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Connecticut Supreme Court Overrules Aquino, Holding Appeal Not Moot Where Defendant Deported During Pendency but Unclear Whether Appealed Conviction Sole Basis for Deportation

Holds Model Jury Instruction 2.6-14 Failed to Correctly Inform Jury on Investigative Inadequacy

by Douglas Ankney

The Supreme Court of Connecticut held that Model Jury Instruction 2.6-14 failed to correctly inform the jury of Wagner Gomes’ right to “rely upon relevant deficiencies or lapses in the police investigation to raise the specter of reasonable doubt” as well as the jury’s right to consider those deficiencies in determining whether the State had proved his guilt beyond a reasonable doubt.

However, before reaching the merits of the case, the Court addressed the jurisdictional issue of mootness since Gomes had been deported while his appeal was pending, but the record was unclear whether his conviction in this case was the sole reason for his deportation. The Court overruled the leading case on the issue, State v. Aquino, 901 A.2d 1194 (Conn. 2006), explaining that it was wrongly decided and held that Gomes’ appeal is not moot because a favorable decision can provide him a measure of relief with respect to the collateral consequences of a criminal conviction.

The Aquino Court held that a defendant’s deportation during the pendency of an appeal renders the appeal moot where the record fails to state whether the defendant’s guilty plea was the sole reason for the deportation because it isn’t clear that the defendant could obtain any practical relief.

In the present case, the Court stated that Aquino is contrary to state case law on collateral consequences jurisprudence, specifically the well established “presumption of collateral consequences” automatically attaching to criminal convictions. State v. Jerzy G., 162 A.3d 692 (Conn. 2017). Quoting State v. McElveen, 802 A.2d 74 (Conn. 2002), the Court explained “a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief.” Because there’s a “conclusive presumption of prejudicial collateral consequences” that attaches to a criminal conviction due to the “undesirable legal disabilities” it imposes as well as the damage to one’s reputation, the Court concluded that “Aquino was wrongly decided and must be overruled.” Additionally, the Court concluded that Gomes’ appeal is “not moot because a favorable decision on the merits can provide [him] with a measure of practical relief.”

The Court took a moment to note that Aquino seems to have been based on Perez v. Greiner, 296 F.3d 123 (2d Cir. 2002), a federal case with materially similar facts. But the Court explained that reliance on Perez was in error because the treatment of collateral consequences of a criminal conviction was the dispositive issue, but federal law and Connecticut law take completely different approaches to the issue. Under federal law, reputational damage is not recognized as a cognizable collateral consequence of a criminal conviction. See Spencer v. Kemna, 523 U.S. 1 (1998). In contrast, Connecticut law recognizes the collateral consequences of reputational damage. See Jerzy G.

The Court then turned to the facts of the present case. Gomes and Raphael Moruis were separated after a fight at the Brazilian Sports Club (“Club”), with Gomes taken to the Club’s front porch and Moruis taken to the back patio. Edilene Brandao was at the patio with Moruis. She had her back to a fence while asking Moruis why he was fighting. Moruis answered, “it’s him.” Brandao turned to face the fence. A man on the other side of the fence cut her forehead with a bottle. The owner of the Club heard her scream. As the owner called the police, he saw Gomes running away from the Club.

Two weeks later, Brandao identified Gomes from a photo array shown to her at the Bridgeport Police Department. She testified that Gomes was the person who assaulted her.

Gomes presented the following evidence of an inadequate police investigation: (1) when dispatched to the Club, police were informed that Moruis was the suspected aggressor; (2) when police arrived at the Club, several patrons came forward stating they had information on what had happened to Brandao, but officers neither recorded those statements nor obtained their contact information; (3) shortly after the assault on Brandao, a group of Club patrons beat Moruis before officers arrived; and (4) officers questioned Moruis as a witness and not as a suspect in the assault of Brandao.

Gomes also presented alibi testimony that he had left the Club before the assault on Brandao and that Brandao’s prior relationship with Moruis induced her to identify Gomes to protect Moruis (implying Moruis had assaulted Brandao).

Gomes requested the jury be instructed: “(1) You have heard some arguments that the police investigation was inadequate and biased. (2) The issue for you to decide is not the thoroughness of the investigation or the competence of the police. (3) However, you may consider evidence of the police investigation as it might relate to any weakness in the state’s case. (4) Again, the only issue you have to determine is whether the state, in light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the counts with which he is charged.” The trial court rejected the requested instruction. Instead, the court gave an instruction identical to the Model Jury Instruction on investigative inadequacy that eliminated point (3) of the requested instruction.

The jury convicted Gomes, and he appealed. Gomes argued the omission of point (3) deprived him of his right to present a defense of investigative inadequacy. The Appellate Court rejected his claim and affirmed. The Connecticut Supreme Court granted Gomes further review.

The Court observed “a fundamental element of due process of law is the right of a defendant charged with a crime to establish a defense.” State v. Collins, 10 A.3d 1005 (Conn. 2011). The applicable standard of review is whether there is a reasonable possibility the jury was mislead in reaching its verdict. Id. The test of a court’s jury charge is whether “it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law.” Id. Trial courts are not required to give instructions in exact conformance with the words of a requested instruction as long as the given instructions are correct in law. Id.

In State v. Williams, 363 A.2d 72 (Conn. 1975), the Supreme Court considered for the first time a claim of instructional error relative to the competence of a police investigation. The instruction appraised the jury that they had heard discussion of the competency of the investigation; that the issue before the jury was not to decide the thoroughness of the investigation; but that the issue before the jury was to decide whether the State had carried its burden to prove Williams’ guilt beyond a reasonable doubt. The Williams Court held the instruction “gave the jury a clear understanding of the issues involved and a proper guidance in determining those issues.” Id.

However, in Collins, the Supreme Court acknowledged that juries are not instructed to acquit based upon the shoddiness of a police investigation because conducting a thorough, professional investigation is not an element of the State’s case. But “[a] defendant may … rely upon relevant deficiencies or lapses in the police investigation to raise a specter of reasonable doubt, and the trial court violates his right to a fair trial by precluding the jury from considering evidence to that effect.” Collins.A judge may not remove the issue of a biased or faulty police investigation from the jury. Commonwealth v. Avila, 912 N.E.2d 1014 (Mass. 2009).

In the instant case, the trial court gave Model Jury Instruction 2.6-14, which had been patterned after the instruction given in Williams. The Court concluded that by omitting point (3) of Gomes’ requested instruction, it was reasonably probable that the jury was mislead into believing Gomes did not have a right to present evidence of inadequate police investigation and that the jury was not to consider such evidence in deciding whether there was reasonable doubt as to Gomes’ guilt. The Court concluded that Model Jury Instruction 2.6-14 deprived Gomes of a fair trial.

Accordingly, the Court reversed the judgement of the Appellate Court and remanded to that court with directions to reverse and remand to the trial court for a new trial. See: State v. Gomes, 256 A.3d 131 (Conn. 2021). 

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Related legal cases

State v. Gomes

Spencer v. Kemna

523 U.S. 1; 118 S. Ct. 978; 140 L. Ed. 2d 43


No. 96-7171

November 12, 1997, Argued

March 3, 1998, Decided


DISPOSITION: 91 F.3d 1114, affirmed.


On October 17, 1990, petitioner began serving concurrent three-year sentences for convictions of felony stealing and burglary, due to expire on October 16, 1993. On April 16, 1992, he was released on parole, but on September 24, 1992, that parole was revoked and he was returned to prison. Thereafter, he sought to invalidate the parole revocation, first filing habeas petitions in state court, and then the present federal habeas petition. Before the District Court addressed the merits of the habeas petition, petitioner's sentence expired, and so the District Court dismissed the petition as moot. The Eighth Circuit affirmed.

Held: The expiration of petitioner's sentence has caused his petition to be moot because it no longer presents an Article III case or controversy.

(a) An incarcerated convict's (or a parolee's) challenge to his conviction always satisfies the case-or-controversy requirement because the incarceration (or the restriction imposed by the terms of parole) constitutes a concrete injury caused by the conviction and redressable by the conviction's invalidation. Once the sentence has expired, however, the petitioner must show some concrete and continuing injury other than the now-ended incarceration (or parole) -- some "collateral consequence" of the conviction -- if the suit is to be maintained. In recent decades, this Court has presumed that a wrongful conviction has continuing collateral consequences (or, what is effectively the same, has counted collateral consequences that are remote and unlikely to occur). Sibron v. New York, 392 U.S. 40, 55-56, 20 L. Ed. 2d 917, 88 S. Ct. 1889. However, in Lane v. Williams, 455 U.S. 624, 71 L. Ed. 2d 508, 102 S. Ct. 1322, the Court refused to extend this presumption of collateral consequences to the revocation of parole. The Court adheres to that refusal, which leaves only the question whether petitioner has demonstrated collateral consequences. Pp. 5-12.

(b) Petitioner's asserted injuries-in-fact do not establish collateral consequences sufficient to state an Article III case or controversy. That his parole revocation could be used to his detriment in a future parole proceeding is merely a possibility rather than a certainty or a probability. That the revocation could be used to increase his sentence in a future sentencing proceeding is, like a similar claim rejected in Lane, contingent on petitioner's violating the law, being caught and convicted. Likewise speculative are petitioner's other allegations of collateral consequence -- that the parole revocation could be used to impeach him should he appear as a witness in future proceedings, and that it could be used directly against him should he appear as a defendant in a criminal proceeding. Pp. 12-14.

(c) The Court finds no merit in petitioner's remaining arguments -- that since he is foreclosed from pursuing a damages action under 42 U.S.C. § 1983 unless he can establish his parole revocation's invalidity, see Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364, his action to establish that invalidity cannot be moot; that this case falls within the exception to the mootness doctrine for cases that are "capable of repetition, yet evading review"; and that the mootness of his case should be ignored because it was caused by the dilatory tactics of the state attorney general's office and by district court delays. Pp. 15-16.

91 F.3d 1114, affirmed.

COUNSEL: John W. Simon argued the cause for petitioner.

James R. Layton argued the cause for respondents.

JUDGES: SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which O'CONNOR, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring opinion. STEVENS, J., filed a dissenting opinion.

OPINION: [***47] [**981] [*3]

JUSTICE SCALIA delivered the opinion of the Court.

In his petition for a writ of habeas corpus, Randy G. Spencer seeks to invalidate a September 24, 1992, order revoking his parole. Because Spencer has completed the entire term of imprisonment underlying the parole revocation, we must decide whether his petition is moot.


On October 17, 1990, petitioner began serving concurrent 3-year sentences in Missouri on convictions of felony stealing and burglary. On April 16, 1992, he was released on parole, but on September 24, 1992, the Missouri Board of Probation and Parole, after hearing, issued an Order of Revocation revoking the parole. The order concluded that petitioner had violated three of the conditions, set forth in Missouri's Code of Regulations, Title 14, § 80-3.010 (1992), that a Missouri inmate must comply with in order to remain on parole:
"NOW, THEREFORE, after careful consideration of evidence presented, said charges which warrant revocation are sustained, to wit: [*4]

# 1-LAWS: I will obey all federal and state laws, municipal and county ordinances. I will report all arrests to my Probation and Parole Officer within 48 hours.

# 6-DRUGS: I will not have in my possession or use any controlled substance except as prescribed for me by a licensed medical practitioner.

# 7-WEAPONS: I will, if my probation or parole is based on a misdemeanor involving firearms or explosives, or any felony charge, not own, possess, purchase, receive, sell or transport any firearms, ammunition or explosive device or any dangerous weapon as defined by [***48] federal, state or municipal laws or ordinances." App. 55-56.

The specific conduct that violated these conditions was described only by citation of the parole violation report that the Board used in making its determination: "Evidence relied upon for violation is from the Initial Violation Report dated 7-27-92." Id., at 56.

That report, prepared by State Probation and Parole Officer Jonathan Tintinger, summarized a June 3, 1992, police report prepared by the Kansas City, Missouri Police Department, according to which a woman had alleged that petitioner, after smoking crack cocaine with her at a local crack house and later at his own home, pressed a screwdriver against her side and raped her. According to the Kansas City report, petitioner had admitted smoking crack cocaine with the woman, but claimed that the sexual intercourse between them had been consensual. Officer Tintinger's report then described his own interview with petitioner, at which petitioner again admitted smoking crack cocaine with the woman, denied that he had pressed a screwdriver to her side, and did not respond to the allegation of rape. Finally, [**982] after noting that "Spencer [was] a registered sex offender, having been given a five-year prison sentence for Sodomy in 1983," App. 75, Officer Tintinger's report tentatively recommended that petitioner's parole be continued, but that he be [*5] placed in a drug treatment center. The report withheld making "an ultimate recommendation based on the alleged [rape and dangerous weapon] violations" until the prosecuting attorney's office had a chance to dispose of those charges. Id., at 76. "In the event formal charges are ultimately filed," it said, "a separate recommendation will be forthcoming." Ibid. Petitioner was never charged, but a September 14, 1992, follow-up report prepared by Institutional Parole Officer Peggy McClure concluded that "there [did] appear to be significant evidence that Spencer had violated the conditions of his parole as stated," and recommended that petitioner's parole be revoked. Id., at 64. Officer McClure's report is not mentioned in the Order of Revocation.

On being returned to prison, petitioner began his efforts to invalidate the Order of Revocation. He first sought relief in the Missouri courts, but was rejected by the Circuit Court of DeKalb County, the Missouri Court of Appeals, and, finally, the Missouri Supreme Court. Then, on April 1, 1993, just over six months before the expiration of his 3-year sentence, petitioner filed a petition for a writ of habeas corpus, see 28 U.S.C. § 2254, in the United States District Court for the Western District of Missouri, alleging that he had not received due process in the parole revocation proceedings. n1 [*6] Over petitioner's objections, the District Court granted the State two requested extensions of time to respond to the petition, deferring the deadline from June 2, 1993, until July 7, 1993. On July 14, 1993, after [***49] receiving the State's response, petitioner filed a lengthy "Motion and Request for Final Disposition of this Matter," in which he requested that the District Court expedite decision on his case in order to prevent his claim from becoming moot. Before the District Court responded to this motion, however, on August 7, 1993, petitioner was re-released on parole, and, two months after that, on October 16, 1993, the term of his imprisonment expired. On February 3, 1994, the District Court "noted" petitioner's July motion, stating that "the resolution of this case will not be delayed beyond the requirements of this Court's docket." App. 127. Then, on August 23, 1995, the District Court dismissed petitioner's habeas petition. "Because," it said, "the sentences at issue here have expired, petitioner is no longer 'in custody' within the meaning of 28 U.S.C. § 2254(a), and his claim for habeas corpus relief is moot." Id., at 130.

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n1 Specifically, according to petitioner's brief, he contended:

"1. The Board denied him his right to a preliminary revocation hearing on the armed criminal action accusation. . . .

2. The Board denied him a hearing on the cancellation of his conditional release date.

3. The Board . . .:

a. . . . denied him the right to confront and cross-examine any of the witnesses against him. . . .

b. . . . gave him no notice that the entire case for revoking his parole would be the out-of-court statements in the violation report.

c. . . . denied him the right to representation by a person of his choice.
4. The Board failed to apprise him of the fact of its decision to revoke his parole, and of the evidence it relied on in doing so, for four months, when its regulations required that . . . the parolee be provided [such a] statement within ten working days from the date of the decision." See Brief for Petitioner 5-6.

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The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment, n2 concluding that, under our decision in Lane v. Williams, 455 U.S. 624, 632, 71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982), petitioner's claim had become moot because he suffered no "collateral consequences" of the revocation order. 91 F.3d 1114 (1996). (It acknowledged that this interpretation of Lane did not accord with that of the Second and Ninth Circuits in United States v. Parker, 952 F.2d 31 (CA2 1991), [*7] and Robbins v. Christianson, 904 F.2d 492 (CA9 1990)). We granted certiorari. 520 U.S. 1165 [**983] (1997).

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n2 By the time the case reached the Eighth Circuit, petitioner was once again in prison, this time serving a 7-year sentence for attempted felony stealing. He is still there, and the State informs us that he is scheduled to be released on parole on January 24, 1999. See Brief for Respondents 8, n. 4.

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The District Court's conclusion that Spencer's release from prison caused his petition to be moot because it no longer satisfied the "in custody" requirement of the habeas statute was in error. HN1 Spencer was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the "in custody" provision of 28 U.S.C. § 2254 requires. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Maleng v. Cook, 490 U.S. 488, 490-491, 104 L. Ed. 2d 540, 109 S. Ct. 1923 (1989) (per curiam). The more substantial question, however, is whether petitioner's subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution. "HN2 This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. . . . The parties must continue to have a 'personal stake in the outcome' of the lawsuit." Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478, 108 L. Ed. 2d 400, 110 S. Ct. 1249 (1990). See also Preiser v. Newkirk, 422 U.S. 395, 401, 45 L. Ed. 2d 272, [***50] 95 S. Ct. 2330 (1975). This means that, throughout the litigation, the plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis, supra, at 477.

HN3 An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole -- some "collateral consequence" of the conviction -- must exist if the suit is to be maintained. See, e.g., Carafas, supra, 391 U.S. 234 at 237-238. [*8] In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur). See Sibron v. New York, 392 U.S. 40, 55-56, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968).

The present petitioner, however, does not attack his convictions for felony stealing and burglary, which he concedes were lawful; he asserts only the wrongful termination of his parole status. The reincarceration that he incurred as a result of that action is now over, and cannot be undone. Subsistence of the suit requires, therefore, that continuing "collateral consequences" of the parole revocation be either proven or presumed. And the first question we confront is whether the presumption of collateral consequences which is applied to criminal convictions will be extended as well to revocations of parole. To answer that question, it is helpful to review the origins of and basis for the presumption.

Originally, we required collateral consequences of conviction to be specifically identified, and we accepted as sufficient to satisfy the case-or-controversy requirement only concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses). Thus, in St. Pierre v. United States, 319 U.S. 41, 87 L. Ed. 1199, 63 S. Ct. 910 (1943) (per curiam), one of the first cases to recognize collateral consequences of conviction as a basis for avoiding mootness, we refused to allow St. Pierre's challenge to a contempt citation after he had completed his 5-month sentence, because "petitioner [has not] shown that under either state or federal law further penalties or disabilities can be imposed on him as a result of the judgment which has now been satisfied," id., at 43. We rejected St. Pierre's argument that the possibility that "the judgment [could] impair his credibility as [a] witness in any future legal proceeding" was such a penalty or disability, because "the moral stigma of a judgment which no [*9] longer [**984] affects leg



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