it." (Internal quotation marks omitted.) State v. Gonzalez, supra, 500. Thus, under § 53a-8, "accessorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed ..." (Internal quotation marks omitted.) Id. In the petitioner’s direct appeal in the present case, our Supreme Court approved of State v. Miller, 95 Conn.App. 362, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006). See State v. Gonzalez, supra, 509-10. In Miller, our Appellate Court had decided that our statutory scheme did not require the state to prove that an accessory intended for the principal to use a firearm in order to secure a conviction for manslaughter in the first degree with a firearm. State v. Miller, supra, 375-77. Reviewing our case law, the court in Miller concluded that the use of a firearm is an "aggravating circumstance that does not require proof of any particular mental state." Id., 375. When a statute, as here, provides for no particular mental state attached to an act, the "element is one of general intent, requiring only that the perpetrator act volitionally in some way to use, possess or threaten to use a firearm in the commission of the offense." State v. Gonzalez, supra, 502. "That the [perpetrator] intend[s] to perform the physical acts that constitute the crime ... in the manner proved by the evidence [i]s implicitly a part of the state’s burden of proof and, in that sense, an element of the crime." State v. Pierson, 201 Conn. 211, 216-17, 514 A.2d 724 (1986). The trial court is not, however, required to instruct the jury that "a criminal act must be volitional" or that the defendant must have the "general intent to do a criminal act" unless there is evidence at trial that suggests that "the defendant’s conduct was involuntary." Id., 217-18.

Our Supreme Court noted an ambiguity in this statutory interpretation, however, when the proof of the perpetrator’s volitional use of a firearm was to be considered in conjunction with an accessory’s state of mind. State v. Gonzalez, supra, 300 Conn. 503. Reviewing our case law on accessorial liability, the court concluded that our cases routinely have not required the state to prove that the accessory had specific intent where the perpetrator’s use of a firearm required only general intent. Id., 503-08. In State v. McCalpine, 190 Conn. 822, 463 A.2d 545 (1983), our Supreme Court held that "[t]o establish the guilt of an accused as an accessory for aiding and abetting the criminal act of another, the state must prove criminality of intent and community of unlawful purpose," and "[t]he mental state of an aider and abettor incorporated in § 53a-8 does not require that the accused know of or endorse every act of his coparticipant in crime." Id., 832. Thus, there is "no requirement that the accessory possess the intent to commit the specific degree of the robbery charged or the intent to possess a deadly weapon." Id., 833.

Justice Shea concurred in the judgment in McCalpine but disagreed with the majority’s formulation of the accessorial intent requirement. Id. According to him, the majority’s determination appeared to water down the principles that the accessory must have intended to aid the principal and in so aiding, intended to commit the offense with which he is charged. "The fact that no specific intent is made an element of the crimes for which the defendants were convicted ... does not remove the necessity for proof of a general intent to perform the acts which constitute the offense Unless it was the conscious objective of each defendant that he or another participant perform all of the acts necessary to constitute the particular crime, he would not be guilty of it. This requirement must extend to those acts which enhance the degree of the crime as well as to those which constitute the basic crime itself. Otherwise an accomplice might be convicted of an offense although he did not entertain the same mental state required by statute for conviction of the principal." (Citations omitted; internal quotation marks omitted.) Id., 834 (Shea, J., concurring).

It remains good law in Connecticut that the "accessory statute’s requirement that the defendant act with the mental state required for commission of an offense drops out of the calculation when the aggravating circumstance does not require proof of any particular mental state." (Internal quotation marks omitted.) State v. Gonzalez, supra, 300 Conn. 505. Despite reaffirming that generalization, however, the court in Gonzalez acknowledged that McCalpine has been criticized for its broad scope, and its impact has been limited in cases where the substantive offense requires proof of a particular mental state. Id., 505 n.8. For instance, in State v. Foster, 202 Conn. 520, 522 A.2d 277 (1987), our Supreme Court revisited the issue of accessorial intent in the context of a sufficiency of evidence challenge. Id., 534-36. In that context, without expressly overruling McCalpine, the court held that "accessorial liability is predicated upon the actor’s state of mind at the time of his actions, and whether that state of mind is commensurate to the state of mind required for the commission of the offense." Id., 532. In Foster, the defendant argued that he could not be convicted as an accessory to criminally negligent homicide, because that crime requires an unintended result. Id., 527. The court disagreed, noting that accessorial liability is not another crime, but merely another way of committing the substantive crime. Id., 528. "Contrary to the defendant’s assertions, and unlike attempt or conspiratorial liability, accessorial liability does not require that a defendant act with the conscious objective to cause the result described by a statute." Id., 529. Acknowledging that the court has repeatedly "stated that the defendant, in intentionally aiding another, must have the intent to commit the substantive offense"; id. ; the court distinguished those cases because they involved crimes "that require a defendant to act with a specific intent to commit the crime." Id., 529-30. In those cases, because "the substantive crime with which the person was charged ... required that the accessory specifically intend to act or bring about a result, it is logical to state that the accessory, in aiding another, must have intend[ed] to commit the offense with which he is charged." (Internal quotation marks omitted.) Id., 530.

The court made clear, however, that § 53a-8 is "not limited to cases where the substantive crime requires the specific intent to bring about a result." Id. "This interpretation is consistent with the underlying principles of accessorial liability. Such liability is designed to punish one who intentionally aids another in the commission of a crime and not one whose innocent acts in fact aid one who commits an offense." Id., 531. Thus, accessorial liability "is predicated upon the actor’s state of mind at the time of his actions, and whether that state of mind is commensurate to the state of mind required for the commission of the offense. If a person, in intentionally aiding another, acts with the mental culpability required for the commission of a crime- be it intentional or criminally negligent- he is liable for the commission of that crime." (Internal quotation marks omitted.) Id., 532.

Connecticut’s approach is the same as that of the Model Penal Code, which provides that "complicity in conduct causing a particular criminal result entails accountability for that result so long as the accomplice is personally culpable with respect to the result to the extent demanded by the definition of the crime. Thus, if the accomplice recklessly endangers life by rendering assistance to another, he can be convicted of manslaughter if a death results, even though the principal actor’s liability is at a different level. In effect, therefore, the homicidal act is attributed to both participants, with the liability of each measured by his own degree of culpability toward the result." Model Penal Code § 2.06, comment 7; State v. Foster, supra, 533-34 n.14.

Likewise, in State v. Crosswell, 223 Conn. 243, 612 A.2d 1174 (1992), which was also a challenge to the sufficiency of the evidence, id., 244-45, our Supreme Court characterized the language in McCalpine - that the accessory is not required to know of or endorse every act of his co-participant- as dicta. Id., 258. Croswell also disapproved of the language in McCalpine that "the accessory was not required to possess the intent to commit the specific degree of the crime charged." (Internal quotation marks omitted.) Id. Croswell noted that these comments were dicta because the elements at issue in McCalpine did not require specific intent. Id. ; id., 258 n.11.

The court in Croswell, then, made clear that our accessorial intent jurisprudence requires the state to prove that the accessory had specific intent when the substantive offense requires that the state prove that the principal had specific intent. Id., 260-61. The court in Croswell did not overrule or call into question the holding of McCalpine that when a firearm clause in a statute only requires proof of general intent, the state does not have to prove that the accessory have the specific intent that the firearm be used. "Nothing in [Foster ] ... however, conflicts with the holding in [McCalpine ] ... that when a defendant is charged with robbery in the first degree on the basis that he or another participant in the crime ... is armed with a deadly weapon; General Statutes § 53a-134(a)(2); ... the defendant need not be proven to have intended to possess a deadly weapon. The concurrence in McCalpine also disagreed with that proposition, but it has not been questioned in any decision by this court." (Citations omitted; internal quotation marks omitted.) Id., 261, n.14.

Finally, in the petitioner’s direct appeal in the present case, our Supreme Court also rejected his contention that the state was required to prove his specific intent on the use of the firearm because it was "inconsistent with the affirmative defense provided by § 53a-16b." State v. Gonzalez, supra, 300 Conn. 508. The court concluded that the affirmative defense statute "is consistent with other areas wherein the legislature has provided that the state must prove the essential elements of the crime, and has left it to the defendant to mitigate his criminal culpability or sentencing exposure via an affirmative defense, particularly with respect to areas that uniquely are within the defendant’s knowledge." Id. ³

3 See discussion below. ---------

Also instructive to this analysis are our Supreme Court’s decisions in State v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), and State v. Flemke, 315 Conn. 500, 108 A.3d 1073 (2015). In Pond, our Supreme Court considered whether the state must prove that a coconspirator intended for a firearm to be used. State v. Pond, supra, 453. Engaging in statutory interpretation of our conspiracy statute, the court concluded that the language of that statute required proof beyond a reasonable doubt that the coconspirator intended for the specific act that forms the basis of the charge to be committed. Id., 466-81. This is because conspiracy is a specific intent crime. Id., 467. In order to violate § 53a-48(a), the state must prove that a person "when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." Section 53a-48(a). Thus, to establish a violation of § 53a-48(a), "the state must prove that three essential elements are satisfied: (1) the accused intended that conduct constituting a crime would be performed; (2) the accused formed an agreement with one or more persons to engage in such conduct; and (3) any one of the coconspirators performed some overt act in furtherance of the conspiracy." State v. Pond, supra, 315 Conn. 467. "Conspiracy, then, is a specific intent crime, with the intent divided into two elements: [1] the intent to agree or conspire and [2] the intent to commit the offense which is the object of the conspiracy." (Internal quotation marks omitted.) Id., 467-68.

The court further buttressed its conclusion by comparing the language of the conspiracy statute to that of the accessory statute, noting that the difference between the two must be presumed to be intentional. Id., 469-70. Thus, while the legislature intended for the intent requirement for accessory to mirror that of the object offense, it did not intend for that to be the case for conspiracy. Id. The court reasoned that "the legislature has made a reasonable determination that, if an individual willingly participates in a robbery or attempted robbery, during which one of the perpetrators actually threatens the use of deadly force, that individual should be held criminally liable for the increased risk that injury or death will result, even if he did not specifically intend for the threat to be made. It makes little sense, however, to say that, if an individual plans and agrees to participate in a simple, unarmed robbery, he then may be held criminally liable for planning or agreeing to an armed robbery, or one in which a purported weapon is displayed or its use threatened, when he had no such intention and agreed to no such plan." (Emphases omitted.) Id., 476-77.

In State v. Flemke, supra, 315 Conn. 503, decided the same day as Pond, our Supreme Court was asked to hold that the firearm sentence enhancement statute, General Statutes § 53-202k, does not apply to unarmed accomplices, or, in the alternative, that the applicability of that sentence enhancement provision is limited to those accomplices who intended that a firearm be used in the commission of the underlying offense. In rejecting the defendant’s invitation, the court reaffirmed its prior holding in State v. Davis, 255 Conn. 782, 772 A.2d 559 (2001). State v. Flemke, supra, 315 Conn. 506. In Davis, our Supreme Court rejected Davis’ argument that the plain language of § 53-202k did not include the accessorial liability language and thus should be limited to applying only to principals. State v. Davis, supra, 787, 789. The court noted that Davis was "attempting to draw a distinction between principal and accessorial liability. Such a differentiation, however, misconstrues the nature of accessorial liability. This court has long since abandoned any practical distinction between the terms ‘accessory’ and ‘principal’ for the purpose of determining criminal liability ... Instead, ‘[t]he modern approach is to abandon completely the old common-law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime.’ ... The legislature adopted this view and expressed it in ... § 53a-8(a). Accordingly, ‘accessorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed ...’ " State v. Flemke, supra, 508, quoting State v. Davis, supra, 789-90.

The court in Flemke also rejected the defendant’s argument that § 53-202k "requires the state to prove that an unarmed accomplice intended that another participant in the offense would use a firearm in the commission of the offense ..." State v. Flemke, supra, 315 Conn. 515-16. This was because the defendant, as an accessory, was legally indistinguishable from the principal. Id., 516. The court reaffirmed the principle that "the state was required to prove only that the defendant was guilty of being an accessory to the underlying robbery and that a firearm was used in the commission of the robbery; the state was not required to also prove that the defendant intended that a firearm would be used during the robbery." Id.

5. Affirmative Defenses and the Burden of Persuasion

Although our Supreme Court has not considered the constitutionality of § 53a-16b in the context in which it is presented to this court, it has done so in regards to a different statute, while applying the same constitutional principles. In State v. Ray, 290 Conn. 602, 966 A.2d 148 (2009), our Supreme Court considered whether the affirmative defense of drug dependency to a charge pursuant to General Statutes § 21a-278(b) was constitutional. State v. Ray, supra, 616. Previously in Connecticut, the defendant bore the burden of production as to the defense of drug dependency. State v. Januszewski, supra, 182 Conn. 166. Once this was introduced into the case, the burden to prove lack of drug dependency shifted to the state "as it does in all other essential elements in the case, to prove beyond a reasonable doubt that the accused was not entitled to the benefit of [the] excuse, proviso or exemption claimed by him." (Internal quotation marks omitted.) Id., 169. Subsequently, in State v. Hart, supra, 221 Conn. 595, our Supreme Court altered course and determined that, pursuant to Januszewski, the absence of drug dependency was not an element but an exception to liability, and, thus, the burden rested on the defendant to prove drug dependency by a preponderance of the evidence. Id., 608. The court also rejected the defendant’s argument that this construction relieved the state of proving all of the elements of the offense. See id., 611. Relying on McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), overruled on other grounds by Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Patterson v. New York, supra, 432 U.S. 210, the court held that "[t]he federal due process clause does not bar state legislatures from placing the burden on a defendant to prove an affirmative defense or to prove that he or she falls within an exemption to liability for an offense." State v. Hart, supra, 611. In Ray, the court was again presented with the same arguments. State v. Ray, supra, 613. Noting that if the court "w[as] writing on a blank slate, [it] might find persuasive the defendant’s argument," id., 614, it, nonetheless, concluded that it was bound by stare decisis to affirm Hart, in which the exact arguments had been presented and rejected only sixteen years prior. See id.

The court in Ray then considered the defendant’s alternative argument: that the fifth and sixth amendments, as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), rendered our statutory scheme in this regard unconstitutional. See State v. Ray, supra, 290 Conn. 616-17. In Apprendi, the Court held that both the due process clause and the sixth amendment require that any fact "that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." (Internal quotation marks omitted.) Apprendi v. New Jersey, supra, 476. The New jersey scheme, which allowed for an enhanced sentence after a finding by a preponderance of the evidence by a trial judge, was, thus, unconstitutional. Id., 490-92. Ray argued that the same applied to our statutory scheme requiring the defendant to prove drug dependency. State v. Ray, supra, 617. Our Supreme Court disagreed, id., 618, noting that nothing in Apprendi was inconsistent with the holding of Patterson, id., 622, which permitted states to place the burden of persuasion for affirmative defenses on the defendant. Id., 618-19. The court concluded that Apprendi was concerned with increasing punishment beyond the maximum prescribed for the offense. See id., 623, 623 n.15. It relied on McMillan v. Pennsylvania, supra, 477 U.S. 79; cf. State v. Ray, supra, 622-23; a case in which the United States Supreme Court affirmed the constitutionality of a Pennsylvania statute that provided for a mandatory minimum sentence if the sentencing judge found, by a preponderance of the evidence, that the defendant visibly possessed a firearm. McMillan v. Pennsylvania, supra, 79-80, 93. The Court found no issue with that statutory scheme because it "created no presumption against the defendant and did not relieve the prosecution of its burden of proving that the defendant was guilty of the underlying crime." State v. Ray, supra, 621. In addition, the statute "neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty ..." McMillan v. Pennsylvania, supra, 87-88. McMillan, of course, has been overruled by Alleyne v. United States, supra, 570 U.S. 99, discussed below.

Thus, our Supreme Court reconciled the various strands of United States Supreme Court jurisprudence as follows:

Having reviewed these cases, it is apparent to us that Apprendi did not change the constitutional landscape and that the holdings of Mullaney, Patterson, McMillan and Apprendi can be readily reconciled. First, under Mullaney, if a state chooses to treat a fact as an element of an offense, the state must prove that fact beyond a reasonable doubt, even if the state constitutionally could have treated the fact as an affirmative defense ... Second, under Patterson, if a state chooses to recognize a mitigating circumstance as an affirmative defense, it is not required to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate ... There are, however, constitutional limits beyond which the [s]tates may not go in this regard ... For example, a state constitutionally could not treat the fact that the defendant did not commit any of the conduct of which he is accused as an affirmative defense ... Third, under McMillan, a fact that exposes the defendant to a mandatory minimum sentence within the range allowed by the jury’s verdict need not be found by the jury beyond a reasonable doubt ... Fourth, under Apprendi, if a fact allows the sentencing court to impose a punishment exceeding the range authorized by the jury’s verdict, that fact has the character of an element despite its label as a sentence enhancement.

(Citations omitted; emphases omitted; footnote omitted; internal quotation marks omitted.) State v. Ray, supra, 290 Conn. 622-23.

The court in Ray reaffirmed our jurisprudence that the lack of drug dependency is not an aggravating factor in our statutory scheme; rather, drug dependency is a mitigating factor that reduces the maximum punishment for the same offense. "In other words, it is not the absence of drug dependency that increases the range of punishment to which the accused is exposed under [General Statutes] § 21a-277(a), but rather, it is the presence of drug dependency that decreases the range of punishment to which the accused is exposed under § 21a-278(b)." Id., 625.

Subsequently, the United States Supreme Court overruled McMillan in Alleyne v. United States, supra, 570 U.S. 99. In Alleyne, the Court was confronted with judicial fact finding that increased the mandatory minimum punishment for a crime. See id., 104. The Court held that approval of such a scheme was inconsistent with Apprendi and the sixth amendment, because "[a]ny fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt ... Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an element that must be submitted to the jury." (Citation omitted; internal quotation marks omitted.) Id., 103. It continued, holding that the "essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt." Id., 115-16.

In State v. Evans, 329 Conn. 770, 189 A.3d 1184 (2018), cert. denied, 139 S.Ct. 1304, 203 L.Ed.2d 425 (2019), our Supreme Court was once again faced with a challenge to our statutory scheme that classified drug dependency as an affirmative defense, this time in light of Alleyne. Id., 772-73. Rejecting once again the defendant’s arguments, our Supreme Court deemed it "significant that Alleyne, like Apprendi, on which Alleyne is based, accords with Patterson v. New York, supra, 432 U.S. 197, insofar as it does not preclude states from utilizing affirmative defenses to mitigate or eliminate criminal liability." State v. Evans, supra, 800. The court then went on to reject the defendant’s argument that drug dependency should be an element of the statute, as opposed to an affirmative defense. Id., 808.

6. Discussion

The petitioner’s claim, simply put, is this: in order to convict an individual of the offense of manslaughter in the first degree with a firearm, in violation of § 53a-55a, the state must prove that (1) with the intent to cause serious physical injury to another person, the individual causes the death of such person or of a third person; and (2) in the commission of such offense, the individual uses a firearm. In order to convict an individual as an accessory to someone else committing manslaughter in the first degree with a firearm, the state must prove that the individual intended to cause serious physical injury and intended to aid the principal to do so. The hiccup, according to the petitioner, is that in cases where the manslaughter is committed using a firearm, there is no requirement that the accessory know that the principal was armed with, or intended to use a firearm, and more importantly, there is no requirement to prove that the accessory intended for a firearm to be used or even that the accessory was aware that the principal was armed.

Thus, the simple question is: who is required to prove that a defendant did not know that the principal was armed and did not intend for a firearm to be used in the commission of a manslaughter? The petitioner argues that the due process clause requires the state to prove beyond a reasonable doubt that he knew of or intended the use of the firearm; the respondent argues that the burden rests with the petitioner.

As discussed above, in order to be found guilty as an accessory, the accessory "must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it." (Internal quotation marks omitted.) State v. Heinemann, supra, 282 Conn. 313. As far as the mental state, the prosecution is required to prove that the principal "acted volitionally to use, possess or threaten to use a firearm in the commission of the offense, with no obligation to prove any mental state beyond that required by the underlying manslaughter statute." State v. Gonzalez, supra, 300 Conn. 503. The mental state attached to the principal’s use of the weapon is one of general intent. Id., 502. The prosecution must prove that the principal, in using the firearm to commit manslaughter, intended to use the firearm to commit manslaughter. See id., 502-03, 502 n.14. This, of course, presents a problem for the accessory. Cf. id., 503 ("Ambiguity emerges, however, as we determine the additional elements of accessorial liability under § 53a-8 for violations of § 53a-55a"). As far as the principal is concerned, the volition of that act is self-evident. If the principal used a firearm in the commission of the offense, naturally he intended to do so. The same cannot be said of another participant who does not possess the weapon. Thus, the accessory is responsible for the actions of another, and treated as if he committed the substantive act himself without a showing by the state that the accessory also intended that the act be committed. Thus, the argument goes, if there is no such thing as a separate crime of being an accessory and an accessory is merely another way of committing the same crime, then should the state not have to prove that the accessory also had the intent to commit the act that is the use of the firearm? In other words, if being an accessory is truly not an offense and an accessory is just as culpable and liable as the principal and stands in the principal’s stead, then must not the state similarly prove the accessory’s intent just as it must prove the general intent of the principal to use the firearm?

It is hard to argue with the petitioner’s contention that in light of Winship, Mullaney, Apprendi, Alleyne, and Pond, the state should be required to prove to a jury beyond a reasonable doubt that he intended that a firearm be used in the commission of the offense, in light of the fact that a conviction of manslaughter with a firearm doubles the maximum sentence he could receive. This factor- the intent that a firearm be used- can be said to be one that "makes a substantial difference in punishment and stigma"; Patterson v. New York, supra, 432 U.S. 226 (Powell, J., dissenting); and touches upon the core principle that criminal law "is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability"; Mullaney v. Wilbur, supra, 421 U.S. 697-98; thereby requiring the state to prove it beyond a reasonable doubt. In simpler terms, if the state wishes to expose a defendant to a higher penalty based on the fact that the principal used a firearm to take the life of an individual, then it should have to prove that the accessory also intended that the principal use a firearm. In other words, the state should be prohibited from convicting and sentencing a defendant to a harsher sentence for a greater crime, without first proving beyond a reasonable doubt that the defendant intended for that greater crime to be committed. In a related but different context, our Supreme Court affirmed this rationale in Pond . See State v. Pond, supra, 315 Conn. 478-79. This logic finds support in commentary as well. See discussion, supra . One can argue that the just basis for punishing the petitioner in a harsher manner is that his conduct contemplated the use of a firearm. If he did not so intend, then there is no just basis for punishing him more harshly than one who did not use a firearm. Another consideration is whether the allocation of a fact as an affirmative defense infringes on other rights of the defendant. Requiring the defendant to prove that he did not intend that a firearm be used would serve to "unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime ... [and] also to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf." People v. Patterson, supra, 39 N.Y.2d 305 (Breitel, C.J., concurring).

On the other hand, the petitioner has provided no authority for the proposition that a legislature is barred by the due process clause from writing into an offense an element that does not require a specific intent or indeed any intent as to an accomplice. Indeed, the elements of manslaughter with a firearm do require the state to prove beyond a reasonable doubt that a firearm was used in the commission of the offense and that the principal committed a volitional act- general intent- in using or displaying that firearm. As written, the fact of the accessory’s lack of intent does not negate the fact that a firearm was used in the commission of the offense, but provides a reason why the accessory should not be treated equally culpably: he simply did not know that the principal was armed and would use a firearm. The intent of an accessory is something that is uniquely within the knowledge of that individual, and no reason has been provided why the constitution mandates that this intent requirement be part of the elements of a crime that has to be proved by the state. As discussed above, our Supreme Court and other courts across the country have upheld statutes allocating the burden of persuasion to the defendant where "the facts referred to in the exception or proviso related to the defendant personally, or were peculiarly within his knowledge." State v. Connor, supra, 142 N.C. 704-05; State v. Gonzalez, supra, 300 Conn. 508; People v. Patterson, supra, 39 N.Y.2d 305 ("[t]he placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant’s knowledge or access to the evidence other than his own on the issue." [Breitel, C.J., concurring] ).

To be sure, treatment of this intent requirement in regards to accomplice liability is not uniform across other jurisdictions. Some jurisdictions require the state to prove that the perpetrator intended that a firearm be used, while others do not. In Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), the United States Supreme Court held that for the prosecution to convict an individual of being an accessory to the "double-barreled" crime of using or carrying a firearm "during and in relation to any crime of violence or drug trafficking crime" under 18 U.S.C. § 924(c), it must prove beyond a reasonable doubt "that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission." Id., 67. But see Whitaker v. State, 199 A.3d 1021, 1029 (R.I. 2019) (rejecting the application of Rosemond because it "plows no new constitutional ground and applies only to 18 U.S.C. § 924(c) and the federal aiding-and-abetting statute [and] has no impact on state law"); Hicks v. State, 295 Ga. 268, 273 n.3, 759 S.E.2d 509 (2014), cert. denied, 574 U.S. 1171, 135 S.Ct. 1436, 191 L.Ed.2d 393 (2015) (noting, in a case involving Georgia’s conspiracy statute, that Rosemond "arose under federal law and thus does not control here"); State v. Ward, 473 S.W.3d 686, 693 (Mo.App.W.D. 2015) (Rosemond ’s holding does not rest on any constitutional requirement nor does it have any application to state criminal laws on accomplice liability).

Jurisdictions that require proof that the accessory knew that the principal was armed seem to outnumber those that do not so require. See Robinson v. United States, 100 A.3d 95, 106-08 (D.C. 2014), 135 S.Ct. 1882, 191 L.Ed.2d 752 (2015) ("Actual knowledge of the weapon is required ... We perforce hold that the trial court in the present case erred by instructing the jury, in response to its inquiries, that a defendant could be convicted of second-degree burglary while armed as an aider and abettor if she had reason to know the principal perpetrator of that crime was armed." [footnotes omitted] ); State v. Henderson, 908 N.W.2d 868, 876 (Iowa 2018) (In the "context of a first-degree robbery prosecution under the dangerous weapon alternative, the State must prove the alleged aider and abettor had knowledge that a dangerous weapon would be or was being used ... Otherwise, the aider and abettor may have knowledge or intent to commit a robbery, but not first-degree robbery" [citation omitted; emphases omitted] ); Hemphill v. State, 242 Ga.App. 751, 751, 753, 531 S.E.2d 150 (2000) (approving a pattern jury instruction requiring "that the defendant had knowledge that the crime of armed robbery was being committed" and noting that the defendant- who was the driver- "knew that his accomplices had guns"); Commonwealth v. Brown, 477 Mass. 805, 812, 81 N.E.3d 1173 (2017), 139 S.Ct. 54, 202 L.Ed.2d 41 (2018) ("[i]n this case, where the predicate felonies were attempted armed robbery and armed home invasion, the Commonwealth also was required to prove that the defendant knew that one of his accomplices possessed a firearm"); Brooks v. State, 124 Nev. 203, 210, 180 P.3d 657 (2008) ("we conclude that an unarmed offender uses a deadly weapon and therefore is subject to a sentence enhancement when the unarmed offender is liable as a principal for the offense that is sought to be enhanced, another principal to the offense is armed with and uses a deadly weapon in the commission of the offense, and the unarmed offender had knowledge of the use of the deadly weapon" [footnote omitted; internal quotation marks omitted] ); State v. Bohannan, 206 N.J.Super. 646, 650, 503 A.2d 396 (1986) ("an accomplice will be guilty of armed robbery, regardless of whether he actually possessed or used a weapon, only where he had the purpose to promote or facilitate an armed robbery"); Wyatt v. State, 367 S.W.3d 337, 341 (Tex.App.), discretionary review dismissed, Docket No. PD-0885-12, 2012 Tex.Crim.App. LEXIS 1562 (2012) ("[w]e agree with appellant that even if the jury believed that appellant participated in the robbery by serving as [the principal actor]’s getaway driver and sharing in the proceeds of the robbery, the record contains no evidence that appellant ever was aware that the firearm would be, was being, or had been used or exhibited during the offense" [internal quotation marks omitted] ).

But see People v. Gomez, 87 App.Div.2d 829, 829, 449 N.Y.S.2d 10, criminal leave to appeal denied, 56 N.Y.2d 811, 437 N.E.2d 1166, 452 N.Y.S.2d 1031 (1982) (rejecting "defendant’s contention that the People must prove beyond a reasonable doubt that a defendant has prior knowledge that his accomplices were armed with deadly weapons as an element of the offense of burglary in the second degree"); People v. Young, 114 Mich.App. 61, 65 318 N.W.2d 606 (1982) (determining it was not necessary that "the defendant knew that [the principal] was armed" but only that "the defendant knowingly aided and abetted in the commission of the robbery and that carrying or using a weapon to commit the robbery was fairly within the scope of the common unlawful enterprise"); State v. Ward, supra, 473 S.W.3d 692 (under Missouri law, a defendant may be convicted under the theory of accomplice liability for first-degree robbery if the use of a firearm could be "reasonably anticipated"); State v. Ivy, 119 Wis.2d 591, 596, 350 N.W.2d. 622 (1984) ("[D]epending on the facts and circumstances of a given case, an armed robbery can be a natural and probable consequence of a robbery. Therefore, if an armed robbery is found to be a natural and probable consequence of a robbery, the aider and abettor need not have had actual knowledge that the principals would be armed with a dangerous weapon"); Sarausad v. State, 109 Wn.App. 824, 836, 39 P.3d 308 (2001) ("[T]he law of accomplice liability ... requires the State to prove that an accused who is charged as an accomplice with murder in the first degree, second degree or manslaughter knew generally that he was facilitating a homicide, but need not have known that the principal had the kind of culpability required for any particular degree of murder. Likewise, an accused who is charged with assault in the first or second degree as an accomplice must have known generally that he was facilitating an assault, even if only a simple, misdemeanor-level assault, and need not have known that the principal was going to use deadly force or that the principal was armed").

If this court "w[as] writing on a blank slate"; State v. Ray, supra, 290 Conn. 614; it might be inclined to agree with the petitioner. This court is not, however, writing on the proverbial blank slate. Patterson remains good law, and our Supreme Court has repeatedly held that the accomplice’s intent that a firearm be used in the commission of a substantive offense is not an element of the offense. Indeed, our Supreme Court has done so in the petitioner’s own case. Our Supreme Court has further repeatedly reaffirmed the principle that making a mitigating factor an affirmative defense does not run afoul of United States Supreme Court case law. Understanding that the precise issue raised by the petitioner appears not to have been explicitly decided by our Supreme Court, this court concludes that, in effect, that court has determined the issue adversely to the petitioner. This court cannot hold otherwise. Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010).

CONCLUSION

Thus, the court concludes that the petitioner has not shown how our statutory scheme violates the due process clause by impermissibly shifting the burden of an essential element to the defense and has failed in his burden of proving ineffective assistance of counsel. Judgment shall enter denying the petition for a writ of habeas corpus.

Januszewski.