State v. Deleon

Berdon, J.,

dissenting. I agree that it is within the discretion of the trial court to determine whether the order of closing argument should be varied. Nevertheless, under the facts of this case, I believe that the trial court abused its discretion by not allowing the defendant to open and close final argument.

Just recently, Justice Glass, writing for a unanimous court, emphasized the importance of closing argument. “Closing argument is an integral part of any criminal trial, for it is in this phase that the issues are sharpened and clarified for the jury and each party may present his theory of the case.” State v. Arline, 223 Conn. 52, 63, 612 A.2d 755 (1992). Indeed, the United States Supreme Court has underscored the importance of clos*371ing argument by holding that a meaningful opportunity for it is part of the fundamental right to assistance of counsel. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). “There can be no doubt that closing argument for the defense is a basic element of the adversary fact-finding process in a criminal trial.” Id., 858. The court reasoned: “It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. See In re Winship, [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)].” Herring v. New York, supra, 862.

It is true, as the majority states, that while the defendant admitted that he had committed the robbery element of General Statutes § 53a-54c, the felony murder statute, he did not admit that one of his accomplices in the robbery had caused the death of the victim. There was, however, no dispute that the death of the victim had been caused during the course of the robbery committed by the defendant. After the defendant pleaded guilty during his jury trial, the only issue in dispute was whether he was entitled to an affirmative defense under § 53a-54c.1 The burden of proof for the affirmative defense was clearly on the defendant.

*372Indeed, counsel for the defendant made this crystal clear when he admitted, in summation, the following: “Essentially, and Mr. Thomas [the prosecutor] is correct, he’s made out his case. Reasonable doubt. He’s made it out. And I’m not going to stand here and tell you he hasn’t. The burden is on me to show you by a preponderance of evidence—and that’s my standard and we’ll talk about that in a moment—that Eddy Deleon did not murder because the statute has an affirmative defense in it.”

Under these circumstances, I believe that the trial court abused its discretion.2 The defendant had the burden of proof on the only viable issue the jury had to decide. The majority’s attempt to dissociate themselves from the trial court’s ruling by stating that the issue “is not whether we would reach the same conclusion in the exercise of our own judgment” does not make it fair or just. We do not deal with trivia in this matter—the defendant, on the felony murder count, was sentenced to a term of imprisonment of sixty years.

Accordingly, I respectfully dissent.

General Statutes § 53a-54c provides in relevant part: “[I]t shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and *372(D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

Although the defendant did not request that he be granted the right to argue on surrebuttal, the trial court could have considered this as an alternative accommodation. Indeed, whenever the defendant bears the burden of proving an affirmative defense, reason and justice require that he be allowed surrebuttal argument limited to the affirmative defense without regard as to whether he or she has admitted to the other elements of the crime.