consent instruction in Connecticut

2012Whether or not [the victim] consented to the sexual intercourse is a question of fact which you must determine from all the circumstances which have been proven to you.” 6 The petitioner asserts that Caine should have requested a consent instruction pursuant to State v. Smith, 210 Conn. 132 , 554 A.2d 713 (1989) QlSmith instruction”), that “the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that the victim had consented,” and he contends that Caine’s failure to do so constituted ineffective assistance.

2012Whether or not [the victim] consented to the sexual intercourse is a question of fact which you must determine from all the circumstances which have been proven to you.” 6 The petitioner asserts that Caine should have requested a consent instruction pursuant to State v. Smith, 210 Conn. 132 , 554 A.2d 713 (1989) QlSmith instruction”), that “the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that the victim had consented,” and he contends that Caine’s failure to do so constituted ineffective assistance.

2019Trial counsel's concession of guilt violated Petitioner's right to plead not guilty, to testify, to have the state prove him guilty beyond a reasonable doubt, and effectively denied him the right to assistance of counsel in his chosen plea of not guilty." (Emphasis added.) Specifically, the petitioner's posttrial brief contains the following statement: "The Petitioner, through counsel, amended the Petition on or around November 7, 2016, raising a claim of ineffective assistance against trial counsel for conceding guilt without the Petitioner's consent in violation of his rights under the Fifth

2012We conclude that the court properly denied the motion in reliance on the consent exception to the warrant requirement. “[0]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [or seizure] that is conducted pursuant to consent.” (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 699 , 817 A.2d 76 (2003).

2012We conclude that the court properly denied the motion in reliance on the consent exception to the warrant requirement. “[0]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [or seizure] that is conducted pursuant to consent.” (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 699 , 817 A.2d 76 (2003).

2009However, the state had a strong case in that there was evidence that DNA analysis had confirmed that sperm found inside the victim’s vagina contained genetic material that matched the DNA of the petitioner. “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correct

2009However, the state had a strong case in that there was evidence that DNA analysis had confirmed that sperm found inside the victim’s vagina contained genetic material that matched the DNA of the petitioner. “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correct

2009However, the state had a strong case in that there was evidence that DNA analysis had confirmed that sperm found inside the victim’s vagina contained genetic material that matched the DNA of the petitioner. “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correct

2009However, the state had a strong case in that there was evidence that DNA analysis had confirmed that sperm found inside the victim’s vagina contained genetic material that matched the DNA of the petitioner. “[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted; internal quotation marks omitted.) Mitchell v. Commissioner of Correct

2006Rather, he maintained that, although they attempted to engage in consensual sexual intercourse, they were unable. 10 Had the defendant made such a request, however, it is questionable whether a consent instruction would be mandatory. “[A] fair reading of [Smith and State v. Jeffrey, 220 Conn. 698 , 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224 , 112 S. Ct. 3041 , 120 L.

2006Rather, he maintained that, although they attempted to engage in consensual sexual intercourse, they were unable. 10 Had the defendant made such a request, however, it is questionable whether a consent instruction would be mandatory. “[A] fair reading of [Smith and State v. Jeffrey, 220 Conn. 698 , 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224 , 112 S. Ct. 3041 , 120 L.

2006Rather, he maintained that, although they attempted to engage in consensual sexual intercourse, they were unable. 10 Had the defendant made such a request, however, it is questionable whether a consent instruction would be mandatory. “[A] fair reading of [Smith and State v. Jeffrey, 220 Conn. 698 , 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224 , 112 S. Ct. 3041 , 120 L.

2006Rather, he maintained that, although they attempted to engage in consensual sexual intercourse, they were unable. 10 Had the defendant made such a request, however, it is questionable whether a consent instruction would be mandatory. “[A] fair reading of [Smith and State v. Jeffrey, 220 Conn. 698 , 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224 , 112 S. Ct. 3041 , 120 L.

2001The consent clause states that "Allstate will not pay any damages an insured person is legally entitled to recover because of: 1. bodily injury when a settlement has been made without our written consent." (Emphasis in original.) (See Allstate's memorandum in support of the motion for summary judgment [Allstate's memo], attachment to Exhibit D, p. 17.) "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual

2001The consent clause states that "Allstate will not pay any damages an insured person is legally entitled to recover because of: 1. bodily injury when a settlement has been made without our written consent." (Emphasis in original.) (See Allstate's memorandum in support of the motion for summary judgment [Allstate's memo], attachment to Exhibit D, p. 17.) "Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual

2001"Adopting a functional approach to this fourth amendment issue, the consent exception reflects a fair accommodation between constitutional requirements and the encouragement of effective law CT Page 4044 enforcement with the resolution to be made under the facts and circumstances of each case." Id., 247 .

2000See Willimantic Car Wash, Inc. v. Zoning Board of Appeals , 247 Conn. 732 , 724 A.2d 1108 (1999) (facts involved General Statutes § 8-8 (n) and a settlement); Ralto Developers, Inc. v. Environmental Impact Commission , 220 Conn. 54 , 594 A.2d 981 (1991) (facts involved General Statutes § 22a-43 (c) and a settlement); and Dietzel v. Planning Commission , 60 Conn. App. 153 , ___ A.2d ___ (2000) (facts involved General Statutes §§ 22a-19 (a) and 8-8 (n) and a settlement).

2000See Willimantic Car Wash, Inc. v. Zoning Board of Appeals , 247 Conn. 732 , 724 A.2d 1108 (1999) (facts involved General Statutes § 8-8 (n) and a settlement); Ralto Developers, Inc. v. Environmental Impact Commission , 220 Conn. 54 , 594 A.2d 981 (1991) (facts involved General Statutes § 22a-43 (c) and a settlement); and Dietzel v. Planning Commission , 60 Conn. App. 153 , ___ A.2d ___ (2000) (facts involved General Statutes §§ 22a-19 (a) and 8-8 (n) and a settlement).

2000See Willimantic Car Wash, Inc. v. Zoning Board of Appeals , 247 Conn. 732 , 724 A.2d 1108 (1999) (facts involved General Statutes § 8-8 (n) and a settlement); Ralto Developers, Inc. v. Environmental Impact Commission , 220 Conn. 54 , 594 A.2d 981 (1991) (facts involved General Statutes § 22a-43 (c) and a settlement); and Dietzel v. Planning Commission , 60 Conn. App. 153 , ___ A.2d ___ (2000) (facts involved General Statutes §§ 22a-19 (a) and 8-8 (n) and a settlement).

1995The court, however, expressly reserved the question of whether the state had acquired criminal jurisdiction over the reservation because it concluded that the bingo laws were not criminal laws, but rather were “civil/regulatory.” In Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612 , 615 n.3, 587 A.2d 139 (1991), this court misstated the holding of McGuigan in dicta.

1995The court, however, expressly reserved the question of whether the state had acquired criminal jurisdiction over the reservation because it concluded that the bingo laws were not criminal laws, but rather were “civil/regulatory.” In Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612 , 615 n.3, 587 A.2d 139 (1991), this court misstated the holding of McGuigan in dicta.

1991This court is in agreement with the trial court in Ringwood, supra, that contract law and not property law should govern this matter.

1990Although the defendant neither requested the instruction nor objected to the charge as given, the trial court must give a consent instruction when, viewed in the light most favorable to the defendant’s claim; State v. Fuller, 199 Conn. 273, 279 , 506 A.2d 556 (1986); State v. Webley, 17 Conn. App. 200, 204 , 551 A.2d 428 (1988); the words or conduct of the complainant under all the circumstances would justify a reasonable belief that the victim had consented.

1990Although the defendant neither requested the instruction nor objected to the charge as given, the trial court must give a consent instruction when, viewed in the light most favorable to the defendant’s claim; State v. Fuller, 199 Conn. 273, 279 , 506 A.2d 556 (1986); State v. Webley, 17 Conn. App. 200, 204 , 551 A.2d 428 (1988); the words or conduct of the complainant under all the circumstances would justify a reasonable belief that the victim had consented.

1990Although the defendant neither requested the instruction nor objected to the charge as given, the trial court must give a consent instruction when, viewed in the light most favorable to the defendant’s claim; State v. Fuller, 199 Conn. 273, 279 , 506 A.2d 556 (1986); State v. Webley, 17 Conn. App. 200, 204 , 551 A.2d 428 (1988); the words or conduct of the complainant under all the circumstances would justify a reasonable belief that the victim had consented.

1990Although the defendant neither requested the instruction nor objected to the charge as given, the trial court must give a consent instruction when, viewed in the light most favorable to the defendant’s claim; State v. Fuller, 199 Conn. 273, 279 , 506 A.2d 556 (1986); State v. Webley, 17 Conn. App. 200, 204 , 551 A.2d 428 (1988); the words or conduct of the complainant under all the circumstances would justify a reasonable belief that the victim had consented.

1987Our Supreme Court addressed the difficult question of the exigent circumstances exception to the warrant requirement in State v. Guertin, 190 Conn. 440 , 461 A.2d 963 (1983). “ ‘The phrase “exigent circumstances” refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978).

1987Our Supreme Court addressed the difficult question of the exigent circumstances exception to the warrant requirement in State v. Guertin, 190 Conn. 440 , 461 A.2d 963 (1983). “ ‘The phrase “exigent circumstances” refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978).

1987Of relevance to this appeal is the following order: “Motion granted as to any pictures taken at the scene on October 13, 1982, by the detectives and any diagrams or sketches made by them from measurements or observations taken at the scene by them.” In granting this part of the motion to suppress, the trial court rejected the state’s argument that the search fell within the consent exception to the warrant requirement. 3 The court also rejected the application of the emergency or exigency exception to the search warrant requirement articulated in Mincey v. Arizona, 437 U.S. 385 , 98 S. Ct. 240

1987Of relevance to this appeal is the following order: “Motion granted as to any pictures taken at the scene on October 13, 1982, by the detectives and any diagrams or sketches made by them from measurements or observations taken at the scene by them.” In granting this part of the motion to suppress, the trial court rejected the state’s argument that the search fell within the consent exception to the warrant requirement. 3 The court also rejected the application of the emergency or exigency exception to the search warrant requirement articulated in Mincey v. Arizona, 437 U.S. 385 , 98 S. Ct. 240